Cite as 2022 Ark. App. 362
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-19-766
| john brunner and carolyn brunner APPELLANTS V. diamante members club, inc.; and diamante, a private membership golf club, llc appellees |
Opinion Delivered September 28, 2022 APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63cv-18-790] HONORABLE GRISHAM PHILLIPS, JUDGE AFFIRMED
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ROBERT J. GLADWIN, Judge
This is a companion case to Faigin v. Diamante Members Club, Inc., 2022 Ark. App. 361, also handed down today. The background facts and procedural history are set out in that opinion. Only facts specific to appellants will be detailed below. Appellants, John Brunner and Carolyn Brunner (collectively “appellants”), own property within the Diamante subdivision located in Hot Springs Village, Arkansas. The appellees, Diamante, A Private Membership Golf Club, LLC; and Diamante Members Club, Inc. (collectively “appellees”), respectively, are the former and current owners of a private golf club associated with the developed subdivision.
In this appeal, appellants argue the same points on appeal as the appellants in Faigin. As detailed in Faigin, res judicata precludes appellants’ claims; thus, we affirm the circuit court’s application of the doctrine and grant of summary judgment to appellee.
I. Background Facts
Appellants purchased a lot in the Diamante subdivision on August 8, 1994. In 2014, appellants ceased paying their monthly club dues, and Diamante, A Private Membership Golf Club, LLC (“Old Club”), filed a lien for unpaid monthly dues on the property. Appellee Diamante Members Club, Inc. (“New Club”), filed a complaint to foreclose the lien on May 30, 2018. Appellants responded by filing a motion to dismiss based on a pending declaratory judgment in Garland County, Arkansas. The circuit court denied appellants’ motion and held that jurisdiction for New Club’s foreclosure action was in Saline County, not Garland County.
On May 31, 2019, the circuit court entered a final judgment and decree of foreclosure granting summary judgment to New Club on the basis of res judicata. The court awarded attorney’s fees to New Club on July 19, 2019, and the appellants filed timely notices of appeal.
II. Discussion
The circuit court concluded that appellants were attempting to relitigate claims that had previously been decided, or could have been decided, in Dye v. Diamante, a Private Membership Golf Club, LLC, 2017 Ark. 42, 510 S.W.3d 759, and applied the doctrine of res judicata. For the reasons set forth in Faigin, 2022 Ark. App. 361 , and incorporated herein by reference, we hold that the circuit court properly applied res judicata in granting New Club’s motion for summary judgment.
Additionally, appellants contend on appeal they were not parties in Dye, and that, furthermore, there is no proof that they were given notice of the class action or an opportunity to opt out. The circuit court expressly held that appellants did not opt out of the plaintiff class in Dye; nevertheless, no ruling was made regarding notice of suit to property owners, and we will not consider arguments raised for the first time on appeal. See Seidenstricker Farms v. Doss, 374 Ark. 123, 286 S.W.3d 142 (2008). We do note that appellants’ argument regarding their status as a non-party in Dye is contrary to what Mr. Brunner attested to before the circuit court wherein he stated that he was “one of the 430 unnamed parties in the Dye lawsuit filed in 2010.” As in Faigin, therefore, we find that all the requirements of claim preclusion are met.
III. Conclusion
The circuit court’s order granting summary judgment to New Club is affirmed. Having concluded that res judicata bars relitigation of appellants’ claim, we need not consider the other points on appeal.
Affirmed.
Gruber and Barrett, JJ., agree.
Robert S. Tschiemer, for appellants.
Schnipper, Britton & Stobaugh, by: Beau Britton, for separate appellee Diamante Membership Club, Inc.