Heinrich v. Anders

2017 Ark. App. 153

• Court: Court of Appeals of Arkansas
• Decided: March 8, 2017
• Docket: CV-16-534
• Status: Published

Opinion

Cite as 2017 Ark. App. 153

ARKANSAS COURT OF APPEALS DIVISION IV No. CV-16-534

Opinion Delivered March 8, 2017

LARRY DEWAYNE HEINRICH AND APPEAL FROM THE JEFFERSON SETH HEINRICH COUNTY CIRCUIT COURT APPELLANTS [NO. 35CV-13-253]

V. HONORABLE ROBERT H. WYATT, JR., JUDGE

ALLISON ANDERS REMANDED TO SUPPLEMENT THE APPELLEE RECORD AND ADDENDUM; REBRIEFING ORDERED

LARRY D. VAUGHT, Judge

Appellants Larry Heinrich and Seth Heinrich appeal the Jefferson County Circuit

Court’s findings of fact and conclusions of law entered on June 2, 2016, in which the court

found (1) that David Myhand breached the contract for the sale of real property, located at

6712 Sheridan Road, Pine Bluff, Arkansas, that he entered into with Larry and appellee Allison

Anders;1 (2) that Larry fraudulently transferred the property to Seth, Larry and Allison’s son;

(3) that Allison’s March 5, 2001 power of attorney in favor of Larry was not used in the

conveyance of the property; and (4) that the unrecorded and unsigned assignment of the real

estate contract did not meet the requirements of the statute of frauds. We cannot reach the

1Larryand Allison were married at the time they entered into the contract with David. They divorced in January 2012. Cite as 2017 Ark. App. 153

merits of the appeal because essential documents were omitted from the record and

addendum. We remand to supplement the record and addendum, and we order rebriefing.

On May 16, 2013, Allison filed this action against Larry, Seth, and David alleging that

David was in breach of the contract for the sale of real property that he entered into with

Larry and Allison on May 4, 2009. Her complaint also alleged that Larry had fraudulently

conveyed the property to their son, Seth. At a September 23, 2014 hearing, counsel for Larry

and Seth moved for dismissal, arguing that the circuit court lacked jurisdiction to hear the case

because the disposition of the property had been adjudicated as part of Larry and Allison’s

prior divorce proceeding; thus, Allison’s claim was barred by res judicata. During the hearing,

the circuit court requested a copy of the divorce file, reviewed it, suspended the hearing, and

ordered the parties to file briefs on the jurisdiction issue.

On January 12, 2015, the circuit court entered a letter opinion, citing paragraph two of

the parties’ 2012 divorce decree and stating that “the decree did not address any specific real

property, either by reference or otherwise.” The court, in its letter opinion, further found that

res judicata did not apply to Allison’s cause of action for breach of contract because the matter

had not previously been adjudicated. After a second hearing on April 4, 2016, the circuit court

entered its findings of facts and conclusions of law. This appeal followed.2

Larry and Seth’s first point on appeal is that the circuit court erred in finding that res

judicata did not apply and that the circuit court had jurisdiction. They contend that Allison’s

2David is not a party to this appeal.

2 Cite as 2017 Ark. App. 153

cause of action with regard to the property had been adjudicated in the divorce proceedings

in another court.

The claim-preclusion aspect of res judicata forecloses relitigation in a subsequent suit

when (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on

proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved

the same claim or cause of action; and (5) both suits involved the same parties or their privies.

McCoy v. Jackson, 2011 Ark. App. 456, at 2 (citing Pentz v. Romine, 75 Ark. App. 274, 57 S.W.3d

235 (2001)). Claim preclusion bars not only the relitigation of issues that were actually litigated

in the first suit but also those that could have been litigated but were not. Id.

In order to determine whether the circuit court properly denied the motion to dismiss

based on res judicata, “we must be able to determine the specific claims and issues that were

presented and resolved in the prior suit.” McCoy, 2011 Ark. App. 456, at 2 (citing McNeil v.

Lillard, 79 Ark. App. 69, 70, 86 S.W.3d 389, 390 (2002)). In McNeil, we held that we could not

make such a determination without reviewing the judgment in the prior proceeding; therefore,

we ordered rebriefing because the appellant failed to include the letter opinion from the first

trial in her addendum. 79 Ark. App. at 70–71, 86 S.W.3d at 390–91.

In the case at bar, neither the 2012 divorce decree nor the parties’ trial briefs on the

jurisdiction issue are included in the addendum or record. Therefore, we order Larry and Seth

to supplement the record and addendum accordingly. Ark. R. App. P.–Civ. 6(e) (2016); Ark.

Sup. Ct. R. 4-2(a)(8)(A)(i) (2016). We further note that the circuit court’s January 12, 2015

letter opinion denying Larry and Seth’s motion to dismiss for lack of jurisdiction is not

3 Cite as 2017 Ark. App. 153

included in the addendum in violation of Rule 4-2(a)(8)(A)(i). We order Larry and Seth to

include this document in the supplemental addendum.

Larry and Seth’s second point on appeal is that the circuit court erred in finding that

Allison’s power of attorney in favor of Larry did not effectuate a valid transfer of the property

from David to Seth. We cannot reach the merits of this argument because Larry and Seth have

failed to include the power of attorney and the assignment of the real estate contract in the

addendum in violation of Rule 4-2(a)(8)(A)(i). We order Larry and Seth to include these

documents in the supplemental addendum.

In conclusion, we remand and direct Larry and Seth to file with our clerk’s office,

within thirty days from the date of this order, a certified, supplemental record. Ark. R. App.

P.–Civ. 6(e). Upon filing the supplemental record, Larry and Seth shall have fifteen days in

which to file a substituted addendum and brief. Ark. Sup. Ct. R. 4-2(b)(3). Upon filing the

supplemental addendum and brief, Allison shall have fifteen days to revise or supplement her

brief. We encourage Larry and Seth to carefully review our rules to ensure that no additional

deficiencies exist. According to Rule 4-2(b)(3), if Larry and Seth fail to file a complying

addendum and brief within the prescribed time, the findings of fact and conclusions of law

may be affirmed for noncompliance with the rule. McNeil, 79 Ark. App. at 71–72, 86 S.W.3d

at 391.

Remanded to supplement the record and addendum; rebriefing ordered.

WHITEAKER and MURPHY, JJ., agree.

The Brad Hendricks Law Firm, by: Lloyd W. Kitchens, for appellants.

Maxie G. Kizer, P.A., by: Maxie G. Kizer, for appellee.