TRAVIS SEXTON, CHRISTINA BARGIEL, and BEAVER LIQUOR, INC. APPELLANTS
SCOTT SOWELL, LYNN SOWELL, and TOWN & COUNTRY, LLC APPELLEES
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. CV-13-0901] HONORABLE JAMES O. COX, JUDGE
Law Firm, PLLC, by: Stephen C. Parker, Jr., for appellants.
Hardin, Jesson & Terry, PLC, by: Robert M. Honea; and
Witt Law Firm, P.C., by: Neva B. Witt, for appellees.
LARRYD. VAUGHT, Judge
Travis Sexton, Christina Bargiel, and Beaver Liquor, Inc.,
appeal the Crawford County Circuit Court's October 22,
2015 order granting summary judgment in favor of appellees
Scott Sowell, Lynn Sowell, and Town & Country, LLC.
Appellants argue that the circuit court's damage award
was clearly erroneous. Because the appellants' argument
on appeal is not preserved, we affirm.
case involves the purchase of a liquor store located in Fort
Smith, Arkansas. In May 2012, appellants and appellees
entered into an asset-purchase agreement, whereby appellants
agreed to pay appellees $450, 000 for the store assets.
Appellants paid appellees $80, 000 at closing, with the
remaining $370, 000 to be paid pursuant to a promissory note
executed by appellants contemporaneously. The note provided
that appellants were to make monthly payments of $7, 153.14
to appellees beginning July 15, 2012, and continuing for
sixty months until paid in full. Appellants also
contemporaneously executed and delivered to appellees a
security agreement, pledging all of the assets of the store
as collateral for payment of the indebtedness. Finally, the
parties executed an assignment of sublease, wherein appellees
assigned their rights, title, and interest pursuant to a
sublease of the store premises to appellants.
July 2012 through April 2013, appellants made the required
payments pursuant to the asset-purchase agreement, although
some of the payments may not have been timely. In May 2013,
appellant Travis Sexton asked appellee Scott Sowell if he
would accept half of the May payment, and Sowell agreed.
Appellants made the June and July 2013 payments.
midnight on August 11, 2013, Sowell texted Sexton and asked
for a meeting. At that meeting, Sowell told Sexton that
appellees had repossessed the assets and had changed the
locks at the store.
filed a complaint for breach of the asset-purchase agreement
and for conversion against appellees on September 18,
2013. Appellees answered and filed a
counterclaim, alleging that appellants had breached the
asset-purchase agreement and the sublease. Thereafter,
appellees filed a motion for summary judgment claiming that
notice prior to their repossession of the assets was not
required pursuant to the asset-purchase agreement and the
assignment of sublease/sublease. Appellants filed a competing
motion for summary judgment on September 11, 2015, arguing
that the facts were undisputed that appellees breached the
asset-purchase agreement by repossessing the store without
October 19, 2015, the circuit court issued a letter opinion
denying appellants' motion for summary judgment and
granting appellees' motion. The court found that based on
the contracts executed by the parties, the facts were
undisputed that appellants were in breach and that appellees
were not required to provide notice prior to repossessing the
assets. The circuit court granted appellees rescission of the
contracts, awarding appellees possession of the assets, which
it found had retained their $450, 000 purchase-price value.
The court awarded no other damages, finding that
appellees' repossession expenses of approximately $81,
324.13 were offset by appellants' $80, 000 down payment.
On October 22, 2015, the circuit court issued an order
granting summary judgment in favor of
November 3, 2015, pursuant to Arkansas Rule of Civil
Procedure 52(b), appellants filed a motion to amend findings
of fact and order granting summary judgment. They argued, for
the first time, that the circuit court, when it rescinded the
contracts, should have restored the status quo by accounting
for the monthly payments they had made against the promissory
note, entitling them to an award of $91,
November 19, 2015, appellants filed a notice of appeal from
the October 22, 2015 summary-judgment order. Thereafter,
appellees, on November 30, 2015, filed a response to
appellants' motion to amend findings of fact and order
granting summary judgment, requesting the circuit court to
remove all references to rescission in its order because
neither party requested rescission. On December 7, 2015, the
circuit court entered an amended order granting summary
judgment, which was identical to the October 22, 2015
summary-judgment order except it contained no rescission
findings. Appellants did not file an amended notice of appeal
from the December 7, 2015 order.
appeal, appellants raise the argument they made in their
November 3, 2015 Rule 52(b) posttrial motion to amend. They
contend that, based on the circuit court's rescission of
the contracts, it erred in failing to account for the monthly
payments they made against the asset-purchase agreement and
in failing to award them $91, 666.69 to ...