Nobles v. Tumey
2010 Ark. App. 731
| Ark. Ct. App. | 2010

Background

  • Nobles appeals the denial of his motion to vacate a judgment in Tumey v. Nobles and the denial of his motion to dismiss.
  • Parties formed a joint venture in June 1998 analyzing profit sharing; a Memorandum of Understanding in October 1998 set 50/50 profits with specific payment obligations to Tumey and Nobles.
  • Tumey alleged Nobles failed to comply with the agreement; she filed a contract breach suit in November 1998 and later a fraud suit in 2002.
  • Service delays/extensions occurred in 2002–2003; the circuit court granted extensions, and service was ultimately achieved during the extension period.
  • Trials culminated in August 2007 with a judgment for Tumey totaling $773,055.10 including a $500,000 punitive award; Nobles moved to vacate under Rule 60.
  • The trial court denied the 60(b) motion as to Nobles; the court later dismissed the action without prejudice as to the other defendants in 2009; Nobles timely appealed.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether the fraud claim was time-barred by the statute of limitations Tumey contends the three-year fraud statute began when the wrong occurred; concealment tolling applies only to affirmative concealment. Nobles argues the fraud claim was timely under tolling and concealment theories, and the discovery rule should apply. Fraud claim timing issue for trial; court affirmed the denial of dismissal on statute grounds.
Whether service was timely and good cause existed to extend service Tumey maintained extensions were proper and service occurred within extended period. Nobles contends no evidence of good cause for extensions and improper service. Court held no abuse of discretion; extensions were justified and service proper.
Whether Rule 60(a) and 60(d) vacatur was warranted given counsel’s withdrawal and notice failure Tumey argued no miscarriage of justice; Nobles asserted lack of notice and counsel abandonment. Nobles asserted attorney's disbarment caused miscarriage of justice and absence of meritorious defense required by Rule 60(d). Trial court abused its discretion; vacatur was warranted due to miscarriage of justice and meritorious defense shown.
Whether the judgment was void for lack of notice to Nobles Tumey states Nobles had proper notice; trial proceeded with Nobles absent. Nobles contends he lacked notice due to attorney’s withdrawal and miscommunication. Judgment not void; but vacatur appropriate due to other failures and prejudice.
Whether a meritorious defense was shown to justify vacatur under Rule 60(d) Tumey argued Nobles failed to present a prima facie meritorious defense. Nobles asserted defenses including miscalculation of damages, improper conduct, and accounting issues. Meritorious defense shown; court vacated judgment and remanded.

Key Cases Cited

  • Riddle v. Udouj, 371 Ark. 452, 267 S.W.3d 586 (2007) (three-year fraud statute, tolling and discovery principles)
  • Delanno, Inc. v. Peace, 366 Ark. 542, 237 S.W.3d 81 (2006) (fraudulent concealment tolls statute of limitations)
  • Rice v. Ragsdale, 104 Ark.App. 364, 292 S.W.3d 856 (2009) (statute of limitations begins at wrong occurrence absent concealment)
  • Technology Partners, Inc. v. Regions Bank, 97 Ark.App. 229, 245 S.W.3d 687 (2006) (fraudulent concealment triggers tolling considerations)
  • Diebold v. Myers Gen-Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987) (not a default judgment when based on merits; notice considerations)
  • Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001) (burden to show prima facie meritorious defense under Rule 60(d))
  • Farmers Union Mut. Ins. Co. v. Mockbee, 21 Ark.App. 252, 731 S.W.2d 239 (1987) (prima facie showing of defense required under Rule 60(d))
  • Bunker v. Bunker, 17 Ark.App. 7, 701 S.W.2d 709 (1986) (void judgments and notice considerations under Rule 60)
  • Goston v. Craig, 34 Ark.App. 23, 805 S.W.2d 92 (1991) (meritorious defense standard and trial court credibility not conclusive)
  • Nelson v. Weiss, 366 Ark. 361, 235 S.W.3d 891 (2006) (motions for extensions may rely on asserted facts in filings)
  • King v. Carney, 341 Ark. 955, 20 S.W.3d 341 (2000) (reliance on court extension orders; service timing)
  • Exigence, LLC v. Baylark, 2010 Ark. 306, 367 S.W.3d 550 (2010) (arguments raised post-appeal require citation and argument support)
  • Foster v. Foster, 2010 Ark. App. 594, 377 S.W.3d 497 (2010) (appellate treatment of Rule 60 issues and burden)
  • Agracat, Inc. v. AFS-NWA, LLC, 2010 Ark. App. 458, 379 S.W.3d 64 (2010) (directed verdict standard; review of evidence in light most favorable)
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