Guy Moon v. Roger D. Hensley, Charles F. Poole, and Fred W. Hensley

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

GUY MOON

APPELLANT

V.

ROGER D. HENSLEY

CHARLES F. POOLE

FRED W. HENSLEY

APPELLEES

CA04-242

November 3, 2004

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[CIV03-60-2]

HON. ROBERT C. VITTITOW,

CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Guy Moon appeals from an order granting appellees' motion for summary judgment and an order granting appellees attorney's fees pursuant to Ark. Code Ann. § 16-22-309 (Repl. 1999). He contends that the trial court erred in awarding attorney's fees and in granting summary judgment. We affirm both the order of summary judgment and the award of attorney's fees.

This appeal involves a sale of property located in Chicot County, Arkansas, from Moon Enterprises, Inc., to appellees, Roger Hensley, Charles Poole, and Fred Hensley. This sale has been the subject of prior litigation before this court. See Moon v. Moon Enter., Inc., 65 Ark. App. 246, 986 S.W.2d 134 (1999). On May 11, 1991, a majority of the stockholders of Moon Enterprises voted to sell the property, and a warranty deed was issued to appellees on August 14, 1991, and was filed in the Chicot County Circuit Clerk's office on September 10, 1991. After the real estate was sold, stockholders voted to dissolve the corporation at a July 17, 1992, meeting. Appellant's proportionate share of the assets was distributed to him upon his surrender of his stock certificate, as well as the share of his mother, Hazel Moon.

Appellant filed a lawsuit in 1993 against Moon Enterprises and some of its officers requesting an accounting of the proceeds of the sale and alleging that the officers breached their fiduciary duty to the shareholders. The case was nonsuited in 1995 and was refiled in 1996. The trial court denied appellant's complaint, and this court affirmed on the basis that appellant failed to comply with the provisions of Ark. Code Ann. § 4-26-904(a) (Repl. 2001), requiring that a shareholder make a written demand to the corporation for payment of the fair market value of his shares of the corporation's stock. See Moon v. Moon Enter., 65 Ark. App. at 247, 986 S.W.2d at 135..

On May, 19, 2003, appellant filed an ejectment petition against appellees, which is the subject of the present appeal. Appellant alleged that the property belonged to him and not to appellees. He further alleged that the property was owned by Moon Enterprises, that he was the "sole surviving linear descendant," and that the deed of appellees resulted from an illegal stockholder sale. Appellant added that his claim was within the statute of limitations because the stockholder sale was concealed by fraud until October 20, 1997. Appellant later filed an amended petition. Appellees filed an answer raising various defenses. On June 6, 2003, appellees also filed a motion for sanctions pursuant to Ark. R. Civ. P. 11, contending that the action filed by appellant was not well grounded in fact and not warranted by the law because appellant had no standing and because the action was barred by res judicata and collateral estoppel. Appellees filed a motion for summary judgment on June 24, 2003,alleging that appellant did not have standing to sue, that the action was barred by res judicata and collateral estoppel, and that the action was barred by the statute of limitations.

A hearing on the motion for summary judgment was held on September 11, 2003. After taking the case under advisement, the trial court entered an order on October 9, 2003, finding that there were no issues of fact concerning standing, issue preclusion, and the statute of limitations. The court held that: (1) appellant was never the title holder of the land at issue and had no standing to sue; (2) the propriety of the sale of the land was litigated and validated in E-96-14-2, and the trial court's decision was affirmed by the Arkansas Court of Appeals; (3) the sale took place on September 10, 1991, and any cause of action appellant may have had accrued on that date and was barred by the seven-year statute of limitations. The order reserved a ruling on the appellees' motion for sanctions. Appellant filed a notice of appeal on November 7, 2003.

On November 18, 2003, the trial court held a hearing on appellees' motion for sanctions. At the conclusion of the hearing, the court found that there was a complete absence of any issue of law or fact in the action filed by appellant. The trial court entered an order on December 4, 2003, awarding attorney's fees in the amount of $3000 to appellees pursuant to Ark. Code Ann. § 16-22-309, rather than sanctioning appellant pursuant to Ark. R. Civ. P. 11. Appellant filed a timely notice of appeal on December 23, 2004, incorporating appellant's first notice of appeal, which appealed the order of summary judgment. Therefore, both orders are properly before us on appeal.

Before addressing appellant's points of appeal, we must mention that the three paragraph argument presented by appellant failed to cite any authority in support of his argument. It has been repeatedly held that the appellate court will not consider arguments unsupported by convincing argument or sufficient citation to legal authority. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., ___ Ark. ___, ___ S.W.3d ___ (March 25, 2004). This alone is sufficient reason not to address appellant's points of appeal. Id. In addition, appellant's abstract, addendum, and statement of the case are deficient and do not comply with the requirements of Rule 4-2 of the Rules of the Supreme Court and Court of Appeals. Pro se appellants are held to the same standard as those represented by counsel. See, e.g., Moon v. Holloway, 353 Ark. 520, 110 S.W.3d 250 (2003). Rather than ordering rebriefing pursuant to Rule 4-2(b)(3), we instead reach the merits because appellees have provided a supplemental abstract, and we may go to the record to affirm.

We first address appellant's second point of appeal,1 which we interpret to be a challenge to the trial court's order of summary judgment. Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Hall v. Summit Contractors, Inc.,___ Ark. ___, 390 S.W.2d 125 (2004). The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Id.

The trial court, finding that no genuine issues of material fact remained, granted summary judgment on the following grounds: (1) appellant was never a title holder of the lands and had no standing to sue; (2) the issue of the propriety of the sale had been previously litigated and appealed and was barred by res judicata and collateral estoppel; (3) the action was barred by the statute of limitations as the sale of the land took place in 1991. We agree that no issues of fact remained and that appellees were entitled to judgment as a matter of law on all three grounds.

First, appellant had no standing to sue because he was never a title holder to the property. Appellant's own complaint alleged that the "property which is the res of this controversy was lawfully owned by Moon Enterprises, Inc. to which Guy Moon is the sole surviving linear descendant. No valid instrument stands between Moon Enterprises, Inc. and Guy Moon." Thus, he acknowledges that the owner of the land was Moon Enterprises, Inc. The undisputed facts established that the corporation sold the land and dissolved the corporation. Appellant never held title to the land according to the affidavit of Davis Gillison, Jr., which was attached in support of appellees' motion for summary judgment. Although not mentioned in his complaint or in his response to the motion for summary judgment, appellant asserts on appeal that a quitclaim deed of the property to him from his mother establishes a justiciable controversy and that the trial court erred in not allowing him to introduce the deed. This deed, however, was not part of the summary judgment proceedings, but was included in this record only as part of the record in Moon v. Holloway. Although appellant makes no citation to the record to establish when the trial court refused to allow him to introduce the deed, it appears as though it was during the hearing on the motion for sanctions, not the motion for summary judgment.

Second, we hold that the trial court correctly granted summary judgment on the basis that appellant's complaint was barred by res judicata and collateral estoppel. Under the claim-preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003). When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Id. Res judicata is based upon the assumption that a litigant has already had his day in court. Id.

In his complaint, appellant alleged that the warranty deed held by appellees was void because it was based on an illegal stockholder sale. In Moon v. Moon Enter., 65 Ark. App. at 250-51, 986 S.W.2d at 136, we did not address appellant's assertion of the illegality of the stockholder meeting in which the stockholders voted to sell the property because appellant failed to obtain a ruling on the issue below, and thus it was not preserved on appeal. Therefore, appellant has had his day in court regarding the legality of the shareholder's meeting that resulted in the sale of the property.

Finally, summary judgment was also proper because appellant's claim was barred by the statute of limitations. Although appellant alleged in his complaint that his claim was within the statute of limitations because the stockholder sale was concealed by fraud until October 20, 1997, the uncontroverted facts established that appellant was aware of the sale in 1991 and received proceeds from the sale in 1992. In addition, appellant filed a lawsuit against the corporation in 1993 challenging the sale. In response to the statute of limitations argument raised in appellees' motion for summary judgment, appellant merely stated in his affidavit that Bill Holloway (his attorney in the first lawsuit) committed fraud by concealing facts until April, 5, 1999. Appellant failed to "meet proof with proof" in order to establish that the action was not barred by the statute of limitations on account of fraud, as he alleged in his complaint. Because appellant was aware of the sale no later than 1993, the seven-year statute of limitations, provided in Ark. Code Ann. § 18-61-101 (1987) for the recovery of land was barred by the time appellant filed his complaint in 2003.

For his remaining point of appeal, appellant contends that the trial court erred in awarding appellees attorney's fees pursuant to Ark. Code Ann. § 16-22-309. This section provides that the trial court may award attorney's fees in any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party. The statute further provides that on appeal, the question as to whether there was a complete absence of a justiciable issue shall be determined de novo on the record of the trial court alone. We do not reverse the trial court's finding, however, unless it is clearly erroneous.2 Cureton v. Frierson, 41 Ark. App. 196, 850 S.W.2d 38 (1993) (citing Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989)).

The sale of the property involved in the present lawsuit took place in 1991. Appellant was a minority shareholder in the corporation that sold the property, and he sued the corporation over the sale and lost. See Moon v. Moon Enter., 65 Ark. App. at 246, 986 S.W.2d at 134. He has now attempted to once again challenge the sale that occurred over twelve years ago. As discussed above, appellant lacked standing to sue and his claim was barred by both res judicata and the statute of limitations. Based on the prior litigation and the history of the case, appellant knew or should have known that the ejectment petition he filed completely lacked a justiciable issue of either law or fact. Therefore, we cannot say that the trial court's decision to award attorney's fees pursuant to Ark. Code Ann. § 16-22-309 is clearly erroneous.3

Affirmed.

Gladwin and Robbins, JJ., agree.

1 "Before this court can reach the question of whether the trial court abused [its] discretion in awarding sanctions to the defendants' [sic] attorney, this court shall determine that the court below was deprived of subject matter jurisdiction for reasons that counsel for the defendants failed to meet his burden of proof and the court deprived Guy Moon of the substantive due process right to present argument based on the well grounded facts of record that Guy Moon not only lodged a justiciable controversy, Guy Moon was entitled to judgement was a matter of law - not the other way around."

2 There is also case law indicating that the standard of review is abuse of discretion. See, e.g., Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998).

3 We note that appellees filed a motion for sanctions concerning appellant's motions to set aside the judgment. We denied both motions to set aside the judgment, and in light of the affirmance of the attorney's fees in the trial court, we deny appellees' motion for sanctions.