Mark Dana and Diana Dana v. Diamante Members Club, Inc. And Diamante, a Private Membership Golf Club, LLC

Cite as 2022 Ark. App. 366
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-19-769

MARK DANA AND DIANA DANA Opinion Delivered September 28, 2022
APPELLANTS
APPEAL FROM THE SALINE
COUNTY CIRCUIT COURT
V. [NO. 63CV-18-1026]

DIAMANTE MEMBERS CLUB, INC. HONORABLE GRISHAM PHILLIPS,
AND DIAMANTE, A PRIVATE JUDGE
MEMBERSHIP GOLF CLUB, LLC
APPELLEES AFFIRMED

RITA W. GRUBER, 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, Mark

Dana and Diana Dana (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 Diamante Members

Club, Inc. (“New Club”).

I. Background Facts

Appellants purchased a lot in the Diamante subdivision on November 12, 2002. In

or around 2013, appellants ceased making their monthly club payment, and appellee

Diamante, A Private Membership Golf Club, LLC (“Old Club”), filed a lien for unpaid

monthly dues on the property. Later, New Club filed a complaint to foreclose the lien on

July 17, 2018. Appellants filed their answer and defensive counterclaim against New Club

on September 27, 2018, wherein they alleged they are residents of the State of Texas and

denied ever paying monthly dues or any of the club facilities. Furthermore, appellants

maintained they never received any notice of unpaid dues or the liens filed on the property.

They also asserted a defensive counterclaim alleging fraud in the inducement of a contract.

Subsequently, appellants abandoned their counterclaim and filed an amended answer to the

complaint that asserted additional allegations of false representations made by the developers

and a claim that they had no contract with New Club.

New Club and appellants filed cross-motions for summary judgment on March 15,

2019. A final judgment and decree of foreclosure was entered granting summary judgment

to New Club on May 31, 2019, and appellants filed timely notices of appeal.

II. Discussion

The circuit court concluded that appellants were attempting to relitigate claims which

had previously been decided, or could have been decided, in Dye v. Diamante, a Private

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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 summary

judgment in favor of New Club.

While appellants contend on appeal that they were not parties in Dye, we find no

merit to this argument. In pleadings before the circuit court, appellants expressly admitted

they “were unnamed members in the Dye case” and go on to state that “[a]lmost all of the

450 owners of lots and homes in the Diamante subdivision, including Defendants, were

unnamed parties in the Dye class action.” The key question regarding the application of res

judicata is whether the party against whom the earlier decision is being asserted had a full

and fair opportunity to litigate the issue in question. Cox v. Keahey, 84 Ark. App. 121, 133

S.W.3d 430 (2003). Appellants were lot owners when Dye was filed in 2013, and as noted

by the circuit court, they never opted out of the plaintiff class; thus, appellants are bound by

the circuit court’s decision in Dye, as affirmed by the Arkansas Supreme Court.

III. Conclusion

As in Faigin, we find that all the requirements of claim preclusion are met;

accordingly, 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.

GLADWIN and BARRETT, JJ., agree.

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Robert S. Tschiemer, for appellants.

Schnipper, Britton & Stobaugh, by: Beau Britton, for separate appellee Diamante

Membership Club, Inc.

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