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Daily v. Langham

Court of Appeals of Arkansas, Division III

May 17, 2017

MARVIN DAILY, TAMARA DAILY, DAILY'S FLEETING & HARBOR SERVICE, INC., AND T&M GROCERY SERVICE, INC. APPELLANTS
v.
JOHN LANGHAM AND OLD FORT PROPERTIES, LLC APPELLEES

         APPEAL 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.

          Byars & Hall, PLLC, by: Joe D. Byars, Jr., for appellees.

          RAYMOND R. ABRAMSON, Judge.

         Marvin 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.

         Marvin 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.[1] 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."

         The 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.

         On 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.

         On 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.

         On 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.

         On 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 ...


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