Jerry Ann Winters v. Diamante Members Club, Inc. And Diamante, a Private Membership Golf Club, LLC

2022 Ark. App. 369

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

Opinion

Cite as 2022 Ark. App. 369 ARKANSAS COURT OF APPEALS DIVISION I No. CV-19-768

JERRY ANN WINTERS Opinion Delivered September 28, 2022 APPELLANT APPEAL FROM THE SALINE COUNTY CIRCUIT COURT V. [NO. 63CV-16-797]

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

STEPHANIE POTTER BARRETT, Judge

This is a companion case to Faigin v. Diamante, a Private Membership Golf Club, LLC,

2022 Ark. App. 361, also handed down today. The background facts and procedural history

are set out in that opinion. Only facts specific to appellant will be detailed below. Appellant,

Jerry Ann Winters, is the owner of a lot 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, appellant argues the same points on appeal as the appellants in Faigin.

As detailed in Faigin, res judicata precludes appellant’s claims; thus, we affirm the circuit

court’s application of the doctrine and grant of summary judgment to New Club. I. Background Facts

Jerry Leo Winters and appellant, Jerry Ann Winters (collectively “the Winters”),

purchased a lot in the Diamante subdivision on October 11, 1994. In or around 2007, the

Winters ceased making monthly club payments, and on January 19, 2007, Old Club filed a

lien on the property for unpaid monthly dues. On September 23, 2016, Old Club filed a

complaint in foreclosure against the Winters. Appellant filed an answer alleging that Old

Club’s claim for unpaid dues was barred by the statute of limitations, and attached an

affidavit wherein she alleged that she and Mr. Winters had bought the lot together; however,

they were divorced in 1997, and her ex-husband died on March 2, 2015.

New Club filed a motion to substitute itself as plaintiff and, subsequently, a motion

for summary judgment against the Winters on December 3, 2018. Appellant filed an

amended answer, and New Club responded by filing a motion to strike arguing that the

amendment asserted new allegations against both Old Club and New Club that were not

properly pled. Finally, appellant filed a cross-motion for summary judgment alleging “unique

facts and circumstances” and requested a prompt hearing. After a hearing, the circuit court

entered its final judgment granting New Club’s summary-judgment motion on the basis of

res judicata. Furthermore, the court granted New Club’s motion for attorney’s fees and

costs, and appellant filed timely notices of appeal.

On April 27, 2020, appellant filed a motion in this court to substitute her brief

wherein she argued that the initial brief failed to fully address the defenses unique to her

case and, therefore, required substitution. New Club objected, and we denied appellant’s

2 motion to substitute her brief on May 20, 2020. Subsequently, appellant filed a reply brief

raising facts and arguments that were not raised initially. New Club responded with a

motion to strike arguing that appellant’s reply is merely an attempt to circumvent this court’s

order denying appellant’s motion to substitute brief. On July 15, 2020, we entered an order

passing on the motion until case submission.

II. Discussion

New Club’s motion to strike appellant’s reply brief is granted because an argument

made for the first time on reply comes too late. Orintas v. Point Lookout Prop. Owners Assn.

Bd. of Dirs., 2015 Ark. App. 648, at 2–3, 476 S.W.3d 174, 176. Unless an appellant opens

the briefing with all its arguments for reversal, the appellee has no opportunity to respond

to those arguments in writing. Id. at 3, 476 S.W.3d at 176. Because appellant raises new

arguments in her reply brief, New Club’s motion to strike those arguments is granted.

The circuit court concluded that appellant was 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. Appellant argues on appeal that she was not a party in Dye; however, we find no

merit to this argument. To the contrary, in her motion for summary judgment, appellant

argued that she was an unnamed party in the Dye class action. Accordingly, for the reasons

set forth in Faigin and incorporated herein by reference, we hold that the circuit court

properly applied res judicata in granting summary judgment to New Club.

III. Conclusion

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

accordingly, the circuit court’s order granting summary judgment to New Club is affirmed.

Having concluded that res judicata bars relitigation of appellant’s claims, 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.