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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