RAYMOND R. ABRAMSON , Judge . Arkansas Center for Physical Medicine and Rehabilitation (ACPMR) appeals the order of the Pulaski County Circuit Court dismissing its complaint against Gloria Magee. On appeal, ACPMR argues that the circuit court erred in granting Magee's motion for judgment on the pleadings because (1) Magee waived her statute-of-limitations defense when she failed to raise it as an affirmative defense in her answer; and (2) Arkansas Code Annotated section 16-56-106(b)(Repl....
N. MARK KLAPPENBACH , Judge . This appeal concerns the entry of summary judgment in favor of a real estate agent in the lawsuit filed by her clients subsequent to their purchase of a home. The house had settling and other problems that the buyers did not know about until after the sale had been completed, which the buyers blamed on the real estate agent. The trial court granted summary judgment on the tort claims as barred by the three-year statute of limitations and on the breach-of-...
N. MARK KLAPPENBACH , Judge . This appeal concerns alimony payments. Appellant Jon-Claude Jenkins and appellee Scarlett Jenkins were divorced by a September 2010 Pulaski County Circuit Court decree. In their property-settlement agreement, which was approved by the trial court and incorporated but not merged into the decree, the parties agreed that Jon-Claude would pay Scarlett alimony in the amount of $3000 per month until Jon-Claude's "income is reduced." The agreement did not recite what...
N. MARK KLAPPENBACH , Judge . Appellants appeal from the Grant County Circuit Court's order granting summary judgment to appellees on appellants' negligence suit. Appellants contend that material questions of fact remain on the issue of whether the alleged negligence of appellees was a proximate cause of the automobile accident. We reverse and remand. Appellants, Morgan Taylor Barnett and her parents, Alton Darren Barnett and Karen Barnett, filed suit against Damon Eric Cleghorn and his...
MIKE MURPHY , Judge . Appellant, R.E.C. Enterprises, LLC, d/b/a Stan Excavating Company, appeals from a declaratory judgment entered by the Miller County Circuit Court on January 23, 2017. The judgment (1) awarded appellee, Gaillard Builders, Inc., declaratory relief relating to appellant's failure to timely foreclose a purported mechanic's and materialmen's lien; (2) granted appellee's motion to compel arbitration; and (3) dismissed appellant's counterclaim. On appeal, appellant argues...
MIKE MURPHY , Judge . This is an appeal arising out of a declaratory-judgment action. Appellants Gene Garner and Lynda Narug sued appellees Hot Springs Village Property Owners' Association (HSVPOA) and its board of directors regarding measures taken by those entities that affected appellants as residents and members of the property owners' association. Following a bench trial, the circuit court dismissed appellants' complaint with prejudice. Appellants raise four arguments in support of...
ROBERT J. GLADWIN , Judge . Debbie Jean Brown and Louise Pilz filed suit against their employer United Parcel Service, Inc. (UPS), for violations under the Arkansas Civil Rights Act (ACRA). 1 Ark. Code Ann. 16-123-101 to -108 (Repl. 2016). Following a jury trial in the Pulaski County Circuit Court, a verdict was rendered in favor of UPS. Appellants argue on appeal that the trial court erred in denying their motion for directed verdict and in rejecting their proposed jury instruction...
ROBERT J. GLADWIN , Judge . The Sharp County Circuit Court granted summary judgment to appellee FNBC Bank f/k/a First National Banking Company ("FNBC"), dismissing appellant Nick Murphy's claims against FNBC with prejudice. Murphy argues on appeal that the circuit court erred in granting summary judgment because genuine issues of material fact existed. However, we do not reach Murphy's claims because this court lacks jurisdiction. We recognize that we should have granted FNBC's motion to...
BRANDON J. HARRISON , Judge . This summary-judgment case involves an employee's privacy rights in the employment drug-testing context. Larry Pingatore has been employed by Union Pacific Railroad (UP) since at least 2002. He worked as a signalman in California for UP. He took a two-month leave of absence in 2002 and a six-month leave in 2005. In 2005 Pingatore went through inpatient substance-abuse treatment for alcoholism. After that absence, the company began drug testing him more...
DAVID M. GLOVER , Judge . In this divorce case, appellant Bert Myers appeals from a post-decree order awarding his former wife, appellee Suzie Ridgley, a portion of his active-duty military-retirement pay. Suzie cross-appeals from the circuit court's refusal to order a survivor-benefit plan for her. She has also filed a motion to dismiss Bert's appeal. We reverse on direct appeal, affirm on cross-appeal, and deny the motion to dismiss. I. Background Bert and Suzie were divorced in 1999...
ROBERT J. GLADWIN , Judge . In this no-merit appeal, Lamar Daniel Ron Wilson was sentenced on October 5, 2015, to six years' imprisonment in the Arkansas Department of Correction (ADC) following his no-contest plea to sexual indecency. A timely notice of appeal was filed on October 26, 2015. Wilson's attorney has filed a motion to be relieved as counsel and a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k) (2016), in which...
PHILLIP T. WHITEAKER , Judge . This appeal arises from a child-custody modification. Robin Emis appeals the Pulaski County Circuit Court order modifying the custody arrangement of the parties' minor children placing primary custody in Keith Emis and providing Robin with visitation. She also appeals the trial court's award of attorney's fees and its denial of other posttrial motions. We affirm. The procedural history is as follows. Robin and Keith divorced in September 2011 when their twin...
BRANDON J. HARRISON , Judge . Dr. F. David Chambers and Michelle Chambers appeal from the circuit court's judgment in favor of Kenneth McDougald, wherein he was awarded the principal sum of $300,000 on a promissory note, plus prejudgment interest of $159,698.63. They argue that the circuit court erred in excluding their evidence that McDougald was the first to breach the parties' purchase agreement that included the note. They also challenge the award of attorney's fees to McDougald. We...
N. MARK KLAPPENBACH , Judge . The City of Tontitown appeals from an order of the Washington County Circuit Court finding that it had failed to take substantial steps to provide requested municipal services to property owned by appellee First Security Bank (the Bank). On appeal, Tontitown argues that the circuit court lacked subject-matter jurisdiction in this matter, that the circuit court erred in granting judgment to the Bank, and that the circuit court erred in refusing to rule on...
RITA W. GRUBER , Chief Judge . This appeal arises from the City of Springdale's annexation of certain property owned by First Security Bank and Hillcrest Holdings, LLC. The City of Tontitown (Tontitown) filed a petition challenging the annexation pursuant to Arkansas Code Annotated section 14-40-2004 (Repl. 2013). The circuit court dismissed the suit with prejudice. We affirm in part and reverse and remand in part. First Security Bank (the Bank) owned two contiguous tracts of property in...
KENNETH S. HIXSON , Judge . Appellants Artie Green's Auto Repair and Body Shop, Inc., and Arthur Green, Jr., appeal after the Saline County Circuit Court denied their petition to declare Arkansas Code Annotated section 16-66-221 (Repl. 2005) unconstitutional. Appellants argue on appeal that the circuit court erred because section 16-66-221 intrudes on the Arkansas Supreme Court's exclusive authority over pleading, practice, and procedure pursuant to amendment 80 section 3 of the Arkansas...
BART F. VIRDEN , Judge . This case arises out of a default judgment in the Cleburne County Circuit Court. Patrick Malloy and John Callaghan raise the following three arguments in support of their position that the default judgment should be set aside: (1) Bruce and Jan Smith (the Smiths) did not comply with New York law regarding completion of service; (2) the Smiths' summonses do not strictly comply with Ark. R. Civ. P. 4(b); and (3) the default judgment against Malloy and Callaghan should...
RITA W. GRUBER , Chief Judge . Catherine Roberts sued Broadway Health & Rehab, LLC, and related entities (collectively "Broadway") for medical malpractice, negligence, and violations of the Arkansas Long-Term Care Residents' Rights Act 1 for injuries her mother, Evelyn King, sustained while a resident at Broadway Health & Rehab in West Memphis. Broadway appeals from an order denying its motion to compel arbitration. 2 Broadway argues on appeal that the circuit court erred in finding that...
KENNETH S. HIXSON , Judge . This appeal arises from a foreclosure action that subsequently included, inter alia, a breach-of-contact complaint brought by appellee Copeland Holdings, LLC 1 against appellants Stan and Jo Serio. The litigation resulted in a partial-summary-judgment order entered in favor of Copeland against Jo Serio, individually, wherein the trial court found that Jo Serio had breached a real estate contract to sell property to Copeland. In the same order, the trial court...
ROBERT J. GLADWIN , Judge . Appellant, the Estate of Anderson D. Williams, appeals the October 15, 2015 order of the Desha County Circuit Court denying its motion for judgment notwithstanding the verdict (JNOV) regarding the September 11, 2015 order that found appellees Schwarze Industries, Inc. (Schwarze), and Arkansas Power Steering and Hydraulics (APSH) not liable in the death of Williams. Appellant contends that the jury verdict is against a preponderance of the evidence and thus lacks...
