Riley v. Welcometotulum Inv. Props., LLC

544 S.W.3d 561
CourtCourt of Appeals of Arkansas
DecidedFebruary 7, 2018
DocketNo. CV–17–582
StatusPublished

This text of 544 S.W.3d 561 (Riley v. Welcometotulum Inv. Props., LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riley v. Welcometotulum Inv. Props., LLC, 544 S.W.3d 561 (Ark. Ct. App. 2018).

Opinion

BRANDON J. HARRISON, Judge

Doug Riley appeals a judgment entered in favor of Welcometotulum Investment Properties, LLC (WIP). He argues that the circuit court's judgment should be reversed based on frustrated performance of the contract, estoppel, waiver, unclean hands, and substantial performance. We disagree and affirm.

On 31 October 2013, James Green and Doug Riley entered into a real estate contract in which Green agreed to sell, and Riley agreed to purchase, property located at 114 Coca Bay Point, Hot Springs, Arkansas. Under the terms of the contract, the selling price was $425,000, of which $85,000 was paid, leaving $340,000 due and payable on 31 October 2018. The contract provided that until the balance of the purchase price was paid, Riley would pay a "carrying charge" of $1800 a month, due and payable on the last day of each month. Riley was also required to obtain and maintain an insurance policy for the property. The contract also provided for a thirty-day grace period after the last day of the month within which to make that payment without being in default. However, after the expiration of that thirty days, Green had the option of declaring the contract forfeited, and Riley would be required to vacate the premises and return possession to Green.

On 27 October 2016, Green quitclaimed his rights and interest in the property to WIP. That same date, Green also executed an assignment of contract that assigned his interest in the contract to WIP. On 1 November 2016, WIP gave Riley a notice of default, notice to quit, and demand for *563possession of property. The notice alleged that Riley had defaulted by failing to make payments in a timely manner, declared the contract terminated and forfeited, and demanded that Riley vacate the premises on or before 11 November 2016.

Riley did not do so, and on 18 November 2016, WIP filed a complaint in unlawful detainer. WIP alleged that it was entitled to possession of the premises, reasonable rent for the period of time that Riley unlawfully occupied the premises, statutory damages for unlawful detainer, reimbursement for cleaning and repair costs, and attorney's fees. Riley answered and averred that he was current on all payments. He also denied receiving the notice of default and affirmatively pled a myriad of affirmative defenses, including unjust enrichment, unclean hands, waiver, and estoppel.

The circuit court convened a bench trial on 3 April 2017. Michael Tankersley, the managing member of WIP, testified that he purchased the Coca Bay property and an assignment of contract and promissory note from James Green. After the purchase, Tankersley notified Riley of the purchase by mailing him a notice and by putting a copy of the notice on his front door. The notice instructed Riley to remit all payments to a post office box or to deliver payments in person to an address on Malvern Avenue between the hours of 9:00 a.m. and 4:00 p.m., Monday through Friday. At the time of WIP's purchase of the contract, which was October 27, Riley had not made his payment that was due on September 30. Tankersley paid Green that amount, $1800, in anticipation of collecting the money from Riley.

Under the grace-period clause of the contract, Riley had until October 30 to submit his September 30 payment to avoid default. On Saturday, October 29, Riley contacted Tankersley by text message, said that he (Riley) was sick, and offered to put the payment "through the door" at WIP's office. Tankersley responded that that was not a good idea, as there was construction going on and quite a few people going in and out, and that they should just see how Riley was feeling the next day. Riley text-messaged Tankersley again on Sunday, October 30, and said, "I know it's family day I can find u later this afternoon if not early tom your call." Tankersley told Riley to just give him a call in the morning, which would be Monday, October 31. They arranged to meet at 2:00 on Monday afternoon, but Riley did not show up for the meeting.

On the morning of Tuesday, November 1, Riley texted Tankersley that the payment was "in the door at your office." Tankersley responded that they needed to meet "to discuss the matter of your outstanding balance." Riley replied, "I tried all afternoon to find you so I stuck it thru your door." In response, Tankersley said, "You didn't try all day. We had a meeting set for 2 you didn't show for, we need to meet today to discuss." Riley never responded.

Tankersley explained that he received the September 30 payment thirty-two days after the actual due date, which is a default under the contract, so he asked Riley to vacate the property by delivering a notice of default to Riley's residence at the Coca Bay property on November 1. Riley was instructed to vacate on or by November 11. Tankersley received the check that Riley had put under the door, but he did not cash it because Riley was in default. Tankersley later received more checks from Riley, which were also not cashed.

While Riley was in default, Tankersley received and paid an insurance bill for the property in the amount of $1244.49. He also noted damage to the property, including fire damage from a car fire in the *564driveway, that required repairs. Finally, Tankersley said that he had checked with the bank, and the checks he received from Riley were non-sufficient-fund checks.

Joseph Patrico, vice president of Citizens Bank, testified that Tankersley asked him, on February 17 and March 6, to verify three checks from Riley and that there were not sufficient funds for those checks on those dates.

Riley testified that he had paid a total of $218,800 on his contract, and he denied that he had insufficient funds to cover the checks he gave to Tankersley. He said that he first found out about the assignment of the contract to WIP on October 28 when he met with James Green. Riley said that WIP had never contacted him, but he also said that he knew Tankersley and "started trying to tender the payment to [him]." He denied that Tankersley had ever served him with notice of the purchase, either by mail or by posting it to his door. Riley said that he spoke to Tankersley a couple of times between October 28 and October 31, trying to make arrangements to make payments, but had no contact with him after October 31. He also said he had made a lot of repairs to the house and had a substantial investment in the property. As to the insurance bill, Riley testified that his arrangement with Green was that Green would pay the insurance and Riley would reimburse him but that he never saw the bill paid by Tankersley.

Riley said that he made the September 30 payment on October 31. Riley acknowledged that under the contract, the $1800 carrying charge was due on the last day of each month, and the grace period for each payment was thirty days, but he said that the contract was "a little tricky" and that he did not really understand it. His understanding was that he had until the last day of the month to make his late payment. He also said, however, that he did not read the contract with Green before signing it and that he did not consult an attorney.

In closing argument, WIP's counsel argued that Riley had clearly violated the terms of the contract by making his September 30 payment past the thirty-day grace period and that WIP had acted within its rights and taken appropriate steps to terminate the contract. Riley's counsel argued that the contract was ambiguous and thus should be construed against the maker, which was James Green.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harness v. Curtis
192 S.W.3d 267 (Court of Appeals of Arkansas, 2004)
Vereen v. Hargrove
96 S.W.3d 762 (Court of Appeals of Arkansas, 2003)
Patel v. Patel
2015 Ark. App. 726 (Court of Appeals of Arkansas, 2015)
Southern Building Services, Inc. v. City of Fort Smith
427 S.W.3d 763 (Court of Appeals of Arkansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
544 S.W.3d 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-welcometotulum-inv-props-llc-arkctapp-2018.