Raymon Bledsoe and Elfreda Bledsoe v. Steve Lackey, d/b/a Steve Lackey Company Management

ca03-064

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

RAYMON BLEDSOE AND ELFREDA BLEDSOE,

APPELLANTS

v.

STEVE LACKEY, d/b/a STEVE LACKEY COMPANY MANAGEMENT,

APPELLEES

CA03-64

AUGUST 27, 2003

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

HONORABLE DAVID GOODSON, CIRCUIT JUDGE

AFFIRMED

Sam Bird, Judge

In this unlawful-detainer action against appellants Raymon Bledsoe and Elfreda Bledsoe, the circuit court entered judgment for appellee Steve Lackey, d/b/a Steve Lackey Co., Management. Appellants entered into a lease with appellee in 1991; in January 1995, the tenancy changed to a month-to-month term. Appellants failed to pay their November 2001 rent on time, and appellee served them with a notice to vacate. They eventually paid that rent but fell behind in their payments again in February 2002. Appellee served them with another notice to vacate on February 19, 2002. At some time after March 21, 2002, appellee filed a misdemeanor complaint for nonpayment of rent against appellants in district court. On April 24, 2002, appellee filed this unlawful-detainer action in circuit court. After appellants, acting pro se, filed motions for summary judgment and for judgment on the pleadings, alleging numerous objections to the court's jurisdiction and the requested relief, the trial court awarded possession of the premises and judgment for $1,953.75 to appellee. A writ of garnishment, to which appellants objected, was served after the judgment. This appeal followed.

The Transfer to Circuit Court

Appellants argue that the trial court erred in permitting the district court to transfer the case to circuit court. Appellants admit that there is no motion to transfer or order transferring the case in the record but argue that, because appellee's attorney stated that a transfer had occurred, it must be considered as having been transferred. We disagree. It is true that appellee's attorney stated at the hearing:

Once I became involved, we requested that the Small Claims Court transfer this action to the Circuit Court because of the requested relief which we believe the Small Claims Court did not have jurisdiction to grant. As a result, the action in Small Claims Court was not adjudicated, and was transferred here to this particular action.

We note, however, that appellants have omitted the remainder of the statement made by appellee's counsel at the hearing:

I don't think you have a copy of the order to transfer here, but it's a separate case. It wasn't actually consolidation, but merely something to get it off the docket in Small Claims Court.

We filed a complaint in unlawful detainer as I said on April 24th. Prior to that, a notice to vacate had been served.

It is clear from this statement that this case was filed as a separate unlawful-detainer action

in circuit court. The burden was upon appellants to bring up a record on appeal sufficient to demonstrate that error occurred, and they have failed to do so. See City of Benton v. Arkansas Soil & Water Conservation Comm'n, 345 Ark. 249, 45 S.W.3d 805 (2001). We affirm on this point.

The Writ of Possession

Appellants next contend that the writ of possession should be set aside because appellee was not diligent in obtaining it and because Ark. Code Ann. § 18-60-304 (1987) provides that a writ of possession may be obtained three days after service of the notice to quit. Appellants argue that appellee was not diligent in filing the unlawful-detainer complaint more than seventy days after issuing the second notice to vacate on February 19, 2002, and they conclude that this lack of diligence requires reversal of the trial court's decision.

Appellants have failed to cite any authority that supports their argument. The statute does not provide a maximum amount of time within which the complaint must be filed or the writ of possession must be obtained after the notice to vacate is served. In determining the meaning of a statute, we consider it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Moore v. Pulaski County Special Sch. Dist., 73 Ark. App. 366, 43 S.W.3d 204 (2001). Although we are not bound by the decision of the trial court, in the absence of a showing that the trial court erred in its interpretation of the law, we will accept that interpretation as correct on appeal. Id. We also affirm on this issue.

The Other Action

Appellants further argue that the circuit court erred in hearing the unlawful-detainer case because another action arising out of the same transaction was pending in another court. Again, we disagree. Arkansas Rule of Civil Procedure 12(b)(8) provides that a party may assert as a defense to a cause of action the "pendency of another action between the same parties arising out of the same transaction or occurrence." Rule 12(b)(8) is a matter of venue and only prohibits identical actions from proceeding between identical parties in two courts of this state. National Bank of Commerce v. Dow Chem. Co., 327 Ark. 504, 938 S.W.2d 847 (1997). It has long been held that, if the objects of the two suits are different, they may proceed at the same time although they are between the same parties and involve the same subject matter. See Wilson v. Sanders, 217 Ark. 326, 230 S.W.2d 19 (1950).

Here, the unlawful-detainer action in circuit court, pursuant to Ark. Code Ann. §§ 18-60-301 through 18-60-312 (1987 and Supp. 2001), had as its object possession of the premises and damages. The other action in district court, based on Ark. Code Ann. § 18-16-101 (Supp. 2001), was criminal in nature. Therefore, there was no reason to dismiss the unlawful-detainer action under Rule 12(b)(8). We affirm on this point as well.

Waiver

Appellants argue that appellee had waived appellants' previous late payments and, therefore, could not enforce the forfeiture provision in the lease. They assert that, as far back as 1998, appellee had accepted tardy payments and that appellee accepted a late payment for the November 2001 rent after it had issued its first notice to vacate. We cannot locate in the abstract or the addendum a specific finding by the court on the issue of waiver. It is well settled that the failure to obtain a ruling from the trial court is a procedural bar to this court's consideration of an issue on appeal. Vereen v. Hargrove, 80 Ark. App. 385, 96 S.W.3d 762 (2003).

Assuming that the trial court did make a ruling on this issue, the usual standard of review will apply. The standard that we apply when reviewing a judgment entered by a circuit court after a bench trial is well established. We will not reverse unless we determine that the circuit court erred as a matter of law or we decide that its findings are clearly against the preponderance of the evidence. Vereen v. Hargrove, supra. We review the evidence in the light most favorable to the appellee, resolving all inferences in the appellee's favor. Id.

When performance of a duty under a contract is contemplated, any nonperformace of that duty is a breach. Vereen v. Hargrove, supra. As a general rule, the failure of one party to perform his contractual obligations releases the other party from his obligations. Id. Forfeitures, however, are not favored in the law, and in order to be enforced, they must be plain and unambiguously provided in the contract. Id. However, when there has been a breach sufficient to cause a forfeiture, and the party entitled thereto, either expressly or by his conduct, waives it, equity will relieve the defaulting party from a forfeiture unless the violation of the contract was the result of gross negligence, or was willful or persistent. Robinson v. Cline, 255 Ark. 571, 501 S.W.2d 244 (1973); Pierce v. Kennedy, 205 Ark. 419, 168 S.W.2d 1115 (1943). Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. Bright v. Gass, 38 Ark. App. 71, 831 S.W.2d 149 (1992). A settled course of accepting late rent payments may be construed as a waiver of the lessor's right to prompt payment; it has been held that a lessor cannot base a forfeiture on a failure to promptly pay rent without first having notified the lessee that thereafter strict conformance to the terms of the lease's payment provision will be expected. See Duncan v. Malcomb, 234 Ark. 146, 351

S.W.2d 419 (1961). Whether a waiver occurred is a question of fact. Bright v. Gass, supra.

Appellants were served with a second notice to vacate on February 19, 2002. Appellee's bookkeeper, Betsy Lee, testified about appellants' subsequent payment history as follows:

A On or about February the 19th, they were served with a notice to vacate for failure to pay rent. After that date, we made several attempts to continue to collect the money, and not to just put the Bledsoes out. It became a decision of the owner and Steve Lackey Company that on March the 21st of 2002, we would make one final demand for payment. At this point in time, the Bledsoes [had] not paid any rent since January the 9th of 2002, which brought them current [through] January, but here we are at March the 21st and they'd not paid February's rent. They'd notpaid February's eviction charges or late charges. They've not paid March rent, March late charges. The eviction is still standing as of February because they've yet to pay February's rent, so it did not have to be reserved for failure to pay March rent.

On the 21st of February - I mean - excuse me, pardon me - on the 21st of March, 2002, I personally posted a notice on the residence at 710 Johnson belonging to - leased to the Bledsoes a demand for payment. That demand required them to pay the balance in full by the - 8:30 on the next morning, or I told them I was going to have to proceed with a criminal matter in the municipal city court which was a citation for failure to vacate.

Q And this was after the notice had been served?

A The notice has long been up. They'd made no attempt to move. The notice gives them ten days to vacate said premises. They'd made no attempt to move, but because the Bledsoes had been there so long and were good - you know, good tenants of Steve Lackey Company we felt like we should give them one more opportunity to remedy the situation before we proceeded with other actions because it's the understanding of Steve Lackey Company that the courts are not to be used as a collection agency. And that if I have to bring the courts into it, then it's looked down upon if we don't proceed.

Q So one last attempt was made and it was not - the Bledsoes are not able to keep their promise or any promises, is that correct, pay their rent?

A Correct.

Q And thereafter, an action was done in the district court, and that was the criminal action, is that correct?

A Correct. It's a citation for failure to vacate.

From Ms. Lee's testimony, it is clear that appellee, after serving the first notice to vacate, put appellants on notice that prompt payment would be necessary and that appellee did not waive the forfeiture provision of the lease. Therefore, we affirm on this point.

Appellee's Responses

Appellants argue that appellee failed to "effectively respond" to appellants' motions for judgment on the pleadings, for summary judgment, to quash writ of garnishment, for restitution, for an extension of time within which to file the record on appeal, and for a stay pending appeal. According to appellants, appellee was required by Arkansas Rules of Civil Procedure 12 and 56 to respond to appellants' motions with more than the following statement: "I deny and I want time to investigate." Appellants sum up their argument by asking this court to grant their motion for summary judgment.

We affirm on this point. First, appellants were given the opportunity to fully develop their defense on the merits at trial and have failed to demonstrate any prejudice resulting from appellee's brief responses to their motions. Error is no longer presumed to be prejudicial; unless the appellant demonstrates prejudice, this court will not reverse. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998). Additionally, we have held many times that the denial of a motion for summary judgment is not appealable, even after there has been a trial on the merits. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000).

Ex Parte Communications

Appellants assert that appellee's attorney and the district judge obstructed justice by engaging in ex parte communications regarding the transfer of the district court case to circuit court. They contend that appellee's counsel should be sanctioned for violating the rules of professional conduct and that similar action should be taken against the district judge under the Code of Judicial Conduct. According to appellants, this ex parte communication requires reversal of the trial court's decision.

We disagree. As already explained, this is a separate action and not a transfer of the district court case. Additionally, this court has no jurisdiction over the discipline of attorneys or judges. See Ark. Sup. Ct. R. 1-2(a)(5) and (6). Even if it did have jurisdiction, appellants have failed to demonstrate any impropriety or obstruction of justice. Canon 3B(7) of the Code of Judicial Conduct provides in pertinent part:

A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:

(a) Where circumstances require, ex parte communication for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized provided:

(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

Clearly, the subject of the purported ex parte communication was administrative in nature and no prejudice was shown. We affirm on this point.

The Motion for Extension

Appellants contend that the trial court erred in denying their motion for an extension of time within which to file the record by partially basing its decision on Ark. R. App. P. 4(b), which deals only with the filing of the notice of appeal and does not address the filing of the record. Appellants are in error. In the order denying the motion for an extension, the trial court noted that there were no motions filed that would require an extension under Ark. R. App. 4(b), which provides for certain circumstances warranting an extension of time to file the notice of appeal. However, the court also made other findings of fact that played a part in its decision. It concluded by stating: "No extension of time to file the transcript is necessary under Rule 5(b) of the Arkansas Rules of Appellate Procedure." Rule 5(b) provides for situations in which the trial court "may" extend the time for filing the record on appeal. Therefore, it is clear that the court considered the proper rule.

The Writ of Garnishment

Appellants further argue that the trial court violated Ark. R. Civ. P. 62 by denying their motion to quash a writ of garnishment issued within ten days of the judgment. They assert that the judgment must be reversed and appellants should be given restitution. The judgment was entered on September 23, 2002, and the writ was filed on September 30, 2002.

Rule 62(a) provides: "Except as otherwise ordered by the court, no execution or enforcement proceedings shall issue on any judgment or decree until after the expiration of ten (10) days from the entry thereof." In their affidavit filed with this court and included in the addendum, appellants state that appellee objected to their motion to quash the writ of garnishment by pointing out that they were served with the writ on October 9, 2002, which was outside the ten-day automatic stay. Because appellants did not file a supersedeas bond until November 15, 2002, they have not demonstrated prejudice in the premature filing of the writ of garnishment. We also affirm on this point.

Affirmed.

Gladwin and Griffen, JJ., agree.