Ditch 56 Farms LLC v. Foster
2013 Ark. App. 505
Ark. Ct. App.2013Background
- Sylvester Brandon leased 160 acres (two 80-acre tracts) to Ronnie and Clint McCord for ten years (2008), with a right of first refusal to Sylvester’s children (Linda Alden and Danny Brandon) and a secondary right to the McCords; lease survived sale.
- Sylvester died in 2010; his estate conveyed the two 80-acre tracts to Alden and Danny by distribution deeds; McCords continued farming under the lease.
- In November 2011, the Fosters contracted to buy all 160 acres from Danny for $528,000; Alden did not sign the initial contract but both heirs deposited earnest money and later signed contracts reflecting the McCords’ right of first refusal at the same price.
- The McCords executed a contract to sell the property to Ditch 56 Farms for the same price shortly thereafter; Ditch 56 later sought to intervene in the litigation.
- The Fosters sued (Jan. 2012) seeking specific performance against Alden and Danny and declaratory relief about the McCords’ rights; the trial court granted summary judgment to the Fosters, ordered specific performance, held the heirs’ right of first refusal merged into the fee on inheritance and was extinguished, and concluded the McCords’ secondary right never triggered.
- The trial court also stated the McCords’ remaining claims were “disposed of” and found Ditch 56’s intervention moot; both McCords and Ditch 56 appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court’s summary judgment ordering specific performance for the Fosters was final and appealable | Fosters: judgment resolved their claims against sellers and affected the McCords’ rights; appealable | McCords/Ditch 56: trial court failed to adjudicate remaining counterclaims/cross-claims and motion to intervene, so no final order | Appeal dismissed for lack of final, appealable order because the court did not expressly dispose of McCords’ remaining claims or formally rule on intervention |
| Whether heirs’ right of first refusal survived inheritance or merged into the fee | Fosters: heirs’ right merged into title upon inheritance and was extinguished, so sale to them could be enforced | Alden/Brandon: right continued or was otherwise effective to affect the McCords’ refusal rights | Trial court found the right merged and was extinguished upon inheritance; appellate court did not reach merits due to nonfinality of order |
| Whether the McCords’ secondary right of refusal was triggered by the transaction | Fosters: because the decedent never offered the property during his life and heirs inherited title, McCords’ secondary right was never triggered | McCords: right of second refusal was triggered by the heirs’ subsequent contract/transactions | Trial court concluded the secondary right never triggered; appellate court could not resolve on appeal for lack of final order |
| Whether denial/mooting of Ditch 56’s motion to intervene was appealable | Ditch 56: denial of intervention is appealable | Fosters/sellers: intervention was moot after summary judgment for Fosters | Appellate court dismissed Ditch 56’s appeal because the circuit court never expressly denied/intervened and its mootness finding depended on a nonfinal summary judgment |
Key Cases Cited
- Advanced Envtl. Recycling Techs., Inc. v. Advanced Control Solutions, Inc., 372 Ark. 286 (discussing appellate jurisdiction and finality)
- Duffield v. Benton Cnty. Stone Co., 369 Ark. 314 (intervention appealability)
- Robinson v. Villines, 2012 Ark. 211 (when an order is final and appealable)
- McWhorter v. McWhorter, 2009 Ark. 458 (clarity required in judgment to show disposition)
- Thomas v. McElroy, 243 Ark. 465 (formalities of judgment and disposition)
- Billabong Prods., Inc. v. Orange City Bank, 278 Ark. 206 (intervention principles)
- Holbrook v. Healthport, Inc., 2013 Ark. 87 (dismissal for lack of final order)