Derrick v. Haynie

Cite as 2017 Ark. App. 327
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-16-1031
PATRICIA DERRICK Opinion Delivered: May 24, 2017
APPELLANT
APPEAL FROM THE WHITE
V. COUNTY CIRCUIT COURT
[NO. 73CV-15-58]
RUTH ELLEN HAYNIE, HONORABLE THOMAS HUGHES,
INDIVIDUALLY; THE RUTH ELLEN JUDGE
HAYNIE REVOCABLE TRUST; AND
RUTH ELLEN HAYNIE, TRUSTEE OF
THE RUTH ELLEN HAYNIE AFFIRMED
REVOCABLE TRUST
APPELLEES
RITA W. GRUBER, Chief Judge
This case concerns the authority of a landlord to sell a tenant’s property after the
termination of their lease. Appellant, Patricia Derrick, appeals from an order of the White
County Circuit Court granting her former landlord’s motion for summary judgment and
dismissing appellant’s complaint. In her complaint, appellant asked the court for the return
of her property or damages to compensate her for the value of property that had been sold
by appellee Ruth Ellen Haynie.1 We affirm the circuit court’s order.
A circuit court may grant summary judgment only when it is clear that there are no
genuine issues of material fact to be litigated and that the party is entitled to judgment as a
1
The appellees in this case are Ruth Ellen Haynie, individually; the Ruth Ellen Haynie
Revocable Trust; and Ruth Ellen Haynie, as Trustee of the Ruth Ellen Haynie Revocable
Trust. The parties refer to the appellee in the singular as Ruth Ellen Haynie.
Cite as 2017 Ark. App. 327
matter of law. Mitchell v. Lincoln, 366 Ark. 592, 596, 237 S.W.3d 455, 458 (2006). Once the
moving party has established a prima facie case showing entitlement to summary judgment,
the opposing party must meet proof with proof and demonstrate the existence of a material
issue of fact. Id. at 597, 237 S.W.3d at 458. On appellate review, we determine if summary
judgment was appropriate based on whether the evidentiary items presented by the moving
party in support of its motion leave a material fact unanswered. Id. Ordinarily, we view the
evidence in the light most favorable to the party resisting the motion, and any doubts and
inferences are resolved against the moving party. Aloha Pools & Spas, Inc. v. Employer’s Ins.
of Wausau, 342 Ark. 398, 403, 39 S.W.3d 440, 443 (2000). However, in a case where the
parties agree on the facts, we simply determine whether the appellee was entitled to
judgment as a matter of law. Lopez v. United Auto. Ins. Co., 2013 Ark. App. 246, at 5, 427
S.W.3d 154, 157. As to issues of law presented, our review is de novo. Preston v. Stoops, 373
Ark. 591, 593, 285 S.W.3d 606, 609 (2008).
The parties do not dispute most of the relevant facts. Pursuant to an oral agreement
entered into in November 2011, appellant rented an office building in Beebe from appellee
on a month-to-month tenancy in which appellant operated an online antique-sales business
and kept inventory. On October 29, 2014, appellant was personally served at her home with
a “Notice of Termination of Month to Month Tenancy” (the Notice). The Notice was
signed by appellee’s attorney, indicated that the attorney represented appellee, and stated the
following:
Please understand that the tenancy from month to month on the referenced property
that you rent from Ruth Haynie ends December 1, 2014. You must vacate the
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referenced property no later than December 1, 2014, removing all items of personal
property that belong to you located within the structure on said property no later than
December 1, 2014.
Depositions of both parties were attached to appellee’s motion for summary judgment.
Appellant admitted in her deposition that she received the Notice at her home on October
29, 2014, and that, after having received the Notice, she told her son about it. Appellant
testified that she was not feeling well during November. She did not remove any property
from the building.
Appellee testified in her deposition that she had attempted to contact appellant by
letter and by phone and had left numerous messages in September and October to resolve
certain insurance issues but that appellant had never responded. Being unable to reach
appellant, appellee sent the Notice. Appellee testified that, after appellant had failed to
remove her property, the owner of a flea market across the street from the office building
made a $1200 offer for all of the inventory, which appellee did not accept. Appellee said that
she then sold the inventory to the subsequent tenant for $3000 in early December, sometime
between December 3 and December 10.
On February 12, 2015, appellant filed a complaint against appellee asking the court
to issue a writ of possession for her property to be returned or, in the event it could not be
returned, for a judgment of $261,000 in damages for conversion. Appellee filed a motion for
summary judgment, attaching the depositions and arguing that she was entitled to judgment
as a matter of law pursuant to Ark. Code Ann. § 18-16-108, which governs property left on
premises after the termination of a lease. The court held a hearing and granted appellee’s
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motion, finding that the lease had been terminated, appellant’s property had been left on the
leased premises after termination, and the statute provides that such property is considered
abandoned and authorizes the lessor to dispose of it without recourse by the lessee.
On appeal, appellant argues that the circuit court erred in granting appellee’s motion
because there are genuine issues of material fact regarding whether the Notice was
appropriate and whether property was “left.” We turn first to her contention that there are
genuine issues of fact regarding the Notice. The only evidence in the case demonstrated that
the lease was a month-to-month tenancy. Appellee testified that the rent was usually paid
“around the 10th of the month.” Appellee also testified that she sent a letter to appellant on
September 17, 2014, saying that she wanted her “out” and that appellant was “paid up until
October 10th.” Although appellant argues that she paid rent for November, she produced
no evidence to show that she had paid and that appellee had accepted any rent for days past
October. Appellant admitted that she received the Notice on October 29, 2014, stating that
she was to vacate the premises and remove all of her property by December 1, 2014. Thus,
the lease was terminated, at the latest, by December 1, 2014. Appellant produced no
evidence to prove otherwise. Once the moving party makes a prima facie showing of
entitlement, the opposing party may not rest on mere allegations or denials, but must “meet
proof with proof” and set forth specific facts showing that there is a genuine issue for trial.
Entmeier v. City of Fort Smith, 2016 Ark. App. 517, at 8, 506 S.W.3d 253, 258. Thus, there
was no genuine issue of material fact regarding the propriety of the notice given.
Appellant also argues that there was a genuine issue of material fact regarding whether
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her property had been “abandoned.” She cites caselaw regarding the definitions of “lost
property,” “mislaid property,” and “abandoned property.” See, e.g., Terry v. A.D. Lock, 343
Ark. 452, 37 S.W.3d 202 (2001). None of the cases appellant cites are relevant to the facts
of this case. Here, a specific statute governs the situation and provides that “[u]pon the
voluntary or involuntary termination of any lease agreement, all property left in and about
the premises by the lessee shall be considered abandoned and may be disposed of by the lessor
as the lessor shall see fit without recourse by the lessee.” Ark. Code Ann. § 18-16-108(a)
(Repl. 2015). The statute dictates that the property left on the leased premises at the
termination of a lease agreement “shall be considered abandoned.” There is no question of
fact to determine. Appellant’s property was left in the leased premises and was therefore
“abandoned.” Appellee was free to dispose of it as she saw fit without recourse by appellant.
Affirmed.
KLAPPENBACH and HIXSON, JJ., agree.
Robert Hudgins, for appellant.
Lody & Arnold, Attorneys at Law, P.A., by: Wesley G. Lody, for appellee.
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