MONA B. SLOOP and the MONA B. SLOOP REVOCABLE TRUST, APPELLANTS
SALLY ANN KIKER and RUSSELL L. KIKER, INDIVIDUALLY and as TRUSTEES of the SALLY ANN KIKER REVOCABLE TRUST and the RUSSELL L. KIKER REVOCABLE TRUST, APPELLEES
APPEAL FROM THE NEWTON COUNTY CIRCUIT COURT [NO. CV2013-48-1] HONORABLE SHAWN A. WOMACK, JUDGE
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.
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"). 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, 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 . . . .
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 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 ...