FROM THE PULASKI COUNTY CIRCUIT COURT, THIRTEENTH DIVISION
[NO. 60DR-14-1084] HONORABLE W. MICHAEL REIF, JUDGE
Everett Law Firm, by: John C. Everett; and Smith, Cohen &
Horan, PLC, by: Matthew T. Horan, for appellant.
& Kemp, PLLC, by: Angela Mann, for appellee.
J. GLADWIN, Judge
Chris Elder appeals the June 20, 2017 order of the Pulaski
County Circuit Court arguing that the trial court erred in
holding him in contempt and in its award of attorney's
fees. Appellee Kerri Elder cross-appeals arguing that the
trial court improperly found that her right of first refusal
had expired with respect to the sale of the five lots. We
reverse on direct appeal and affirm on cross-appeal.
and Kerri divorced pursuant to a final order entered on
October 14, 2015. At the time of divorce, the parties were
real estate investors in Northwest Arkansas with a marital
estate that included several million dollars' worth of
income-producing property, most of which they handled by
incorporating into the divorce decree a settlement agreement
that divided the real properties they owned. Paragraph 11 of
the order provided that each would have
the right of first refusal if the other elects to sell . . .
any of the properties awarded to them herein. . . . Failure
to give notice of a party's election to exercise this
first option within 10 days of being notified of the proposed
sale shall be deemed a waiver of such a right.
parties negotiated this right of first refusal because they
each owned income-producing property in the same
subdivisions; accordingly, each had an interest in acquiring
the properties awarded to the other.
undisputed that the right-of-first-refusal language in the
order was "short on detail" and provided neither
the content of the notice to be sent when properties were to
be sold nor the contents of any notice by the optionee to
indicate a desire to exercise the right of first refusal. It
simply provided that the failure to elect within ten days
operated as a waiver of the right.
planned to sell several of the parcels of real property
awarded to him in the divorce. On February 7, 2017, he sent
notice to Kerri in the form of a text stating that he was
going to sell eight Stonegate duplexes for $215, 000 and
triplexes for $315, 000. He indicated that he was sure she
was not interested in buying, but that he was letting her
know. In response, Kerri said she would like "to discuss
the duplexes, " but her response dealt primarily with a
promissory note she held on which Chris was obligor.
replied on February 13, 2017, that he had been informed by
his attorney that Kerri might be interested in exercising her
right to purchase the duplexes and that "if so, I need
to know right away." Kerri sent no additional
communication regarding the duplexes within ten days of that
message from Chris because she was waiting for him to send
her copies of the contracts he had obtained on those
March 25, 2017, Chris's assistant emailed to Kerri offers
and acceptances regarding five additional lots that showed
addresses and prices but redacted the buyers names and
signatures. Kerri did not declare within ten days of the
email that she wanted to buy any of these properties. Certain
of these contracts were set to close on May 5, 2017.
April 13, 2017, Chris sent Kerri full copies of the deeds of
the eight lots he had under contract in February. Kerri again
did not notify Chris within ten days ...