concurring. As the majority correctly states, in order for the doctrine of collateral estoppel, or the issue-preclusion aspect of res judicata, to bar the relitigation of issues actually litigated by the parties in the first suit, the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in question and that issue must have been essential to the judgment. Zinger v. Terrell, 336 Ark. 423, 985 S.W.2d 737 (1999) (emphasis added). Under the Arkansas Constitution, deciding whether homestead exists is essential to determining whether a creditor’s hen has attached to the property: “The homestead of any resident of this state . . . shall not be subject to the hen of any judgment or decree of any court. . . .” Ark. Const. art. 9, § 3. Here, the circuit court initially avoided making an affirmative ruling on the homestead issue before proceeding to decide the issue of attachment. Because the issues of attachment and homestead were one and the same, the circuit court was barred from revisiting the homestead issue upon remand from the Arkansas Court of Appeals. Therefore, I would reverse and remand on the appellants’ first point on appeal, which point the majority dechnes to decide.
Over one hundred years ago, in Gray v. Patterson, 65 Ark. 373, 46 S.W. 730 (1898), our court addressed the issue of whether a homestead is exempt from the attachment of creditor’s liens. Id. In doing so, this court held that while the existence of the homestead exemption under the 1868 Constitution merely delayed a creditor’s ability to execute its lien until after the homestead was abandoned, under our current constitution “no judgment is a lien upon the homestead” — that is, a judgment never attaches to a homestead. Id. at 377-78, 46 S.W. 730, 731; see also 3 Thompson on Real Property, § 21.4(n), at 222-24 (2d ed. 1994). Thus, a determination of whether homestead exists is an “essential” determination, for purposes of collateral estoppel, that must be made before a court can reach a judgment concerning the attachment of the creditor’s liens.
Here, in its first order, the circuit court refused to make a specific ruling on the homestead issue. However, at the same time, the court effectively ruled on the homestead issue when it went on to determine the issue of whether the appellants’ liens attached to the appellees’ property interest. In reaching its conclusion, the circuit court stated that the determinative issue on summary judgment was whether “the liens of the judgment creditors attached to the real property” and concluded that all “relevant facts bearing on [the] issue are undisputed.” The circuit court further reasoned that
“[f)rom the pleadings and their exhibits, this controversy is resolved by an examination of the mortgage indebtedness of Robert and Tiffany Johnson .... The marital property was sold to the family corporation at public sale for $96,000 .... After payment of the costs of sale, the remaining proceeds were insufficient to satisfy in full the mortgage indebtedness. The family corporation made a second payment voluntarily to retire all debt to the bank .... It is at this point in time that the interest of Tiffany Johnson in the marital property ceased to exist. Upon that termination, the judgment liens of Sherry Crow and Sherry Parker on the interest of Tiffany Johnson also ceased to exist.... The satisfaction of [the third party bank’s] priority claim eliminated all interest of Tiffany Johnson in the property which in turn caused the liens attached to that interest to terminate, also.
While it is true that the circuit court did not make an affirmative ruling on the homestead issue, erroneously glossing over that essential issue, the court effectively ruled on homestead by assuming that the appellants’ judgments had attached to Tiffany Johnson’s property interest. The homestead issue was therefore actually litigated. Furthermore, the parties had a “full and fair opportunity” to litigate the issue as shown by extensive arguments on homestead evidenced in the briefs and hearing transcripts below. Thus, collateral estoppel, or the issue-preclusion aspect of res judicata, does apply to the homestead issue.
The appellees could have avoided collateral estoppel in the second appeal if they had simply filed a cross-appeal in the first appeal, asserting that the circuit court erred by making a finding on attachment without first making a specific finding on the homestead issue. If the appellees had raised the issue of the circuit court’s erroneous finding on attachment, they would have enabled the appellate court to address that issue on the merits and provide instructions as to the proper procedure for the circuit court to follow on remand. See Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). However, the appellees did not do so, and the circuit court therefore remained bound to its initial order and barred from revisiting the homestead issue.
For the above stated reasons, I would hold that the circuit court’s ruling on homestead was barred by the doctrine of collateral estoppel and would reverse and remand on that point.