George Hunter and Joan Hunter v. Diamante Members Club, Inc. And Diamante, a Private Membership Golf Club, LLC

2022 Ark. App. 370

• Court: Court of Appeals of Arkansas
• Decided: September 28, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 370 ARKANSAS COURT OF APPEALS DIVISION I No. CV-19-770

GEORGE HUNTER AND JOAN Opinion Delivered September 28, 2022 HUNTER APPELLANTS APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CV-16-762] V.

HONORABLE GRISHAM PHILLIPS, DIAMANTE MEMBERS CLUB, INC.; JUDGE AND DIAMANTE, A PRIVATE MEMBERSHIP GOLF CLUB, LLC AFFIRMED APPELLEES

STEPHANIE POTTER BARRETT, Judge

This is a companion case to Faigin v. Diamante Members Club, Inc., 2022 Ark. App.

361, also handed down today. The background facts and procedural history are set out in

that opinion. Only facts specific to appellants will be detailed below. Appellants, George

Hunter and Joan Hunter (collectively “appellants”), own property within the Diamante

subdivision located in Hot Springs Village, Arkansas. Appellees, Diamante, A Private

Membership Golf Club, LLC (“Old Club”); and Diamante Members Club, Inc. (“New

Club”), respectively, are the former and current owners of a private golf club associated with

the developed subdivision.

In this appeal, appellants argue the same points on appeal as in the appellants in

Faigin as well as two issues specific to the Hunters. As detailed in Faigin, res judicata prevents appellants’ claims; thus, we affirm the circuit court’s application of the doctrine and grant

of summary judgment to appellees.

I. Background Facts

Appellants purchased a lot in the Diamante subdivision in 1996. On August 31,

2010, Old Club filed a complaint in foreclosure against appellants for unpaid monthly club

dues owed pursuant to the Declarations, which were fully discussed in Faigin. In response,

appellants filed an amended answer and counterclaim against Old Club. Appellants alleged

the foreclosure action was moot because they conveyed the lot back to Old Club and,

therefore, no longer owned property in the subdivision. Furthermore, appellants asserted a

counterclaim against Old Club for deceit as a result of an alleged deliberate intent of the

developer to induce potential buyers into purchasing a lot and the resulting golf

memberships in reliance on false representations. Old Club asserted that appellants’

counterclaim was barred by the statute of limitations and res judicata and, accordingly,

should be dismissed. On October 26, 2017, the circuit court dismissed appellants’

counterclaim against Old Club on the bases of the statute of limitations and res judicata.

New Club moved for summary judgment against the appellants on December 3,

2018. The circuit court entered a final judgment and decree of foreclosure granting

summary judgment to New Club on the basis of res judicata on May 31, 2019. The court

then awarded attorney’s fees and cost to New Club, and appellants filed a timely notices of

appeal.

2 II. Discussion

In addition to the points on appeal in Faigin, the appellants argue (1) that the

equitable claim of foreclosure was moot because they reconveyed the lot to Old Club; and

(2) reversal is required because New Club is not a real party in interest and lacks standing;

therefore, the circuit court erred in substituting New Club as plaintiff.

The circuit court concluded that appellants were attempting to relitigate claims that

had previously been decided or could have been decided in Dye v. Diamante a Private

Membership Golf Club, LLC, 2017 Ark. 42, 510 S.W.3d 759, and applied the doctrine of res

judicata. For the reasons set forth in Faigin, 2022 Ark. App. 361, and incorporated herein

by reference, we hold that the circuit court properly applied res judicata in granting summary

judgment to Old Club and New Club.

Additionally, appellants argue that the claim of foreclosure is moot because the

appellants reconveyed the lot back to Old Club; therefore, they were improperly denied their

constitutional right to a jury trial for alleged amounts owed to New Club. While the circuit

court declared appellants the owners of the lot in question, appellants did not obtain a ruling

on the validity of the reconveyance of the property back to Old Club. Because it was the

responsibility of the appellants to obtain a ruling on this issue, and they failed to do so, their

argument is not preserved for consideration on appeal. See Neal v. Sparks Reg’l Med. Ctr., 2012

Ark. 328, 422 S.W.3d 116.

Finally, appellants contend that New Club is not the real party in interest and lacks

standing; thus, the circuit court erred in substituting New Club in this matter for Old Club.

3 As we discussed in Faigin, New Club’s interest in the foreclosure action was acquired

pursuant to the assignment of Old Club’s interest to the pending litigation, judgment, and

liens to New Club. Any argument as to the legality of the assignment, or opposition thereto,

was not ruled on by the circuit court and, therefore, is precluded from our review.

Accordingly, the circuit court’s order of substitution is affirmed.

III. Conclusion

As in Faigin, we find that all the requirements of claim preclusion are met;

accordingly, the circuit court’s grant of summary judgment to appellees is affirmed. Having

concluded that res judicata bars relitigation of appellants’ claim, we need not consider the

other points on appeal.

Affirmed.

GLADWIN and GRUBER, JJ., agree.

Robert S. Tschiemer, for appellants.

Schnipper, Britton & Stobaugh, by: Beau Britton, for separate appellee Diamante

Membership Club, Inc.

McMillan, McCorkle & Curry, LLP, by: J. Philip McCorkle, for separate appellee

Diamante, a Private Membership Golf Club, LLC.