GUNTER. v LIBERTY BANK ARK Apr] Cite as 0 2 Ark App 163 (2005) 163 Jack FL GUNTER and Priscilla Gunter v LIBERTY BANK of Arkansas and Roger Wilkinson CA 04-1344 211 S.W3d 579 Court of Appeals of Arkansas Opinion delivered August 31, 2005 CIVIL PROCEDURE — UNTIMELY ANSWER — COMMON DEFENSE DOCTRINE — Under the "common defense doctrine. - the test for determining if an answer will inure to a co-defendant's benefit is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, where a bank sought foreclosure against several defendants, the trial court properly struck those portions of a defaulting defendant's untimely answer that were not common to those raised by another defendant whose answer was timely, where the timely answer offered no defense that would preclude foreclosure (such as inequitable conduct, statute of limitations. misrepresentation, or payment) and both defendants asserted the priority of their hens on the property. 2 CIVIL PROCEDURE — GENERAL DENIAL — NEW MATTERS MUST BE SPECIALLY PLEADED — A general denial covers defenses that go to
GUN ICR v LIBERTY BANK 164 Cite as 92 Ark App 163 (2005) [92 destroy the plaintiff's cause of action, but nor those defenses that are grounded on new matters, matters in avoidance, or other defenses, which must be specially pleaded; although, in its timely answer, one defendant denied the paragraph of the complaint asserting the supe-nority of the bank's mortgage to that of the defaulting defendant, it did so in general terms on the basis oflack of knowledge, because the defaulting defendant's claim of her own lien's priority was a new matter in the nature of a plea in avoidance, which operated not as a discharge as to all of the defendants, but instead to her personal discharge, the trial court did not err in refusing to allow her to raise this matter for the first time in her untimely answer, Appeal from Poinsett Circu t Court; John Nelson Fogleman, Judge; affirmed Lyons, Emerson & Cone, P.L. C., by. Scott Emerson, for appellant Pnscilla Gunter, Collier & Jennings, by- Larry R Jennings, for appellee Liberty Bank of Arkansas Daggett, Donovan, Perry & Floivers, P:LL.C., by! Robert J Donovan, for appellee Roger Wilkinson. OHN MAU in' PITTMAN, Chief Judge. Jack and Priscilla J Gunter' were among several defendants to a foreclosure suit filed by the appellee bank's predecessor, Other defendants filed timely answers but the Gunters failed to do so and instead filed their answer after the expiration of the time allowed: Priscilla Gunter now appeals from an adverse judgment entered after the trial court granted a motion to stnke as untimely those portions of their answer that were not common to those raised by the other defendants who had filed timely answers, arguing that the tnal court erred in failing to correctly apply the common-defense doctrine: We affirm: Midsouth Bank (the predecessor of appellee Liberty Bank) filed a complaint naming numerous defendants, including Gunter Elevator, Inc:, Jack and Priscilla Gunter, and Wilkinson Farms. In its complaint the bank sought foreclosure of a mortgage given by Gunter Elevator, Inc:, and Jay Gunter to secure payment of a note: ' jack Uunter Is now deceased
GUNTER V: LIBERTY BANK ARK APB] Cite as 0 2 Ark App 163 (2005) 165 The bank alleged that the note was in default, that demand had been made, and that the note had not been paid. Noting that Jack and Priscilla Gunter might claim some interest in the property by virtue of a mortgage executed to them by Gunter Elevator, Inc., on April 4, 2000, the bank stated that its mortgage lien should be declared a first mortgage lien on the lands described in the mortgage, and that any lien of Jack and Priscilla Gunter was inferior and subordinate to its own mortgage: Similarly, the bank noted the existence of a judgment against Gunter Elevator, Inc., filed September 24, 2001, in favor of Wilkinson Farms and related individuals, and asserted that this judgment lien was inferior and subordinate to its mortgage: Wilkinson Farms filed a timely answer, denying most of the allegations in the complaint for lack of knowledge, but asserting that a writ of execution on its judgment hen had been issued, and that its judgment lien was a first hen on the rent proceeds of the property: Jack and Priscilla Gunter filed an admittedly untimely answer in which they argued that, pursuant to the "common defense doctrine," they should be allowed to argue that Mid-south's mortgage and Wilkinson Farm's judgment lien were infe-nor to their own mortgage. The trial court disagreed: Although it did not strike the answer in its entirety and ruled that the Gunters could raise an y defenses they had in common with the other defendants who filed a timely answer, it did not permit them to argue the superiority of their own lien. This appeal followed [1] Arkansas recognizes the "common-defense doctrine." This principle first appears in Arkansas law in Bruton v Gregory, 8 Ark. 177 (1847), where Chief Justice Johnson wrote that= It is perfectly manifest that the interlocutory judgment, which is authorized to be taken against such as make default, is required to stand and to abide the result of any defense to the merits, that those, who appear in the action, may see fit to interpose. If two are sued Jointly, one of whom makes default, and the other appears and interposes a successful defense to the action, there can be no doubt but that the plea of the one appearing, will enure to the benefit of the other, and that he will also be entitled to his discharge, notwithstanding the interlocutory judgment by default. Ict at 180: In modern practice, the test for determining if an answer will inure to a co-defendant's benefit is whether the answer of the non defaulting defendant states a defense that is common tn both
(JIJNILR V LIBLIC BANK 166 Cite as 92 Ark App 163 (2005) [92 defendants, because then "a successful plea operates as a discharge to all the defendants, but ir is otherwise where the plea goes to the personal discharge of the parry interposing it." Richardson v Rodgers, 334 Ark: 606, 612, 976 S:W.2d 941, 944-45 (1998) (quoting South-land Mobile Home Corp. v. Winders, 202 Ark. 693, 694, 561 S.W.2d 280, 280-81 (1978)): [2] Under this test, Wilkinson Farms' answer does not inure to appellant's benefit because, unlike the defense otTered by the co-defendant in Southland Mobile Home Cotp v Winders, supra, it did not go to the existence of appellee's cause of action nor assert a defense common to both defendants The cause of action in this case was foreclosure of a mortgage based on a default on a debt secured by that mortgage. Wilkinson Farms offered no defense that would preclude foreclosure in this case, such as inequitable conduct (Tucker v. Pulaski Federal Savings & Loan, 252 Ark: 849, 481 S,W,2d 725 (1972)), statute of limitations (Davidson v. Hartsfield, 250 Ark, 1072, 468 S.W 2d 774 (1971)), misrepresentation (Wil-liams v. Brown, 240 Ark 974, 403 S W.2d 89 (1966)), or payment (Houston v, Carson, 219 Ark 665, 244 S.W.2d 151 (1951)). Furthermore, Wilkinson Farms disputed the pnority of appellee's mortgage on the grounds that its own judgment lien was superior: Quite clearly, this defense was not common to both Wilkinson Farms and appellant Finally, to the extent that Wilkinson Farms denied the paragraph of the complaint asserting the superiority of appellee's mortgage to that of appellant, it did so in general terms on the basis oflack of knowledge. A general denial covers defenses which go to destroy the plaintiff's cause of action, but not those defenses which are grounded on new matters or matters in avoidance, or other defenses These must be specially pleaded: Chiles v: Mann & Mann, 240 Ark 527, 400 S:W:2d 667 (1966): Here, appellant's claim of the priority of her own lien is a new matter in the nature of a plea in avoidance, operating not as a discharge to all the defendants but instead to the personal discharge of the appellant, and we cannot say that the trial judge erred in refusing to allow this matter to be raised for the first time in her untimely answer Affirmed ROBBINS and VAUGHT, B., agree,
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