FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CV-16-1039]
HONORABLE LYNN WILLIAMS, JUDGE
S. Tschiemer, for appellant.
Sanders Law Firm, P.A., by: Michael E. Sanders, for appellee.
BRANDON J. HARRISON, JUDGE.
Riley appeals a judgment entered in favor of Welcometotulum
Investment Properties, LLC (WIP). He argues that the circuit
court's judgment should be reversed based on frustrated
performance of the contract, estoppel, waiver, unclean hands,
and substantial performance. We disagree and affirm.
October 2013, James Green and Doug Riley entered into a real
estate contract in which Green agreed to sell, and Riley
agreed to purchase, property located at 114 Coca Bay Point,
Hot Springs, Arkansas. Under the terms of the contract, the
selling price was $425, 000, of which $85, 000 was paid,
leaving $340, 000 due and payable on 31 October 2018. The
contract provided that until the balance of the purchase
price was paid, Riley would pay a "carrying charge"
of $1800 a month, due and payable on the last day of each
month. Riley was also required to obtain and maintain an
insurance policy for the property. The contract also provided
for a thirty-day grace period after the last day of the month
within which to make that payment without being in default.
However, after the expiration of that thirty days, Green had
the option of declaring the contract forfeited, and Riley
would be required to vacate the premises and return
possession to Green.
October 2016, Green quitclaimed his rights and interest in
the property to WIP. That same date, Green also executed an
assignment of contract that assigned his interest in the
contract to WIP. On 1 November 2016, WIP gave Riley a notice
of default, notice to quit, and demand for possession of
property. The notice alleged that Riley had defaulted by
failing to make payments in a timely manner, declared the
contract terminated and forfeited, and demanded that Riley
vacate the premises on or before 11 November 2016.
did not do so, and on 18 November 2016, WIP filed a complaint
in unlawful detainer. WIP alleged that it was entitled to
possession of the premises, reasonable rent for the period of
time that Riley unlawfully occupied the premises, statutory
damages for unlawful detainer, reimbursement for cleaning and
repair costs, and attorney's fees. Riley answered and
averred that he was current on all payments. He also denied
receiving the notice of default and affirmatively pled a
myriad of affirmative defenses, including unjust enrichment,
unclean hands, waiver, and estoppel.
circuit court convened a bench trial on 3 April 2017. Michael
Tankersley, the managing member of WIP, testified that he
purchased the Coca Bay property and an assignment of contract
and promissory note from James Green. After the purchase,
Tankersley notified Riley of the purchase by mailing him a
notice and by putting a copy of the notice on his front door.
The notice instructed Riley to remit all payments to a post
office box or to deliver payments in person to an address on
Malvern Avenue between the hours of 9:00 a.m. and 4:00 p.m.,
Monday through Friday. At the time of WIP's purchase of
the contract, which was October 27, Riley had not made his
payment that was due on September 30. Tankersley paid Green
that amount, $1800, in anticipation of collecting the money
the grace-period clause of the contract, Riley had until
October 30 to submit his September 30 payment to avoid
default. On Saturday, October 29, Riley contacted Tankersley
by text message, said that he (Riley) was sick, and offered
to put the payment "through the door" at WIP's
office. Tankersley responded that that was not a good idea,
as there was construction going on and quite a few people
going in and out, and that they should just see how Riley was
feeling the next day. Riley text-messaged Tankersley again on
Sunday, October 30, and said, "I know it's family
day I can find u later this afternoon if not early tom your
call." Tankersley told Riley to just give him a call in
the morning, which would be Monday, October 31. They arranged
to meet at 2:00 on Monday afternoon, but Riley did not show
up for the meeting.
morning of Tuesday, November 1, Riley texted Tankersley that
the payment was "in the door at your office."
Tankersley responded that they needed to meet "to
discuss the matter of your outstanding balance." Riley
replied, "I tried all afternoon to find you so I stuck
it thru your door." In response, Tankersley said,
"You didn't try all day. We had a meeting set for 2
you didn't show for, we need to meet today to
discuss." Riley never responded.
explained that he received the September 30 payment
thirty-two days after the actual due date, which is a default
under the contract, so he asked Riley to vacate the property
by delivering a notice of default to Riley's residence at
the Coca Bay property on November 1. Riley was instructed to
vacate on or by November 11. Tankersley received the check
that Riley had put under the door, but he did not cash it
because Riley was in default. Tankersley later received more
checks from Riley, which were also not cashed.
Riley was in default, Tankersley received and paid an
insurance bill for the property in the amount of $1244.49. He
also noted damage to the property, including fire damage from
a car fire in the driveway, that required repairs. Finally,
Tankersley said that he had checked with the bank, and the
checks he received from Riley were non-sufficient-fund
Patrico, vice president of Citizens Bank, testified that
Tankersley asked him, on February 17 and March 6, to verify
three checks from Riley and that there were ...