MARVIN DAILY, TAMARA DAILY, DAILY'S FLEETING & HARBOR SERVICE, INC., AND T&M GROCERY SERVICE, INC. APPELLANTS
JOHN LANGHAM AND OLD FORT PROPERTIES, LLC APPELLEES
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCV-16-329] HONORABLE J. MICHAEL FITZHUGH, JUDGE.
Lisa-Marie Norris and Kevin Holmes, for appellant.
& Hall, PLLC, by: Joe D. Byars, Jr., for appellees.
RAYMOND R. ABRAMSON, Judge.
Daily, Tamara Daily, Daily's Fleeting & Harbor
Service, Inc. ("Fleeting & Harbor"), and
T&M Grocery Services, Inc. ("T&M"), appeal
the Sebastian County Circuit Court order dismissing their
complaint against John Langham and Old Fort Properties, LLC
("Old Fort"). On appeal, they argue that the
circuit court erred by finding their claim was barred by res
judicata. We affirm.
and Tamara are husband and wife. They own Fleeting &
Harbor and T&M. In July 2012, Marvin, Tamara, Fleeting
& Harbor, and T&M entered into an agreement to sell
Marvin Properties, LLC ("Marvin Properties"), and
other miscellaneous items to John Langham. Marvin Properties' assets included an
18.9-acre tract of land on the Arkansas River (the
"riverfront property"). The July 2012 agreement
collectively refers to Marvin, Tamara, Fleeting & Harbor,
and T&M as "Daily."
agreement notes that Elizabeth Perry, Marvin's former
business partner and girlfriend, had an interest in Marvin
Properties and that Marvin and Perry had been litigating the
ownership of the company in the Sebastian County Circuit
Court (the "Perry litigation"). Specifically, the
parties in the Perry litigation included Perry as the
plaintiff and Marvin, Marvin Properties, and Fleeting &
Harbor as the defendants. Tamara and T&M were not parties
to the litigation. Paragraphs five, six, and eight of the
July 2012 agreement provide in part:
5. The purchase price will be $300, 000. It will be paid by
assumption of an indebtedness in favor of David Craven, of
$165, 418.34, and seller financing for the remainder as
defined below, with Langham agreeing that once he has sold a
boat currently for sale and the Perry litigation is settled,
he will pay $50, 000 on the Seller financed obligation.
6. Beginning with the June 2012 payment, Langham will pay the
David Craven monthly payment, and all payments made by him
will be credited against the purchase price and set off
against the amount that will be financed by Seller financing.
8. The parties will close after the Perry Litigation is
settled, or Perry agrees to the sale, and the title insurance
commitment is issued confirming that there are no title
defects that will interfere with Langham's intended use
of the Property or with marketability of title.
January 13, 2013, the Sebastian County Circuit Court entered
an order in the Perry litigation. The court noted that the
sole issue to be resolved was the division of Marvin and
Perry's interests in Marvin Properties. The court ordered
that the net proceeds from the July 2012 agreement to sell
Marvin Properties shall be divided equally between Perry and
Marvin. Following the entry of the court's order, in
February 2014, Langham assigned his interest in the July 2012
agreement to his company, Old Fort.
February 2, 2015, Old Fort filed a petition for intervention
and third-party demand in the Perry litigation against Marvin
Properties, Marvin, and Perry and alleged claims for specific
performance, breach of contract, and unjust enrichment.
Specifically, it alleged that Langham had made the monthly
payments to Craven, Marvin Properties' creditor, pursuant
to the July 2012 agreement but that Perry had refused to
accept payments for the purchase price of the riverfront
property and had refused to transfer it.
October 19, 2015, Marvin Properties, Marvin, Perry, Fleeting
& Harbor, and Old Fort filed a joint motion to dismiss.
They alleged that "all claims and controversies existing
between them in the above captioned matters have been
resolved" and asked the court to "dismiss all
claims . . . with prejudice." On that same day, the
circuit court entered an order dismissing Perry's
complaint against Marvin, Marvin Properties, and Fleeting
& Harbor with prejudice. The court also dismissed Old
Fort's third-party complaint against Perry, Marvin, and
Marvin Properties with prejudice.
March 22, 2016, Marvin, Tamara, Fleeting & Harbor, and
T&M filed the instant action against Langham and Old
Fort. They alleged that Langham and Old Fort had failed to
pay the remaining balance on the July 2012 ...