Rita Martin v. Mary Lynch
Annotate this Case
Download PDF
DIVISION II
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
John Mauzy Pittman, Judge
CA06-324
November 29, 2006
RITA MARTIN
APPELLANT
AN APPEAL FROM CONWAY COUNTY
CIRCUIT COURT
[No. CV 2004-110]
v.
HONORABLE DAVID H. McCORMICK,
CIRCUIT JUDGE
MARY LYNCH
APPELLEE
AFFIRMED
The Conway County Circuit Court entered an order setting aside a deed from appellee
Mary Lynch to appellant Rita Martin after Martin and her attorney failed to appear for a
hearing. Martin now appeals, contending that the trial court erred in allowing Lynch to
present her case but not allowing Martin to do the same. Martin also contends that the
evidence does not support the trial court’s decision. We disagree, and we affirm.
Martin and Lynch are sisters. Certain property was conveyed to Lynch in April 2003.
Pursuant to an oral agreement, Lynch conveyed the property to Martin by deed dated
December 5, 2003.
On July 1, 2004, Lynch filed suit, alleging that Martin had failed to pay for the
property as agreed. The complaint, labeled a “Constructive Trust Complaint,” further alleged
that Martin had paid only $400 towards an agreed price of $5,000, that Lynch had demanded
that Martin convey the property to her, and that Martin held the property in constructive trust
for Lynch. The complaint prayed that Martin immediately convey the property to Lynch. In
response, Martin filed a motion to dismiss raising the statute of frauds as a defense, stating
that there was no written agreement concerning the transaction, other than the warranty deed.
The motion also asserted that the complaint failed to state facts upon which relief could be
granted. Martin never filed an answer to the complaint.
After a continuance, the matter was scheduled for a one-hour hearing on November 4,
2005, at 10:00 a.m. When the case was called, neither Martin nor her attorney were in the
courtroom, although Martin had been seen outside the courtroom earlier. After another call
for Martin or her attorney went unanswered, Lynch was allowed to present her case. Lynch
testified that she received the property from her mother. She said that Martin and Martin’s
then-husband talked Lynch into selling the property to them for $5,000, with payments to be
$200 per month. Lynch identified the deed given to Martin and testified that Martin made
only two payments totaling $400. She said that, after a dispute over the taxes on the property,
Martin refused to make further payments. Lynch asked the court for a constructive trust so
she could reclaim her land. The trial court ruled from the bench that the pleadings would be
amended to conform to the proof and that the deed from Lynch to Martin would be set aside.
A short time later, Martin’s attorney, John Purtle, appeared in court and explained that
he was tardy because his watch had not been properly set. The trial court, after noting that
it had made a ruling from the bench, stated that it did not believe that counsel’s watch not
2
being properly set would be sufficient to set aside the ruling but added that it would
considered any pleadings counsel chose to file.
On November 10, 2005, Martin filed a “Motion To Set Aside Opinion” that recited
the chronology of events occurring the day of trial and asserted that “[t]here was nothing in
writing except the deed to [Martin].” The motion also asserted that the statute of frauds, Ark.
Code Ann. § 4-59-101 (Repl. 2001), requires deeds to be in writing. The motion prayed that
a default judgment not be entered and that the case be reset for trial. Attached to the motion
was an affidavit from Martin and her husband setting forth the chronology of events. The
trial court did not rule on the motion. The order setting aside the deed from Lynch to Martin
was entered on December 27, 2005. Martin timely appealed to this court.
On appeal, Martin raises two points: (1) that the trial court erred in allowing Lynch
to present her case but not allowing Martin to present her case, and (2) that the evidence is
insufficient to support the order setting aside the deed.
In the heading of her first point, Martin argues that the trial court erred in not allowing
her to present her case. However, we are not sure what argument Martin is making in the
body of the argument. If Martin is arguing that the trial court should have granted her motion
for relief from the judgment, our review is governed by an abuse-of-discretion standard.
Farmers Union Mutual Insurance Co. v. Mockbee, 21 Ark. App. 252, 731 S.W.2d 239
(1987). We cannot say that the trial court abused its discretion in not setting aside the
judgment or in proceeding with trial despite the absence of Martin or her attorney. Martin
does not argue that she did not have notice of the trial setting. She had been in the vicinity
3
of the courtroom prior to the case being called; however, she left and was not present when
the case was called. Had she stayed near the courtroom, she could have explained the
situation to the court and asked the court to proceed with other cases and come back to her
case when her attorney arrived or asked for a continuance.
For her second point, Martin argues that the evidence does not support the judgment
entered by the trial court. She seems to argue that there is no basis for the imposition of a
constructive trust. However, this ignores the fact that the trial court amended the pleadings
to conform to the proof and that, when Lynch testified that she wanted her property back, she
was actually seeking rescission of the agreement to convey the property to Martin.
It is basic contract law that, where there is a material breach of contract, substantial
nonperformance, and entire or substantial failure of consideration, the injured party is entitled
to rescission of the contract and restitution and recovery back of money paid. Economy
Swimming Pool Co. v. Freeling, 236 Ark. 888, 370 S.W.2d 438 (1963). Here, Lynch testified
that she agreed to sell the property to Martin for $5,000 and that Martin paid only $400. This
testimony, if believed by the trial court, would serve to establish Martin’s breach and
substantial nonperformance and provide the basis to rescind the agreement.
Martin also contends that the statute of frauds applies. It does not. First, Lynch is not
seeking to enforce the agreement; she is seeking to disaffirm it. Second, Martin made two
$200 payments under the contract, and that serves to take the agreement out of the statute of
frauds. Johnston v. Curtis, 70 Ark. App. 195, 16 S.W.3d 283 (2000). Third, the mischief at
which the statute of frauds is aimed no longer exists because the oral agreement has been
4
executed by a conveyance of the land to Martin. See Hogue v. Hogue, 247 Ark. 914, 448
S.W.2d 627 (1969); Johnson v. Cheek, 163 Ark. 176, 259 S.W. 368 (1924).
Finally, Martin raises suspicions about the receipts for payments, whether the proper
parties were named, and whether there was an outstanding mortgage or other encumbrance
on the property. However, these matters were never presented to the trial court, and no ruling
was obtained. We will not consider issues raised for the first time on appeal. See Jacobs v.
Yates, 342 Ark. 243, 27 S.W.3d 734 (2000).
Affirmed.
G RIFFEN and G LOVER, JJ., agree.
5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
