Beckworth v. Diamante

• Decision Date: 08 December 2010
• Docket Number: No. CA 10–126.,CA 10–126.
• Citation: 2010 Ark. App. 814,379 S.W.3d 752
• Parties: Sandra Forde BECKWORTH, Appellant v. DIAMANTE, a PRIVATE MEMBERSHIP GOLF CLUB, LLC, and Cooper Land Development, Inc., Appellees.
• Court: Arkansas Court of Appeals

2010 Ark. App. 814

379 S.W.3d 752

Sandra Forde BECKWORTH, Appellant

v.DIAMANTE, a PRIVATE MEMBERSHIP GOLF CLUB, LLC, and Cooper Land Development, Inc., Appellees.

No. CA 10–126.

Court of Appeals of Arkansas.

Dec. 8, 2010.

James A. Armogida, Andrea Lea Davis, Andi Davis Law Firm, Hot Springs, for appellant.

Bryan Jay Reis, Philip B. Montgomery, The Farrar Firm, Hot Springs, for appellees.

ROBERT J. GLADWIN, Judge.

[Ark. App. 1]Appellant Sandra Forde Beckworth brings this appeal from the order of the Saline County Circuit Court granting summary judgment to appellees Diamante, A Private Membership Golf Club, LLC (Diamante or the club), and Cooper Land Development, Inc. (Cooper), on the basis that the statute of limitations barred her claim. Appellees cross-appeal from the circuit court's denial of their motion for attorney's fees. We affirm on direct appeal and on cross-appeal.

Diamante is a private golf course and club that was developed as part of a subdivision located in Hot Springs Village, Saline County, Arkansas. Cooper is successor in interest to the developer. The subdivision was subject to certain recorded covenants and restrictions relating to membership in the club known as the “Supplemental Declaration.” Every owner of [Ark. App. 2]property in the subdivision is entitled to a full golf membership in the club, with the membership subject to the provisions of the Supplemental Declaration and the Articles, By–Laws, and rules and regulations of the club. The Articles, By–Laws, and rules and regulations provide that they may be amended by the club in its sole discretion. The property owner is required to pay the monthly dues associated with a full golf membership, and the amount of the dues is determined solely by the club. The Supplemental Declaration also provides that the monthly dues shall commence as to each lot on a date fixed by the club. The club is entitled to a lien on the property for unpaid monthly dues. Upon any sale of the property after the initial sale from the developer, the club is entitled to collect a transfer fee, the amount of which is in the sole discretion of the club.

Appellant and her now-deceased husband purchased their lot in the subdivision in July 1995. They executed an “Addendum to the Contract for Sale of Real Estate” that discusses membership in the club. They were required to pay an “Initiation Deposit” of $10,000, which was included in the purchase price of their property and was to be refundable after thirty years. The monthly dues were $225 at that time, and the transfer fee was $5,000. Appellant and her husband also executed a “Notice to Purchasers” that, among other things, stated that the developer had no program to assist in the sale of lots unless they were lakefront or golf-front lots and that the developer was not obligated to buy the lot back, rent it, or assist in selling the lot. Moreover, the sales representative was stated to be independent and not an employee of the developer and had no authority to bind the developer to anything not set [Ark. App. 3]forth in the contract documents. Appellant also signed a receipt in which her right to rescind the transaction was acknowledged and a certification by the agent that no representations were made contrary to those contained in the property report.

On October 8, 2008, appellant wrote a letter to the club in which she explained that her husband had died in 2004 and asked that she be relieved from paying the monthly dues and, if she sold her property, the transfer fee. The letter also asserted that there had been representations made at the time of appellant's purchase that the club would remain a “private club” exclusively for homeowners in the subdivision and that the club had changed the rules solely for the benefit of the club and the developer. Appellant contended that this resulted in a breach of the covenants and restrictions.

On October 30, 2008, appellant filed her complaint, alleging that, prior to the purchase of her property, she and her husband received assurances that, in the event of her husband's death, the obligation to pay dues would be assigned to another party and appellant would not be saddled with that obligation. She further alleged that without this assurance, she would not have purchased the property. The complaint alleged that both Cooper and the club were in breach of the Supplemental Declaration in that they had sold over ninety lots without collecting the monthly dues from those owners.¹ Appellant asserted that the appellees should [Ark. App. 4]not be able to enforce the provisions for payment of the monthly dues and the transfer fee against her. She also sought damages and her attorney's fees and costs.

On December 22, 2008, appellant filed her First Amended Complaint. The allegations in the amended complaint were similar to those set forth in the original complaint. Appellant also alleged that she had only recently received a copy of the Supplemental Declaration and had attempted unsuccessfully to resign her golf membership.²

Appellees filed separate answers to appellant's complaint, denying the material allegations. The answers asserted various affirmative defenses such as waiver, estoppel, laches, and the statute of limitations, and that the complaint failed to state facts upon which relief could be granted. The answers also sought attorney's fees and costs pursuant to Arkansas Code Annotated section 16–22–308 (Repl.1999).

On July 9, 2009, appellees filed their joint motion for summary judgment as to appellant's first amended complaint. They asserted that they were entitled to summary judgment because appellant's claim was barred by the statute of limitations. Appellant responded with a motion to strike or, alternatively, require appellees to clarify the facts each appellee relied upon in moving for summary judgment because, according to appellant, the claims against each appellee were different. Appellant also responded to the merits of the [Ark. App. 5]motion by asserting that the sale of the deferred lots was a continuing breach so that the statute of limitations did not begin to run until the practice terminated in 2004.

On July 20, 2009, appellant filed her Second Amended Complaint, a Motion for Class Certification, and a memorandum in support of the motion. The Second Amended Complaint sought to have the case certified as a class action suit. The allegations of the Second Amended Complaint contained the same allegations and causes of action as the earlier complaints with the exception that appellant was no longer asserting the misrepresentation claim. The Second Amended Complaint sought a declaratory judgment that the provisions relating to the monthly dues, transfer fees, and assignments of the memberships contained in the Supplemental Declaration were unenforceable and void and that Cooper had breached the Supplemental Declaration and caused the value of appellant's property to be diminished.

Following a hearing on appellees' motion for summary judgment at which appellant objected on the basis that the operative complaint was her Second Amended Complaint containing class allegations, the circuit court issued a letter opinion on September 3, 2009, granting appellees' motion. The court first noted that, although it had doubts, it assumed that the Supplemental Declaration constituted a contract. The court found that the statute of limitations on appellant's unconscionability claim began to run at the time of appellant's purchase of the property in 1995 because the Supplemental Declaration was unconscionable, if at all, at the time of appellant's purchase. The court further found that appellant's claim for misrepresentation of the club-dues addendum sounded in fraud and was barred by the statute [Ark. App. 6]of limitations. Turning to appellant's breach-of-contract claim based on the sale of the deferred lots, the court found that the five-year statute of limitations began to run with the sale of the first deferred lot. The court concluded that appellant's claim was barred because she filed her complaint more than five years after the first sale of a deferred lot. The court's order memorializing its ruling on the motion was entered on September 23, 2009. This appeal followed.

We recently set forth the following standard of review with regard to motions for 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. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial court's efficiency arsenal. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Moreover, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence.

Culhane v. Oxford Ridge, LLC, 2009 Ark. App. 734, at 3–4, 362 S.W.3d 325, 327 (quoting Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 231 S.W.3d 720 (2006)).

[Ark. App. 7]In this appeal, appel...