NATIONAL HOME CENTERS, INC. v. Coleman

283 S.W.3d 218, 373 Ark. 246, 2008 Ark. LEXIS 258
CourtSupreme Court of Arkansas
DecidedApril 17, 2008
Docket07-977
StatusPublished
Cited by1 cases

This text of 283 S.W.3d 218 (NATIONAL HOME CENTERS, INC. v. Coleman) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
NATIONAL HOME CENTERS, INC. v. Coleman, 283 S.W.3d 218, 373 Ark. 246, 2008 Ark. LEXIS 258 (Ark. 2008).

Opinion

Annbabelle Clinton Imber, Justice.

The instant appeal requires this court to analyze the issue of whether a lis pendens filed in conjunction with a creditor’s foreclosure action serves to bar the future claim of a materialman when its materialman’s lien is filed with the county recorder’s office after the lis pendens is filed, and the foreclosure action proceeds to final judgment without joinder of the materialman as a party to the action. In light of the facts in this case, we conclude that it does.

On August 13, 2004, Coleman Construction, LLC, granted Appellee Regions Bank a note and construction mortgage on the property described as

Lot 51, Pebble Beach Woods Addition to the City of Little Rock, Pulaski County, Arkansas. Also known as 2600 Valley Park Drive, Little Rock, Arkansas.

Within a few months, Coleman defaulted on the loan by ceasing construction on the property.

On January 4, 2005, Regions filed a complaint of foreclosure in the Pulaski County Circuit Court and a lis pendens in the county recorder’s office. The complaint listed Coleman Homes, LLC, and Stephen G. Coleman and Debra J. Coleman, individually, as defendants but did not list any other parties. On March 7, 2005, the circuit court entered a foreclosure decree in favor of Regions, and at the Commissioner’s sale on June 13, 2005, Regions purchased the property. Subsequently, Regions sold the property to Appellee Cain Construction, Inc., and obtained a construction mortgage on the property.

Meanwhile, on January 25, 2005, Appellant National Home Centers, Inc., a materials supplier for Coleman, filed a material-man’s lien on the same property. Over a year later, in April 2006, National Home Centers filed a complaint in foreclosure against the property. The complaint listed as defendants Coleman Homes, LLC, the Colemans individually, Cain Construction, Inc., Newoods, Inc., and Regions Bank.

In response, Regions and Cain filed a joint motion for summary judgment. In the motion, they alleged that National Home Centers’s materialman’s lien was filed after the lis pendens in Regions’s foreclosure action, and, therefore the materialman’s lien was subject to the outcome of that litigation, and National Home Centers was barred from bringing its own foreclosure action. National Home Centers filed a cross-motion for summary judgment and made several arguments in rebuttal to Regions’s motion.

After a hearing on the motions, the circuit court entered an order granting summary judgment in favor of Regions and Cain and denying National Home Centers’s summary-judgment motion. The order also granted National Home Centers a default judgment against Coleman.

National Home Centers filed an initial appeal from that order, but this court remanded the case for further settling of the record because the circuit court’s order did not dispose of Newoods, Inc., and, therefore, was not a final appealable order. See Nat’l Home Ctrs., Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007). After an amended order was entered granting National Home Centers a default judgment against Newoods, National Home Centers filed the instant appeal. National Home Centers raises five points on appeal: (1) that Regions’s lis pendens was a nullity because it was filed before Regions’s foreclosure complaint; (2) the lis pendens statute does not apply to holders of material-man’s liens because a materialman’s lien relates back to the time when materials were supplied; (3) the lis pendens had no effect against National Home Centers because it was not joined as a defendant in Regions’s foreclosure action, and the circuit court’s foreclosure decree indicated that it only applied to the listed defendants; (4) there exists a genuine issue of material fact as to whether the “unclean hands” doctrine should be applied to Regions; and (5) the circuit court erred in denying National Home Centers’s summary-judgment motion.

Although National Home Centers made all of the above arguments in its cross-motion for summary judgment, Regions asserts that points one through four were not preserved for appeal because National Home Centers did not receive a specific ruling on any of those arguments. We have repeatedly held that it is appellant’s duty to obtain a specific ruling on arguments before the circuit court in order for us to review those arguments on appeal. See Bomar v. Moser, 369 Ark. 123, 251 S.W.3d 234 (2007); In re Estate of Keathley, 367 Ark. 568, 242 S.W.3d 223 (2006). Moreover, we have held that when a circuit court rules on some arguments when making its decision to grant summary judgment, while not addressing others, the arguments that are not addressed are not preserved for appeal. See Bomar v. Moser, supra.

In its order, the circuit court did not provide specific rulings. However, the order does state that “for reasons stated in open court,” the joint summary-judgment motion filed by Regions and Cain was granted and the cross-motion for summary judgment filed by National Home Centers was denied. A review of the transcript from the hearing reveals colloquies in which the circuit court addressed some of National Home Centers’s arguments. In response to its argument that the materialman’s lien was not affected by the lis pendens because it related back to a date before the lis pendens was filed, the circuit court stated in pertinent part:

[T]he timing [of lis pendens] has nothing to do with my analysis that I can tell except when you would have had notice. And the lis pendens was there when you went down and perfected your lien, thereby putting you on notice. You don’t get to go to the courthouse and claim you were there three weeks in advance for notice purposes.
The fact [that] it relates back doesn’t have anything to do with notice. It has to do with when your work began and when the lien attaches, if properly perfected.

Then, National Home Centers argued that a creditor should wait 120 days after the last day work is done on the property and conduct a title search to account for any unperfected materialman’s liens before filing a complaint. The circuit court replied,

They’re half-way through a house and they shut down in the middle of it, and you can’t — he keeps saying, “No, I’m going to finish it. No, I’m going to finish it.” But it’s been out there deteriorating, and you’re the bank. You can’t expect them to wait 120 days till completion when you have no idea when the last work has been done.

The court did not comment further, and National Home Centers did not request specific rulings on its other arguments. Thus, as to the following arguments advanced on appeal, the record reflects no specific rulings by the circuit court: the discrepancy in the filing of the lis pendens; the indications in the foreclosure decree that the decree only applied to the named defendants; and the application of the “unclean hands” doctrine.

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Opinion No.
Arkansas Attorney General Reports, 2008

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Bluebook (online)
283 S.W.3d 218, 373 Ark. 246, 2008 Ark. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-home-centers-inc-v-coleman-ark-2008.