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Triple T Farms Partnership v. Union Bank & Trust Co.

Court of Appeals of Arkansas, Division I

March 11, 2015

TRIPLE T FARMS PARTNERSHIP, DOYLE THOMAS, AND LINDBERGH THOMAS, APPELLANTS
v.
UNION BANK & TRUST COMPANY, APPELLEE

APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT. NO. CV-2009-107-2. HONORABLE ROBERT H. WYATT, JR., JUDGE.

AFFIRMED.

Andrea Brock, P.A., by: Andrea Brock, for appellants.

The Barton Law Firm, by: Whit Barton; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.

VIRDEN and GRUBER, JJ., agree.

OPINION

Page 259

DAVID M. GLOVER, Judge.

On January 10, 2014, the trial court granted appellee Union Bank & Trust Company (Union) judgment in foreclosure against appellants Triple T Farms Partnership, Doyle Thomas, and Lindbergh Thomas (Triple T) and dismissed with prejudice Triple T's counterclaim.[1] Pursuant to Rule 60 of the Arkansas Rules of Civil Procedure, on February 5, 2014, Triple T filed a motion to set aside the foreclosure judgment and dismissal of its counterclaim; this motion was denied in an order filed on March 19, 2014. Triple T timely filed its notice of appeal. On appeal, Triple T argues that the judgment should be set aside because it had no notice of trial; that the proceedings and trial in this matter (without notice to Triple T) resulted in the taking of property without due process of law and in violation of its rights to equal protection so as to violate its constitutional rights; and that the judgment is erroneously based on two notes and security interests that were modified by a later loan-restructure agreement and, because Union first breached the agreement in October 2008, it is therefore barred from proceeding under a breach-of-contract claim. We affirm.

Union made two loans to Triple T in 2006; Triple T defaulted, and Union filed a foreclosure action in 2007. Triple T filed for bankruptcy protection in 2007; as a settlement of the foreclosure action and the bankruptcy, the parties entered into a loan-restructure agreement in 2008. Union filed a second foreclosure action against Triple T in 2009; Triple T counterclaimed.

The case was originally set for jury trial on April 3, 2013, by order (filed November 9, 2012); this order was sent to Triple T's counsel at P.O. Box 787 in Forrest City, Arkansas. An order (filed April 8, 2013) reset the case for a bench trial on August 7, 2013; this order was also sent to Triple T's counsel at the above address. Another order (filed on June 26, 2013) reset the bench trial for September 4, 2013; this order was sent to Triple T's counsel at the above address. Triple T filed a motion for continuance on September 30, 2013, noting that the trial was currently set for October 2, 2013,[2] and that a material witness was out of the country and would be for some time; it requested that the matter be re

Page 260

scheduled for the first Wednesday in November 2013. By order (filed on November 12, 2013), the trial court reset the case for bench trial from October 2, 2013, to January 8, 2014; this order was sent to Triple T's counsel at the above address. Each order also included the mailing address of Union's counsel.

At the January 8, 2014 bench trial, the trial court noted that Triple T's counsel had contacted the trial court the night before and stated that she did not have notice of the trial date. However, the trial court found that notice was sent to Triple T's counsel, stating that it was convinced that Triple T's counsel was aware of the setting of the hearing. Union proceeded to present its case, and the trial court granted Union all the relief it requested. The trial court specifically instructed Union's counsel to include in the order that Triple T was notified of the trial date in the same manner as everyone else; that counsel for Triple T did not contact the trial court until the day before the hearing; and that the trial court was satisfied that Triple T had notice of the bench-trial setting. Triple T filed its motion to set aside the judgment pursuant to Rule 60, which was denied. This appeal was then filed.

Rule 60(a) of the Arkansas Rules of Civil Procedure provides that a trial court may modify or vacate a judgment, order, or decree by the court's motion or by motion of any party, with prior notice to all parties, within ninety days to correct errors or mistakes or to prevent the miscarriage of justice. The only limitation on the exercise of power under Rule 60(a) is addressed to the sound ...


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