Sloop v. Kiker , 484 S.W.3d 696 ( 2016 )

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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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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Cite as 2016 Ark. App. 125
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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Cite as 2016 Ark. App. 125
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.
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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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