FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-13-253]
HONORABLE ROBERT H. WYATT, JR., JUDGE
Brad Hendricks Law Firm, by: Lloyd W. Kitchens, for
G. Kizer, P.A., by: Maxie G. Kizer, for appellee.
LARRYD. VAUGHT, Judge
Larry Heinrich and Seth Heinrich appeal the Jefferson County
Circuit Court's findings of fact and conclusions of law
entered on June 2, 2016, in which the court found (1) that
David Myhand breached the contract for the sale of real
property, located at 6712 Sheridan Road, Pine Bluff,
Arkansas, that he entered into with Larry and appellee
Allison Anders; (2) that Larry fraudulently transferred
the property to Seth, Larry and Allison's son; (3) that
Allison's March 5, 2001 power of attorney in favor of
Larry was not used in the conveyance of the property; and (4)
that the unrecorded and unsigned assignment of the real
estate contract did not meet the requirements of the statute
of frauds. We cannot reach the merits of the appeal because
essential documents were omitted from the record and
addendum. We remand to supplement the record and addendum,
and we order rebriefing.
16, 2013, Allison filed this action against Larry, Seth, and
David alleging that David was in breach of the contract for
the sale of real property that he entered into with Larry and
Allison on May 4, 2009. Her complaint also alleged that Larry
had fraudulently conveyed the property to their son, Seth. At
a September 23, 2014 hearing, counsel for Larry and Seth
moved for dismissal, arguing that the circuit court lacked
jurisdiction to hear the case because the disposition of the
property had been adjudicated as part of Larry and
Allison's prior divorce proceeding; thus, Allison's
claim was barred by res judicata. During the hearing, the
circuit court requested a copy of the divorce file, reviewed
it, suspended the hearing, and ordered the parties to file
briefs on the jurisdiction issue.
January 12, 2015, the circuit court entered a letter opinion,
citing paragraph two of the parties' 2012 divorce decree
and stating that "the decree did not address any
specific real property, either by reference or
otherwise." The court, in its letter opinion, further
found that res judicata did not apply to Allison's cause
of action for breach of contract because the matter had not
previously been adjudicated. After a second hearing on April
4, 2016, the circuit court entered its findings of facts and
conclusions of law. This appeal followed.
and Seth's first point on appeal is that the circuit
court erred in finding that res judicata did not apply and
that the circuit court had jurisdiction. They contend that
Allison's cause of action with regard to the property had
been adjudicated in the divorce proceedings in another court.
claim-preclusion aspect of res judicata forecloses
relitigation in a subsequent suit when (1) the first suit
resulted in a final judgment on the merits; (2) the first
suit was based on proper jurisdiction; (3) the first suit was
fully contested in good faith; (4) both suits involved the
same claim or cause of action; and (5) both suits involved
the same parties or their privies. McCoy v. Jackson,
2011 Ark.App. 456, at 2 (citing Pentz v. Romine, 75
Ark.App. 274, 57 S.W.3d 235 (2001)). Claim preclusion bars
not only the relitigation of issues that were actually
litigated in the first suit but also those that could have
been litigated but were not. Id.
order to determine whether the circuit court properly denied
the motion to dismiss based on res judicata, "we must be
able to determine the specific claims and issues that were
presented and resolved in the prior suit."
McCoy, 2011 Ark.App. 456, at 2 (citing McNeil v.
Lillard, 79 Ark.App. 69, 70, 86 S.W.3d 389, 390 (2002)).
In McNeil, we held that we could not make such a
determination without reviewing the judgment in the prior
proceeding; therefore, we ordered rebriefing because the
appellant failed to include the letter opinion from the first
trial in her addendum. 79 Ark.App. at 70-71, 86 S.W.3d at
case at bar, neither the 2012 divorce decree nor the
parties' trial briefs on the jurisdiction issue are
included in the addendum or record. Therefore, we order Larry
and Seth to supplement the record and addendum accordingly.
Ark. R. App. P.-Civ. 6(e) (2016); Ark. Sup. Ct. R.
4-2(a)(8)(A)(i) (2016). We further note that the circuit
court's January 12, 2015 letter opinion denying Larry and
Seth's motion to dismiss for lack of jurisdiction is not
included in the addendum in violation of Rule
4-2(a)(8)(A)(i). We order Larry and Seth to include this
document in the supplemental addendum.
and Seth's second point on appeal is that the circuit
court erred in finding that Allison's power of attorney
in favor of Larry did not effectuate a valid transfer of the
property from David to Seth. We cannot reach the merits of
this argument because Larry and Seth have failed to include
the power of attorney and the assignment of the real estate
contract in the addendum in violation of Rule
4-2(a)(8)(A)(i). We order Larry and Seth to include these
documents in the supplemental addendum.
conclusion, we remand and direct Larry and Seth to file with
our clerk's office, within thirty days from the date of
this order, a certified, supplemental record. Ark. R. App.
P.-Civ. 6(e). Upon filing the supplemental record, Larry and
Seth shall have fifteen days in which to file a substituted
addendum and brief. Ark. Sup. Ct. R. 4-2(b)(3). Upon filing
the supplemental addendum and brief, Allison shall have
fifteen days to revise or supplement her brief. We encourage
Larry and Seth to carefully review our rules to ensure that
no additional deficiencies exist. According to Rule
4-2(b)(3), if Larry and Seth fail to file a complying
addendum and ...