First National Bank of Lewisville v. Eddie Mayberry, Chylene Mayberry, and Farmers Bank and Trust Company
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SUPREME COURT OF ARKANSAS
No.
FIR ST N ATIO N A L
LEWISVILLE,
BANK
04-1381
OF
APPELLANT,
VS.
E D D IE M A Y B E R R Y , C H Y L E N E
MAYBERRY, & FARMERS BANK AND
TRUST COMPANY,
APPELLEE,
1.
Opinion Delivered
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT,
NO. CIV-02-171-4,
HON.
CAROL
CRAFTON
ANTHONY, JUDGE,
APPEAL DISMISSED.
M OTIONS – MOTION TO VACATE – ATTEMPT TO VACATE ORDER CONFIRMING
COMMISSIONER’S SALE. – Appellant bank’s motion to vacate was, in reality, an
attempt
to vacate the order confirming the commissioner’s sale of the property, the order
approving the commissioner’s deed, and the commissioner’s deed; because the motion
to vacate was not filed with ten days of the filing of the circuit court’s orders and deed,
the motion did not fall within the deemed-denied provision of Ark. R. App. P.–Civ.
4(b)(1).
2.
A PPEAL & ERROR – A RK. R. C IV. P. 60(B) – LACK OF A FINAL, APPEALABLE ORDER.
– Because the trial court failed to make a ruling regarding Ark. R. Civ. P. 60(b), the
supreme court lacked jurisdiction, until there was a final, appealable order, to hear
appellant bank’s argument that the circuit court erred in not correcting erroneous
documents under Rule 60(b).
Appeal from Columbia Circuit Court; Carol Crafton Anthony, Judge; appeal dismissed.
David P. Price, for appellant.
David W. Talley, Jr., for appellees.
B ETTY C. D ICKEY, Justice.
This appeal arises out of a foreclosure granted by the Columbia County Circuit Court
in favor of the appellant, First National Bank of Lewisville (the bank), and Farmers Bank and
Trust 1 against land owned by appellees, Eddie and Chylene Mayberry. The bank is appealing
the circuit court’s denial of its motion to vacate documents related to the foreclosure sale of
the Mayberrys’ property that it claims contained a clerical mistake. Appellant argues that the
circuit court erred in not correcting the erroneous documents pursuant to Rule 60(b) of the
Arkansas Rules of Civil Procedure. The circuit court’s decision was affirmed by the Arkansas
Court of Appeals in First National Bank of Lewisville v. Mayberry, 89 Ark. App. 5, ___ S.W.3d
___ (2004). We granted appellant’s petition for review of that decision pursuant to Ark. Sup.
Ct. R. 1-2(e). However, we now dismiss the appeal, without prejudice, as there was not a
1
Farmers Bank & Trust was named a defendant in appellant’s complaint for
foreclosure because it holds a prior lien on the residence parcel; however, as there has been
no sale of the residence parcel, Farmers is not a party to this appeal.
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final, appealable order.
Appellant initiated foreclosure proceedings against the Mayberrys on August 21, 2002.
The Mayberrys’ property comprised two parcels of land: Tract A contained 11.69 acres and
some chicken houses (hereinafter, the “acreage parcel”), and Tract B contained 2.10 acres and
the Mayberrys’ home (hereinafter, the “residence parcel”). Appellant held a first-mortgage lien
on the acreage parcel and a second-mortgage lien on the residence parcel, subject to a firstmortgage lien in favor of Farmers Bank & Trust Company.
The foreclosure action went to trial on January 30, 2003. Appellant appeared by its
attorney; the Mayberrys appeared pro se. In lieu of a trial, the parties reached an agreement
that was memorialized by a handwritten entry on the court’s docket sheet, which read as
follows:
Case called for trial: D. Price for Bk of Lewisville, Eddie & Chylene Mayberry
appear pro se, Parties agree to foreclosure in rem, Bank agrees to two sales –
will sell property one parcel at time – will sell non-home parcel first –
determine defic [deficiency] then attempt to work out something on home.
The circuit court entered a decree of foreclosure, awarding judgment in rem against both
parcels of land in favor of appellant in the amount of $86,534.90 and against the residential
parcel in favor of Farmers Bank & Trust Company in the amount of $53,693.15. The decree
also appointed John Upton, appellant’s president, as commissioner to advertise and sell the
property. On that same date, Mr. Upton filed a notice of commissioner’s sale of the acreage
parcel to be held on February 19, 2003.
When no bids were received on the property at the commissioner’s sale, Mr. Upton
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bid on the property for appellant. Following the sale, the commissioner filed the
commissioner’s report of sale describing the acreage parcel and stating that appellant
did bid and offered the sum of $86,534.90 for all of the property described in
said Decree [of Foreclosure]. This was the highest bid made at such offering,
and said property was struck off and sold to said bidder, subject to the approval
of this Court, at the price offered.
On March 3, 2003, the circuit court entered an order confirming the sale, an order approving
the commissioner’s deed, and the commissioner’s deed. The sale price listed on all of these
documents was $86,534.90.
On May 2, 2003, the commissioner advertised the sale of the residence parcel to be
held on May 22, 2003. Before the sale, the Mayberrys filed a complaint seeking an injunction
to prevent the sale of the residence parcel, contending that the $86,534.90 purchase price
received for the sale of the acreage parcel satisfied in full the Mayberrys’ indebtedness to
appellant. The circuit court granted a preliminary injunction on May 19, 2003, and on May
21, 2003, appellant filed a motion to vacate the commissioner’s report of sale, the order
confirming the sale, the order approving the commissioner’s deed, and the commissioner’s
deed, alleging that as a result of mistake and inadvertence of the scrivener, the documents
erroneously stated an incorrect amount as to the bid and sale price for the acreage parcel.
At a hearing on the motion to vacate, Mr. Upton testified that, in addition to himself
and his attorney, only two people showed up at the sale, which took place at the Columbia
County courthouse. He said that the people made a few jokes about the condition of the
property and said that the most they would pay for the property was $5,000. Mr. Upton then
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testified that he made a bid on the property for appellant in the amount of $26,534.90, which
equaled the total amount of the judgment less $60,000. There is no written record of the
proceedings. When asked the significance of the $60,000, he stated that appellant’s appraisal
of the home, conducted when the loan was made, valued the home at $63,000. Mr. Upton
testified that after the sale, he signed a report of sale prepared by his lawyer that incorrectly
stated that the amount of the bank’s bid was $86,534.90. He admitted that he probably did
not look at the report of sale and commissioner’s deed when he signed them because he
generally relied upon what he received from his lawyer to be accurate.
In an affidavit filed on the date of the hearing, appellant’s attorney confirmed Mr.
Upton’s account of the sale and appellant’s bid, and also stated that the acreage parcel had
appraised for less than $20,000. He explained that his secretary prepared the post-sale
foreclosure documents, doing what was “usual and customary” by showing that the entire
amount of the judgment, in this case $86,534.90, was bid for the property. However, because
this foreclosure was being handled as two sales rather than the normal practice of one sale, the
entire amount of the judgment was not bid on the acreage parcel. The attorney stated that he
did not “catch” the error in the documents before they were sent to Mr. Upton.
After the hearing, the trial court did not rule on appellant’s motion to vacate. Appellant
deemed its motion to have been denied after the lapse of thirty days, and filed its appeal. See
Ark. R. App. P. – Civ. 4(b)(1). The court of appeals affirmed, finding that the error resulted
from the inadequate representation of appellant’s own president and its attorney. The court
then held that this was not the type of “clerical error” contemplated by Ark. R. Civ. P. 60(b).
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First Nat’l Bank of Lewisville v. Mayberry, 89 Ark. App. 5, ___ S.W.3d ___ (2004). We granted
appellant’s petition for review of that decision pursuant to Ark. Sup. Ct. R. 1-2(e).
When this court grants a petition to review a decision of the court of appeals, we
review the matter as if the appeal had been originally filed in this court. Office of Child Support
Enforcement v. Pyron, 363 Ark. 521, ___ S.W.3d___ (2005). We review a trial court’s
determination of a Rule 60 motion for abuse of discretion. See Wandrey v. Etchison,363 Ark.
36, ___ S.W.3d ___ (2005); Pyron, supra.
It is undisputed that the circuit court did not rule on appellant’s motion to vacate.
This court has long held that, to be appealable, an order must be final. Liberty Life Ins. Co.
v. McQueen, 364 Ark. 367, ___ S.W.3d ___ (2005); Ark. R. App. P.– Civ. 2(a)(1). However,
appellant contends that his motion may be deemed denied, pursuant to Ark. R. App. P. –
Civ. 4(b)(1), since there had been a lapse of thirty days without a ruling from the circuit
court. Appellate Rule 4(b)(1) states in pertinent part:
Upon timely filing in the circuit court of a motion for judgment
notwithstanding the verdict under Rule 50(b) of the Arkansas Rules of Civil
Procedure . . . or any other motion to vacate, alter or amend the judgment made
no later than 10 days after the entry of judgment, the time for filing a notice of
appeal shall be extended for all parties . . . However, if the circuit court neither
grants nor denies the motion within thirty (30) days of its filing, the motion
shall be deemed denied by operation of law as of the thirtieth day . . . .
Ark. R. App. P. – Civ. 4(b)(1) (emphasis added).
Appellant’s motion to vacate was filed on May 21, 2003, one day after the filing of the
court’s order granting a preliminary injunction on behalf of the Mayberrys, which directed
First National Bank of Lewisville to cease its attempt to sell the property. If appellant’s
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motion to vacate was an attempt to vacate the preliminary injunction, it clearly would fall
within Appellate Rule 4(b)(1), and could be “deemed denied” after a lapse of thirty days
without a ruling from the court. However, appellant’s motion to vacate was, in reality, an
attempt to vacate the order confirming the sale, the order approving the commissioner’s deed,
and the commissioner’s deed, all of which were filed on March 11, 2003. Because the motion
to vacate was not filed within ten days of March 11, 2003, it does not fall within the “deemed
denied” provision of Appellate Rule 4(b)(1).
Appellate Rule 4(b)(1), however, is irrelevant to this argument, as an argument based
upon a clerical error can be raised at any time under Rule 60(b). Ark. R. Civ. P. 60(b).
Appellant is arguing on appeal that the circuit court erred in not correcting the erroneous
documents pursuant to Rule 60(b) of the Arkansas Rules of Civil Procedure. The trial court
failed to make a ruling regarding Rule 60(b). Again, this court may not entertain an
argument when a final order on the issue being appealed was not made by the trial judge.
Liberty Life Ins. Co., supra. Therefore, this court lacks jurisdiction to hear the instant appeal
until there is a final, appealable order.
Dismissed.
G UNTER, J., not participating.
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