Arkansas

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Wonderland Cave & Club v. Tara Hughes,
CA 99-251 (Ark.App. 12/08/1999)

No. CA 99-251

COURT OF APPEALS OF ARKANSAS, DIVISION TWO

December 8, 1999, Opinion Delivered

NOTICE: [*1]

NOT DESIGNATED FOR PUBLICATION. PLEASE REFER TO THE ARKANSAS RULES OF COURT.

PRIOR HISTORY: APPEAL FROM THE PULASKI COUNTY CHANCERY COURT, SECOND DIVISION NO. CV 95-1519. HONORABLE VANN SMITH, CHANCERY JUDGE.

DISPOSITION: AFFIRMED.

COUNSEL: For the Appellant: Stephen Ewing Morley.

For the Appellee: Robert David Lewis.

JUDGES: TERRY CRABTREE, Judge. BIRD and GRIFFEN, JJ., agree.

OPINIONBY: TERRY CRABTREE

OPINION: TERRY CRABTREE, Judge

Wonderland Cave & Club, Inc., appeals from the circuit court claiming they erred by denying appellant's motion to dismiss the appellee's third amended complaint. The Pulaski County Circuit Court found the third amended complaint to be a new lawsuit and transferred it to chancery court. The appellant, Wonderland Cave and Club Inc., appeals the decision based on its claim that the new cause of action brought in the third amended complaint could have been raised earlier and is therefore barred by the doctrine of res judicata. We find that after the transfer to chancery court, the appellant did not obtain a ruling on the motion to dismiss, which bars our consideration of this appeal. Therefore, we affirm.

Some ten plaintiffs sued three corporations that owned and operated [*2] the Midnight Rodeo nightclub for injuries received at the hands of bouncers employed at the nightclub. Eventually, several of these plaintiffs received judgments. When they attempted to satisfy these judgment with property located on what was the premises of the Midnight Rodeo nightclub, they discovered that the Midnight Rodeo was no longer in business and that two new nightclubs, both operated by the appellant, were in its place. Also, a security interest in all property owned by the corporations that had owned and operated the Midnight Rodeo had been given to another corporation.

Alleging a fraudulent transfer, the plaintiffs filed a pleading entitled, Third Amended Complaint, which alleged a new cause of action, fraudulent transfer of assets, and named three new parties, the appellant among them. The appellant moved to dismiss the cause of action for fraudulent conveyance arguing the new cause of action brought in the third amended complaint could have been raised earlier and is therefore barred by the doctrine of res judicata. The circuit court found that the third amended complaint was filed after judgment was entered on the second amended complaint and therefore the plaintiffs [*3] were barred from amending their complaint. See e.g. Moore v. Moore, 21 Ark. App. 165, 731 S.W.2d 215 (1987). The circuit court found the third amended complaint was in essence a new lawsuit alleging fraudulent conveyance between the original and new defendants in violation of Ark. Code Ann. § 4-59-204 (Repl. 1996). Because the requested relief in a fraudulent conveyance action is to rescind the transfer of property, such claims are brought in a court of equity. The circuit court then ordered the transfer to chancery court.

The appellant did not abstract, and we cannot find in the record, the chancellor's ruling on this motion to dismiss. The burden is on the appellant to obtain a ruling. Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). The appellant's argument has no merit inasmuch as it failed to obtain a ruling on its motion to dismiss. Objections and questions left unresolved are waived and may not be relied upon on appeal. Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990). [*4]

Affirmed.

BIRD and GRIFFEN, JJ., agree.

The legal opinions are a matter of public record (that's how we got them), and as such there can be no defamation for republishing them. Sometimes, however, legal opinions are reversed, vacated, or significantly modified, etc., and we do not discover this fact until somebody points it out to us. As we do not desire to publish inaccurate or outdated information, if a legal opinion has been reversed, vacated, or significantly modified, please advise us of this fact immediately, by fax to (877) 698-0678 or you may also send regular postal correspondence to Riser Adkisson LLP at 1827 Powers Ferry Road, Building One, Suite 200, Atlanta GA 30339.