Sloop v. Kiker

                                 Cite as 2016 Ark. App. 125


                  ARKANSAS COURT OF APPEALS

                                        DIVISION III
                                       No.CV-15-206

MONA B. SLOOP and the MONA B. Opinion Delivered: February 24, 2016
SLOOP REVOCABLE TRUST
                  APPELLANTS APPEAL FROM THE NEWTON COUNTY
                              CIRCUIT COURT
V.                            [NO. CV2013-48-1]

SALLY ANN KIKER and RUSSELL L. HONORABLE SHAWN A. WOMACK,
KIKER, INDIVIDUALLY and as JUDGE
TRUSTEES of the SALLY ANN
KIKER REVOCABLE TRUST and the
RUSSELL L. KIKER REVOCABLE AFFIRMED
TRUST
                    APPELLEES



                                CLIFF HOOFMAN, Judge


         Appellants Mona B. Sloop and the Mona B. Sloop Revocable Trust (“Sloop”) appeal

from a summary-judgment order in favor of appellees Russell and Sally Kiker, individually

and as trustees of their respective trusts (“the Kikers”). 1 We affirm the summary-judgment

order.

         The Kiker trusts own a house on 134.5 acres in Newton County. On January 26,

2012, appellant Sloop contracted to purchase the house and the land for $850,000. The

contract contained the following down-payment provision:

         The nonrefundable down payment shall be $350,000, due upon execution of this
         contract by both parties, and the balance to be paid in full on or before January 1,

         We will not differentiate between the parties and their trusts unless the context
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dictates otherwise.
                                  Cite as 2016 Ark. App. 125

       2013. No interest shall be paid on the unpaid balance until January 1, 2013. If for
       unforeseen reasons, there is still a balance due after this date, an additional grace
       period of six months may be granted by the Seller, with interest accruing at local
       bank retail interest rate. Time is of the essence in satisfying the terms of this contract.
       In the event closing does not occur on or before August 31, 2013, this contract shall be null
       and void, the down payment shall be retained by Seller. Buyer, if then occupying the
       property shall vacate the property . . . .

(Emphasis supplied.)

       Sloop made the $350,000 down payment on January 26, 2012. That same day, the

parties executed two additional documents: a warranty deed and a lease/caretaker

agreement. The deed recited that the Kikers, as trustees, conveyed the property to Sloop as

trustee of her own trust. It further contained a full metes-and-bounds description of the

property, which the contract had described only by street address. The lease/caretaker

agreement essentially allowed Sloop to live on the property as a tenant until the $500,000

balance due was paid, subject to an August 31, 2013 deadline. Sloop assumed occupancy of

the property in the summer of 2012.

       Sloop did not pay the $500,000 balance by January 1, 2013. As the August 31, 2013

deadline approached, she informed the Kikers that she would also not be able to pay the

balance by that date. As a result, the Kikers entered into a listing agreement with a real-

estate agent on July 24, 2013, in an attempt to sell the property. Sloop remained on the

premises during this time.

       Efforts to sell the property were unsuccessful, and the listing agreement ended on

September 1, 2013. On or about September 6, 2013, the Kikers served Sloop with a notice

to vacate the premises. The notice stated that the lease/caretaker agreement had expired and




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                                 Cite as 2016 Ark. App. 125

that Sloop had missed the August 31, 2013 deadline to pay the balance due on the property,

requiring her to forfeit her $350,000 nonrefundable down payment.

       Sloop refused to vacate the property, and the Kikers filed suit against her in Newton

County Circuit Court. Their complaint sought an order removing Sloop from the property

and a declaration that they were entitled to retain the $350,000 down payment. Sloop

voluntarily abandoned the property a month after the complaint was filed, but she filed a

counterclaim asking that the Kikers return her $350,000 down payment.

        The Kikers moved for summary judgment, arguing that the real-estate contract

unambiguously provided that the $350,000 down payment was nonrefundable, given that

Sloop had failed to pay the balance due by August 31, 2013. Sloop responded that the down

payment constituted an improper penalty under Arkansas law; that the parties’ contract

violated the Statute of Frauds because it lacked a sufficient property description and failed

to identify the sellers; and that the Kikers waived the August 31, 2013 deadline. In

connection with her waiver argument, Sloop filed an affidavit stating that the Kikers had

agreed to return the down payment to her if the property sold for more than $850,000 upon

being listed with the real-estate agent.

       After a hearing, the circuit court entered an order granting the Kikers’ motion for

summary judgment. The order did not address Sloop’s penalty or waiver arguments but

instead granted summary judgment on the ground that any uncertainties in the real-estate

contract were cured by the warranty deed—a clear reference to Sloop’s Statute-of-Frauds

argument. Sloop now appeals from the summary-judgment order.




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       Sloop first contends that the $350,000 nonrefundable down payment represents an

unenforceable penalty. See generally Alley v. Rodgers, 269 Ark. 262, 599 S.W.2d 739 (1980);

McIlvenny v. Horton, 227 Ark. 826, 302 S.W.2d 70 (1957) (recognizing that a stipulated-

damages provision in a contract may constitute an unenforceable penalty if it does not meet

certain criteria). We cannot reach Sloop’s argument on this point because the circuit court

did not rule on it.

       An appellant has the burden to obtain a ruling on an issue in order to preserve the

issue for appeal. Ark. Lottery Comm’n v. Alpha Mktg., 2012 Ark. 23, 386 S.W.3d 400. In the

absence of a ruling, the appellate court will not reach the issue; nor will we presume a ruling

from the circuit court’s silence. Id. Applying these principles, our courts have held that,

when a circuit court’s order specifies a particular ground for the court’s decision, that ground

alone is subject to our review. See Tillman v. Raytheon Co., 2013 Ark. 474, 430 S.W.3d 698;

TEMCO Constr., LLC v. Gann, 2013 Ark. 202, 427 S.W.3d 651; Hurst v. Ark. Radiology

Affiliates, P.A., 2015 Ark. App. 333. Other arguments that the appellant raised below but

did not obtain a ruling on are not preserved for appeal, and we are precluded from addressing

them. Tillman, supra; TEMCO, supra; Hurst, supra. By contrast, if the circuit court’s order is

more in the nature of a “blanket” decision and does not articulate a particular basis for its

ruling, then the order encompasses all of the issues presented to the circuit court in the

parties’ briefs and arguments. See generally Ark. Dep’t of Human Servs. v. Ft. Smith Sch. Dist.,

2015 Ark. 81, 455 S.W.3d 294; Asset Acceptance, LLC v. Newby, 2014 Ark. 280, 437 S.W.3d

119 (citing Hardin v. Bishop, 2013 Ark. 395, 430 S.W.3d 49).




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       Here, the circuit court’s summary-judgment order was not a “blanket” ruling.

Rather, the order discussed and ruled on Sloop’s Statute-of-Frauds argument without

deciding whether the $350,000 down payment constituted a penalty. Therefore, based on

the above-cited authorities, Sloop’s penalty argument is not reviewable by this court.

       Sloop’s claim that the Kikers waived the August 31, 2013 payment deadline is

likewise procedurally barred. Sloop made her waiver argument during the summary-

judgment hearing, and the circuit court appeared to consider and reject it. However, the

waiver issue was not addressed in the court’s summary-judgment order. As our supreme

court has recognized, “the written order controls.” Nat’l Home Ctrs., Inc. v. Coleman, 370

Ark. 119, 121, 257 S.W.3d 862, 863 (2007). 2

       Turning to the issue that was ruled on below, Sloop argues that the circuit court

erred in determining that the parties’ real-estate contract satisfied the Statute of Frauds. We

see no error on this point.

       The Statute of Frauds provides that a contract for the sale of land must be in writing

to be enforceable. Ark. Code Ann. § 4-59-101(a)(4) (Repl. 2011). Additionally, the contract

must contain certain essential information, such as the terms and conditions of the sale, the

price to be paid, the time for payment, and a description of the property. See Van Dyke v.




       2
         Sloop cites Bayer Cropscience LP v. Schafer, 2011 Ark. 518, 385 S.W.3d 822, for the
proposition that an oral ruling on a motion is sufficient. Bayer involved a ruling on a
preliminary motion in a case that subsequently went to trial. The case at bar involves a
dispositive summary-judgment ruling, which must necessarily be reduced to writing and
entered of record to be effective. See Ark. R. Civ. P. 58 (2015); Ark. Sup. Ct. Admin.
Order No. 2(b)(2) (2015).
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                                 Cite as 2016 Ark. App. 125

Glover, 326 Ark. 736, 934 S.W.2d 204 (1996); Price v. Willbanks, 2009 Ark. App. 849, 374

S.W.3d 28.

       Sloop contends that the contract in this case was deficient because it did not name

the Kiker trusts as sellers of the property and did not contain a sufficient description of the

property. However, as noted by the circuit court, the warranty deed that the parties

executed on the same day as the real-estate contract named the Kiker trusts as grantors and

provided a formal, legal description of the property. Generally, instruments executed at the

same time by the same parties, for the same purpose, and in the course of the same

transaction, are, in the eyes of the law, one instrument and will be read and construed

together. Graves v. Graves, 7 Ark. App. 202, 646 S.W.2d 26 (1983). Moreover, if a contract

furnishes a means by which realty can be identified—a key to the property’s location—the

Statute of Frauds is satisfied. Baker v. Taylor & Co., 218 Ark. 538, 237 S.W.2d 471 (1951).

Here, the contract’s designation of the premises by street address met this requirement.

Creighton v. Huggins, 227 Ark. 1096, 303 S.W.2d 893 (1957); Price, supra.

       Sloop also cites what she refers to as an ambiguity in the contract, arising from the

fact that the contract calls for a six-month grace period if the balance is not paid by January

1, 2013, but also provides for a nine-month payment extension until August 31, 2013. The

law does not favor the destruction of contracts over uncertainty. Price, supra. This is

particularly true where, as here, the contract contained an express deadline of August 31,

2013, which the parties treated as operative throughout the case.

       Affirmed.

       VAUGHT and BROWN, JJ., agree.


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                               Cite as 2016 Ark. App. 125

       Patterson Law Firm, P.A., by: Jerry D. Patterson; and Taylor & Taylor Law Firm, P.A.,

by: Tasha C. Taylor and Andrew M. Taylor, for appellants.

       Wright, Lindsey & Jennings LLP, by: Kyle R. Wilson, Michael A. Thompson, and R.

Aaron Brooks, for appellees.




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