Elizabeth Frawley v. Stanley and Sue Wood, and Laland and Georgia Booth
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
D.P. MARSHALL JR., Judge
DIVISION IV
CA0721
31 October 2007
ELIZABETH FRAWLEY, AN APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT
v. [CIV 20051102]
STANLEY and SUE WOOD,
and
LALAND and GEORGIA BOOTH,
APPELLEES
THE HONORABLE JAMES ROBERT
MARSCHEWSKI, CIRCUIT JUDGE
AFFIRMED
Elizabeth Frawley sued Stanley and Sue Wood to recover an alleged $50,000.00
debt by foreclosing a mortgage. After Frawley presented her case at trial, the circuit
court granted the Woods’ motion to dismiss the lawsuit. Frawley appeals the dismissal
and argues that the circuit court erred in considering inadmissible parol evidence.
I.
In February 2004, Frawley made a contract with the Woods to establish a bail
bond company. The contract consisted of several documents executed over a twoday
period. Frawley loaned the Woods $50,000.00. In a “Promissory Note, Security
Agreement,” the parties agreed that the Woods would use Frawley’s $50,000.00, along
with $50,000.00 of their own money, to open “Liz and Stan Bail Bonds, Inc.” All this
money was for a Staterequired bond in the form of a certificate of deposit. They
agreed that, once the company opened and received its State license, Frawley’s
$50,000.00 loan would be transformed into a 50% ownership interest in the
corporation. The Woods also gave Frawley a mortgage on their home and signed a
promissory note attached to that mortgage. In a third contemporaneous document, the
parties agreed that Frawley would release her mortgage once two things happened:
when she showed half ownership in the corporation at the State Licensing Board, and
her name was added to the Staterequired $100,000.00 CD.
Liz and Stan’s Bail Bonds opened as planned and operated for about one year.
Then it went out of business and the State took the bond.
Frawley sued the Woods, seeking to foreclose the mortgage and collect on the
promissory note. Frawley wanted to recover the $50,000.00, plus interest on the loan.
Frawley also sued Laland and Georgia Booth. She alleged that the Booths were
necessary parties to the action because they held a first mortgage on the Woods’ home.
The Booths filed a crossclaim against the Woods, seeking one thing: indemnification
if the circuit court found them liable to Frawley. After Frawley presented her case at
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trial, the circuit court granted the Woods’ motion to dismiss. Here is the exchange:
[Woods’ Attorney]: Your Honor, before we put on testimony, I
would move to dismiss on grounds that the Plaintiffs have not made their
case.
The Court: Granted. I believe that Ms. Frawley had her interest in
the company. She got 50% interest in Liz and Stan, Inc., she got a 50%
stock certificate, she operated the business, she knew that’s what she got.
I think she made a commitment that this property that was security for this
initial $50,000[.00] would be returned after the business was
incorporated, and she didn’t do it.
II.
Frawley first argues that the circuit court erred because she made a prima facie
case on her claim, Swink v. Giffin, 333 Ark. 400, 402, 970 S.W.2d 207, 208 (1998),
and because the Woods’ motion to dismiss was not specific. Viewing the evidence in
the light most favorable to Frawley on the merits, we see no error. Woodall v. Chuck
Dory Auto Sales, Inc., 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001).
Frawley contended that she held a mortgage and promissory note signed by the
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The dismissal order did not mention the Booths’ crossclaim against the
Woods. Because the Booths’ claim was solely for indemnification, and was
therefore completely dependent on their alleged liability to Frawley, we see no
jurisdictional problem. It is clear to us that the dismissal of Frawley’s claim, after it
was fully litigated, resolved all the claims among all the parties because the Booths
now have no basis for indemnification. McKibben v. Mullis, 79 Ark. App. 382,
384–85, 90 S.W.3d 442, 444–45 (2002). Therefore, the dismissal order entered by
the circuit court was a final order. Ibid.
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Woods and that the Woods failed to make payments. We agree that the Woods did not
repay the note with cash, but that was not the parties’ deal. Frawley testified herself
out of court by admitting facts that showed the Woods fulfilled the parties’ agreement,
and thus Frawley had no case. Cf. Early v. Bankers Life and Casualty Co., 959 F.2d
75, 79 (7th Cir. 1992).
On crossexamination, Frawley agreed that she was “going to be a creditor
unless [Liz and Stan Bail Bonds, Inc.] got open, at which point [her] interest would
then convert to a 50% interest in the company . . .[.]” Frawley admitted that the
company opened its doors and operated for about a year. She admitted that she
received her 50% ownership interest in the corporation. Frawley also testified that Stan
approached her about releasing the mortgage after the business opened. But she never
went to the Licensing Board to tell them that she owned half the corporation. Frawley
testified that she could not tell the Board about her ownership interest in Liz and Stan
Bail Bonds because her bailbond license had been revoked.
The circuit court dismissed the case based on Frawley’s admissions. The court
did not, as Frawley asserts, weigh credibility at the motiontodismiss stage. Cf. Rymor
Builders, Inc. v. Tanglewood Plumbing Co., Inc., __ Ark. App. __, __, __ S.W.3d __,
__ (October 10, 2007). The court was entitled to take Frawley at her word and correct
to dismiss her case. She testified unequivocally that she got the benefit of the
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bargain—a 50% ownership interest in the corporation that eventually failed.
Frawley next challenges, as a procedural matter, the Woods’ nonspecific motion
to dismiss. While we agree that the motion was not specific, we hold that no reversible
error occurred. As we read the transcript, the circuit court may well have interrupted
the Woods’ lawyer as he was moving to dismiss. In any event, the circuit court
explained in detail its reasons for granting the motion.
The specificgrounds rule insures that the particular ground asserted for a
dismissal or a directed verdict is brought to everyone’s attention. Ouachita Wilderness
Institute, Inc. v. Mergen, 329 Ark. 405, 413–14, 947 S.W.2d 780, 784–85 (1997).
Then the other party can respond, the circuit court can rule, and a complete record will
be made for appellate review. Here the court’s specific, though quick, ruling eliminated
any ambiguity about the reason for its decision. Frawley had an opportunity to
respond, albeit belatedly. She was present for the Woods’ motion and the circuit
court’s bench ruling. She could have, but did not, argue against it. Nor did she object
at that point to the lack of specificity in the Woods’ motion. Had she done so, the
Woods could have fleshed out their arguments. Frawley therefore waived the no
specificity error that she now asserts. Pearrow v. Feagin, 300 Ark. 274, 278, 778
S.W.2d 941, 943 (1989).
III.
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Frawley also claims that the circuit court erred by considering parol evidence at
trial. When the parties make a clear and integrated contract in writing, the socalled
parolevidence rule requires the exclusion of prior or contemporaneous oral
agreements, or prior written agreements, to vary or contradict the terms of the parties’
contract. Faver v. Faver, 266 Ark. 262, 267, 583 S.W.2d 44, 46 (1979); WILLISTON
ON CONTRACTS § 33.1 (4th Ed. 1999). The essence of this substantive rule of law is in
the parties’ integration of their contract. All antecedent proposals and negotiations are
merged into the written contract, and that contract cannot be varied by extrinsic
evidence, whether written or oral. Brown v. Aquilino, 271 Ark. 273, 275, 608 S.W.2d
35, 36 (Ark. App. 1980). In this case, Frawley did not contend that the parties made
no contract or that they modified their contract later.
Extrinsic documents may be snagged by the rule in some circumstances, e.g.,
Lower v. Hickman, 80 Ark. 505, 509–10, 97 S.W. 681, 681–82 (1906), but the
documents to which Frawley objected were not. The circuit court correctly refused to
exclude a complaint from the Pulaski County circuit court where Frawley had pleaded
that she owned 50% of Liz and Stan Bail Bonds, Inc. This document did not offend the
rule because it was created after the parties made their agreement. Faver, 266 Ark. at
267, 583 S.W.2d at 46. The complaint was another admission by Frawley. Further,
the “Promissory Note, Security Agreement” that Frawley also argued was parol
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evidence was actually part of the same contract as the combined mortgage/note on
which Frawley sued the Woods. The parties made their agreement in multiple
documents. And the circuit court had to consider all of the documents together as one
contract. Integon Life Ins. Co. v. Vandegrift, 11 Ark. App. 270, 276, 669 S.W.2d 492,
495 (1984). The court therefore properly admitted the rest of the parties’ contract into
evidence.
Likewise, the circuit court did not err by admitting testimony over Frawley’s
parolevidence objections. First, the court correctly overruled Frawley’s objection to
a question about her occupation; Frawley’s occupation is not parol evidence about the
parties’ contract. The court also did not err in admitting what was by then cumulative
testimony about the parties’ agreement. On crossexamination and on the court’s own
examination, Frawley acknowledged the circumstances surrounding her entire
agreement with the Woods. It is a close call whether this was parol evidence. Cf. First
National Bank of Crossett v. Griffin, 310 Ark. 164, 168–72, 832 S.W.2d 816, 818–20
(1992). But in this case the point does not matter. Frawley did not object to this
testimony when it was first given. We therefore see no prejudice in the court refusing
to exclude later cumulative testimony about those same circumstances.
Affirmed.
BAKER and MILLER, JJ., agree.
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