SMG 1054, INC. v. JAMES E. THOMPSON
No. CV-13-703
ARKANSAS COURT OF APPEALS
February 26, 2014
2014 Ark. App. 149
LARRY D. VAUGHT, Judge
DIVISION III; APPEAL FROM THE RANDOLPH COUNTY CIRCUIT COURT [No. CV-2013-6]; HONORABLE KEVIN KING, JUDGE; REMANDED TO SETTLE AND SUPPLEMENT THE RECORD; REBRIEFING ORDERED
Appellant SMG 1054, Inc., appeals the order of foreclosure entered by the Randolph County Circuit Court in favor of appellee James E. Thompson. On appeal, SMG contends that the trial court abused its discretion in denying its motion for continuance and in refusing to admit certain documentation into evidence. Because SMG‘s abstract and addendum are deficient, we order supplementation of the record and rebriefing.
Thompson filed a complaint for foreclosure against SMG on January 10, 2013. The complaint alleged that on December 30, 2010, Thompson loaned $47,500 to Cedar Break LLC, and in return received a promissory note, signed by T.V. Wallis (the manager of Cedar Break—now deceased), promising to repay the loan on or before March 31, 2011. The complaint also alleged that Wallis, on behalf of Cedar Break, signed a mortgage in favor of Thompson, securing the indebtedness of Cedar Break by conveying to him a lien that was first in priority on property located on Highway 62 in Randolph County, Arkansas (the property).
The Thompson complaint continued, averring that because Cedar Break failed and refused to make payments due under the note, he was exercising his right to declare the entire debt due and payable. Further, the complaint alleged that on May 3, 2011, Cedar Break conveyed to SMG, by warranty deed,1 the property secured by the mortgage and that SMG failed to make payments on the loan. Thompson prayed for judgment in rem against SMG in the amount of $47,500, plus interest, attorney‘s fees, and costs, and further prayed that should the judgment not be paid within a reasonable time the property be sold.
On February 14, 2013, Shirley Matthews, pro se and on behalf of SMG,2 filed an “answer to summons,” disputing and disagreeing with all claims and accusations made in the foreclosure complaint. Matthews further responded by stating that she had never been involved with Cedar Break and that it, along with its agent (Wallis), unlawfully obtained the SMG deed and made the agreement with Thompson without her permission. She added that Thompson should be filing suit against Cedar Break and Wallis‘s estate.
A foreclosure hearing was held on April 22, 2013, where Matthews appeared on behalf of SMG. At the onset of the hearing, she requested a continuance to retain an attorney. She stated that she initially believed that she was capable of representing SMG but eventually
The hearing proceeded with Thompson testifying first. He said that in December 2010, he loaned Wallis, on behalf of Cedar Break, $47,500, for the purchase of the property in question. Thompson said that Wallis was purchasing the property from Harold Eugene Tyler, Jr., and that Thompson witnessed Wallis paying Tyler for the property and Wallis receiving the deed.3 Thompson also stated that he received a promissory note and mortgage signed by Wallis, but that Cedar Break did not make any payments. At this point during the hearing, the trial court asked Matthews whether she signed the note and mortgage, to which she responded that she did not. Then, Thompson‘s attorney interjected, confirming that Matthews did not sign the note and mortgage but that after the note and mortgage had been executed, Cedar Break deeded the property in question to SMG, which was why the proceeding against SMG was in rem. Counsel for Thompson stated that Matthews had no personal liability.
Matthews also testified. She told the trial court that “I am SMG” and that she and Wallis had been friends for sixteen years. She said that she “handled a lot of his contracts” and “worked on his jobs.” She said that before Wallis bought the property in question from Tyler, she purchased it from Tyler for $68,500.4 She added that she paid for the property in full as of December 11, 2010, and that she had paperwork (a contract and receipts) to support her claim. She conceded, however, that she did not have a title-insurance policy for the property or a deed for the property from Tyler. She also said that she was living on the property and that she let Wallis move in with her after he became ill. She acknowledged that the deed held by SMG was conveyed to it by Cedar Break in May 2011. But, she explained that Cedar Break had unlawfully obtained the deed. In December 2010, she was tending to her ill son, and her final payment to Tyler was due. She gave the payment to Wallis to give to Tyler. According to Matthews, Wallis tendered the final payment and then had the deed to the property put in Cedar Break‘s name instead of SMG‘s name. She said that she and Wallis “got into a lot of problems over that,” and in May 2011, Cedar Break deeded the property to SMG. Matthews denied knowing that Wallis had borrowed money from Thompson to purchase the property from Tyler and that he was supposed to be making payments.
SMG‘s first point on appeal is that the trial court abused its discretion in denying its motion for continuance. SMG argues that Matthews, on behalf of SMG, on multiple occasions advised the trial court that she did not understand the legal issues involved, that she had tried to hire several attorneys, and that she had potential claims against other parties. SMG also contends on appeal that Thompson would not be prejudiced by a short continuance because the foreclosure case was relatively new (only four months old) and that he had not received payment from Wallis in two years.
A motion for continuance shall be granted only upon a showing of good cause. Hill v. Ark. Dep‘t of Human Servs., 2013 Ark. App. 760, at 3. We will not reverse the denial of a motion for continuance absent an abuse of discretion amounting to a denial of justice. Id. A trial court abuses its discretion when it acts improvidently and without due consideration. Id. The appellant bears the burden of showing that the trial court‘s denial of a continuance was an abuse of discretion, and, in order to show an abuse of discretion, the appellant must show that she was prejudiced by the denial. Id. at 3–4.
Our review of this case reveals that the primary reason why the trial court denied Matthews‘s motion for continuance was that the case had been continued once before—this was
Our review of this case further reveals that the first hearing and order disposing of that hearing are not included in the record. If anything material to either party is omitted from the record by error or accident, we may direct that the omission or misstatement be corrected, and if necessary, that a supplemental record be certified and transmitted.
Finally, we are obligated to mention our concern that Matthews, at the trial-court level,6 was a non-lawyer representing a corporation, which constitutes the unauthorized practice of law. Ark. Bar Ass‘n v. Union Nat‘l Bank, 224 Ark. 48, 51, 273 S.W.2d 408, 410 (1954) (holding that a corporation may represent itself in connection with its own business or affairs provided it does so through a licensed attorney);
Remanded to settle and supplement the record; rebriefing ordered.
GLADWIN, C.J., and HIXSON, J., agree.
Stanley & Woodard, PLC, by: Bill Stanley, for appellant.
Don R. Brown, for appellee.