John H. Miller and his wife, Barbara A. Miller v. Ramona Norsey, Joey King and Melba King

ca00-158

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOHN F. STROUD, JR.

DIVISION III

JOHN H. MILLER and his wife,

BARBARA A. MILLER

APPELLANTS

V.

RAMONA NORSEY, JOEY KING and

MELBA KING

APPELLEES

CA 00-158

October 4, 2000

APPEAL FROM THE DREW

COUNTY CHANCERY COURT,

[CIV-97-180, E-99-139]

HONORABLE ROBERT C.

VITTITOW, CHANCELLOR

AFFIRMED

This case involves a default judgment. On August 1, 1996, appellee Ramona Norsey conveyed real property by warranty deed to appellees Joey and Melba King. On December 4, 1997, Norsey filed a complaint in circuit court alleging that the Kings were in default on payments owed for the property. She sought a monetary judgment. The Kings filed a timely answer, generally denying the allegations in the complaint. On March 10, 1999, Norsey filed an amended complaint, adding additional allegations and asking for alternative forms of relief. The Kings did not respond to this amended complaint. On April 26, 1999, Norsey filed a lis pendens, giving notice of the action commenced with respect to the described property.

On May 3, 1999, the case was transferred from circuit court to chancery court on Norsey's motion. On May 6, 1999, Norsey filed a motion for default judgment and served the Kings' attorney. On May 13, 1999, a warranty deed was filed, by which the Kings conveyed the property to appellants, John and Barbara Miller. On May 17, 1999, the default judgment was entered against the Kings in chancery court, setting aside the warranty deed to them from Norsey. On May 26, 1999, Norsey filed a motion to amend the default judgment to include the Millers, and requested that the chancellor enter orders to quiet title in Norsey, to determine the right of possession of the property, and to issue a writ of assistance to Norsey. On that same date, Norsey filed a second lis pendens with respect to the property. On June 10, 1999, appellants filed a motion to set aside the default judgment. On June 11, 1999, they filed a response to Norsey's motion to amend the default judgment, a separate answer to the amended complaint, and a cross-complaint against the Kings. On August 16, 1999, the chancellor entered an order denying appellant's motion to set aside the default judgment. On August 17, 1999, he entered an order granting Norsey's motion to amend the default judgment. Appellants appeal from those two orders. We affirm.

For their first point of appeal, appellants contend that the chancellor erred in denying their motion to set aside the default judgment and in granting appellee's motion to amend the default judgment because Norsey had failed to give three-days' written notice of a hearing on the motion for default judgment, because the Kings had appeared in the action, and because appellants had asserted and made a prima facie showing of a defense. We find no error.

Rule 55 of the Arkansas Rules of Civil Procedure addresses default judgments and provides in pertinent part:

(a) When Entitled. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.

(b) Manner of Entering Judgment. The party entitled to a judgment by default shall apply to the court therefor, but no judgment by default shall be entered against an infant or incompetent person. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as it deems necessary and proper and may direct a trial by jury.

(Emphasis added.)

Three Days' Notice

Under this subsection, appellants assert that "neither the Original Defendants [Kings], nor the Appellants, were given any notice, written or oral, of the hearing on the motion for default judgment." Yet, there is no record of such a hearing and the docket sheets do not list a hearing on the motion for default judgment taking place in the instant case. Moreover, "Rule 55(b) plainly gives the trial court discretion with respect to whether to conduct a hearing, `[i]f, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter . . . .'" Polselli v. Aulgur, 328 Ark. 111, 115, 942 S.W.2d 832, 834 (1997).

Moreover, appellants contend that the instant case is almost identical to Magness v. Masonite Corp., 12 Ark. App. 117, 671 S.W.2d 230 (1984), where we reversed a chancellor's denial of a motion to set aside a default judgment because it was granted without giving the three days' written notice of the hearing on the application for the default. We find the case to be distinguishable. In Magness, the appellant answered the original complaint, but not the amended complaint, as happened here. However, in Magness a motion for default judgment was never filed, while such a motion was filed in the instant case and served on the Kings' attorney more than three days before entry of the default judgment. Consequently, the Kings were given notice as required by Rule 55.

Kings' Appearance

Under this subsection, appellants contend that Rule 55 "authorizes a default judgment only when a party `has failed to appear or otherwise defend . . . .' [and that] such is not the case here, because the original defendants (Kings) filed a general denial." The only case cited by appellants under this subsection is Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976). Again, we find that the case is distinguishable. In Winters, the supreme court explained:

It is consistent with both the spirit and letter of our statutes governing pleadings to consider, under the circumstances prevailing, that the amendment to the complaint in this case (which raised no new issue but simply corrected the name of the defendant) related back to the original complaint, so that a default judgment was barred by the original answer. If the bar of the statute of limitations may be avoided by such means, the declaration of a default should, by a similar treatment, be prevented.

260 Ark. at 570, 542 S.W.2d at 750 (emphasis added).

In Winters, the only difference between the original complaint and the amended complaint was to correct a party's name. Here, however, while paragraphs one through seven of the amended complaint were essentially identical to the original complaint, paragraphs eight through fourteen contained new allegations and claims for relief. The fact remains that whatever arguments the Kings might have been able to raise in response to the amended complaint, they did not do anything; moreover, they had apparently instructed their attorney after filing the general denial that she was not to do anything further.

Appellants' Prima Facie Showing of a Defense

Regardless of whether appellants made a prima facie showing of a defense as required by Rule 55(c) in order to set aside a default judgment, that fact alone is not sufficient to find that the chancellor erred in denying their motion to set aside the default judgment.

For their second point of appeal, appellants contend that the trial court erred in determining that the lis pendens was effective against them because the lis pendens was defective, because a lis pendens is not effective for a monetary judgment, because failure of consideration is not a ground to set aside a deed, because no equitable lien existed, and because appellee Norsey did not comply with the statutory procedure for quieting title. We find no error.

The Lis Pendens

In a letter opinion, the chancellor explained that the purpose of a lis pendens is to notify the world that an action has been filed seeking to affect title to real estate. He determined that if appellants had discovered the lis pendens, they would have been led to theamended complaint which sought to declare a lien on the subject property or to cancel and set aside the deed.

The lis pendens in question was filed April 26, 1999. Its caption correctly identifies Ramona Norsey as the plaintiff and Joey and Melba King as the defendants, and it describes the property in question.

Arkansas Code Annotated sections 16-59-101 and -102 (1987) provide in pertinent part:

To render the filing of any suit at law or in equity . . . affecting the title or any lien on real estate . . . constructive notice to a bona fide purchaser . . . of any such real estate . . ., it shall be necessary for the plaintiff . . . to file a notice of the pendency of the suit, for record with the recorder of deeds of the county in which the property to be affected by the constructive notice is situated.

§ 16-59-101.

The notice of the pendency of the suit shall set forth the title of the cause and the general object thereof, together with a correct and full description of the property to be affected thereby, the names of the parties to the suit, and the style of the court where the suit is pending.

§ 16-59-102.

In stating the general object of the pending suit, the lis pendens incorrectly identified the action as one "for the purpose of foreclosing the lien of a mortgage . . . ." Appellants assert that such an error rendered the lis pendens ineffective. We disagree. Although the stated purpose of the lawsuit was incorrect, it was still sufficient to alert the world that an action had been filed that might affect title to the property in question.

The remaining error urged by appellants as invalidating the lis pendens lies in the attorney's signature block at the bottom of the document where the Bank of Star City was incorrectly shown as the plaintiff. We find such an error to be of no consequence under the circumstances because the plaintiff was correctly and clearly identified in the caption of the document and the affected property was also correctly and clearly identified.

Lis Pendens Not Effective for Monetary Judgment

Appellants contend that the true basis for appellee Norsey's claim, in both the original and the amended complaint, can only be for a monetary judgment and that "a lis pendens is not effective for monetary judgments." We simply note that the amended complaint was filed prior to the first lis pendens and prior to the Kings' conveyance to appellants and that the amended complaint contained allegations of bases for relief other than a money judgment. The fact that an underlying action setting forth several different claims for relief may ultimately support only a claim for a money judgment does not negate the notice that such claims would give a prospective purchaser regarding problems with the title to the property.

Failure of Consideration, No Equitable Lien, Failure to Comply with Procedures to Quiet Title

Appellants' arguments that failure of consideration does not provide grounds for setting aside a deed, that no equitable lien existed, and that appellee Norsey failed to comply with the statutory procedures for quieting title do not convince us that the trial court committed reversible error in this case. We simply note that appellants' arguments in this regard are ones that the Kings could have made in defending against appellee Norsey'samended complaint upon a trial of the merits; however, they chose instead to do nothing, causing a default judgment to be entered.

For their third and final point of appeal, appellants contend that t he trial court erred in determining that appellants had no standing to attack the default judgment because they were bona fide purchasers for value, and because the chancellor erred in relying on fraud or mutual mistake to set aside the deed. We find no error.

Appellants argue that the lis pendens was not effective against them because a lis pendens "gives no more notice than the underlying action, which in this case was one for monetary damages only." They further argue that "[w]hen a party looks at a lis pendens he is looking through it to the pleadings, and if the pleadings seek a remedy which cannot be granted under the alleged facts, then there is no notice." They cite no authority. Neither do they cite authority for their contention that "[w]hen a plaintiff seeks a remedy to which he is not entitled, there is no notice because the relief exceeds the power of the Court under the facts of the case." Assignments of error that are unsupported by convincing argument or authority, will not be considered on appeal where it is not apparent without further research that they are not well taken. Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997).

Having been unsuccessful in convincing us that the trial court erred in finding that appellants had no standing to set aside the default judgment in this case, it is not necessary to address in much detail their final argument under this third point. That is, as has been true with several previous arguments raised by appellants, the Kings might well have defended against appellee Norsey's amended complaint and the entry of default judgment by assertingthat Norsey "did not allege fraud nor mutual mistake." However, the Kings failed to do so and appellants are now stuck with that failure. Furthermore, had the appellants timely checked the status of the title to the property they were buying, they would have found the lis pendens and the amended complaint, and surely they would not have purchased the property until the matter was resolved.

Affirmed.

Pittman and Neal, JJ., agree.