Facts
- Ginger Collins sought to invalidate the sale of her mother Jean Mace’s home, which her sister Judy sold without her knowledge [lines="44-46"].
- Judy, who had been the caretaker for their parents, transferred ownership of the family home to the Judith Lynn Mace Revocable Trust shortly before her death [lines="55-61"].
- Judy's deed transferred property to her, and Ginger believed it was held in trust for Jean’s benefit and would eventually be split among the siblings [lines="58-60"].
- Following Judy's death, Ginger filed a lawsuit to evict Judy's caretaker and invalidate the property sale claiming a resulting trust [lines="68-69"].
- The district court granted partial summary judgment against Ginger, deciding that the extrinsic evidence supporting her resulting trust claim was inadmissible due to the deed’s unambiguous nature [lines="86-87"].
Issues
- Did the district court err by declining to consider extrinsic evidence related to Ginger’s claim of a resulting trust? [lines="364-365"].
- Did the district court err in refusing to void the property transfer on public policy grounds? [lines="366-367"].
- Are either party entitled to an award of attorney fees on appeal? [lines="368"].
Holdings
- The district court erred by not considering extrinsic evidence for the resulting trust claim, as such evidence can help reveal the intent of the parties [lines="410-411"].
- The appeal did not fully address the public policy issue since it was never firmly presented before the district court [lines="571-572"].
- No party is entitled to attorney fees on appeal, as the matter does not fall under the Trust and Estate Dispute Resolution Act (TEDRA) and fees were not warranted under Idaho Code section 12-121 [lines="618-621"].
OPINION
MCCAIN MALL COMPANY LIMITED PARTNERSHIP v. NICK‘S BAR LOUIE, INC.
No. CV-23-279
ARKANSAS COURT OF APPEALS, DIVISION IV
October 23, 2024
2024 Ark. App. 502
RAYMOND R. ABRAMSON, Judge
RAYMOND R. ABRAMSON, Judge
McCain Mall Company Limited Partnership (McCain Mall) appeals the Pulaski County Circuit Court orders entered in its suit with Nick‘s Bar Louie, Inc. (Bar Louie). We must dismiss the appeal for lack of a final order.
On May 13, 2022, McCain Mall filed a complaint against Bar Louie for unlawful detainer and breach of contract. McCain Mall alleged that Bar Louie did not pay rent for its premises in the mall and refused to surrender the location. McCain Mall attached to the complaint a lease, an assignment of the lease, and amendments.
On June 16, Bar Louie answered and counterclaimed for breach of contract, promissory estoppel, and fraud in the inducement/misrepresentation. It alleged that it had made an oral agreement with McCain Mall‘s agent to modify the lease for reduced rent, and it relied on the oral agreement by paying a reduced sum.
On July 18, McCain Mall moved to dismiss Bar Louie‘s counterclaims. The court held a hearing on September 21 and November 2.
On December 14, the court entered an order stating that that it had considered all claims, counterclaims, and McCain Mall‘s motion to dismiss. The court found that Bar Louie had paid rents and fees when due according to the lease and modifications and that McCain Mall and Bar Louie mutually agreed to oral modifications of the lease. The court concluded that the parties were bound by the oral modifications and terms as shown in the rent relief amendment dated July 13, 2020. In conclusion, the court ordered the clerk “to close this case to further filings.”
On December 21, Bar Louie moved for attorneys’ fees and costs totaling $9,375. It argued that it was entitled to attorneys’
On February 2, McCain Mall filed its notice of appeal of the December 14 order, and on February 20, McCain Mall amended its notice of appeal.
Although neither party raises the issue, the circuit court‘s order presents a jurisdictional question that this court considers sua sponte. Hankook Tire Co., Ltd. v. Philpot, 2016 Ark. App. 386, at 6, 499 S.W.3d 250, 253. An appeal may be taken from a final judgment or decree entered by the circuit court.
In this case, the circuit court‘s order does not adjudicate McCain Mall‘s claims or Bar Louie‘s counterclaims. The court issued findings, but we cannot decipher how the court ruled on the claims and counterclaims.1 Significantly, on appeal, McCain Mall challenges the merits of each of Bar Louie‘s counterclaims, but the order is unclear whether the court granted relief on the counterclaims. The parties’ arguments on appeal further suggest that
the counterclaims remain outstanding. Accordingly, we must dismiss the appeal for lack of a final order.
Dismissed without prejudice.
VIRDEN and HIXSON, JJ., agree.
Friday, Eldredge & Clark LLP, by: Martin A. Kasten and Lindsey Emerson Raines, for appellant.
Gill Ragon Owen, P.A., by: Debby Linton Ferguson, for appellee.