MAURICE R. LIPSEY, WILLIAM LARRY COX, and CONNIE L. COX, APPELLANTS
KAREN GILES, APPELLEE
FROM THE CLEBURNE COUNTY CIRCUIT COURT. NO. CV-2011-223-4.
HONORABLE TIM WEAVER, JUDGE.
Law Firm, PLLC, by: John R. Holton, for appellants.
Bray; and PPGMR Law, PLLC, by: Kimberly D. Logue, for
F. WYNNE, Associate Justice
R. Lipsey, William Larry Cox, and Connie L. Cox appeal from
an order of the Cleburne County Circuit Court granting
summary judgment in favor of appellee Karen Giles on their
complaint. They argue that the circuit court erred by
granting summary judgment because (1) Giles failed to come
forth with proof on their theories of damages and (2) they
met Giles's lack of proof with proof of a question of
material fact as to the existence of damages. As this court
has previously heard an appeal in this case, our jurisdiction
is pursuant to Arkansas Supreme Court Rule 1-2(a)(7) (2015).
We affirm the grant of summary judgment.
are property owners and holders of oil-and-gas leases in
Cleburne County. Karen Giles is the Cleburne County Circuit
Court Clerk. Appellants filed a class-action complaint in
which they alleged that Giles and two of her deputies falsely
and fraudulently notarized oil-and-gas leases. Specifically,
the complaint alleged that landmen, who were procuring the
leases on behalf of oil-and-gas companies, obtained
landowners' signatures on the leases and delivered them
to the clerk's office, where the clerks notarized the
signatures and recorded the leases, despite the fact that the
clerks had not witnessed the landowners signing the leases.
Appellants alleged that their leases were fraudulently
notarized; however, they did not allege that their leases
were fraudulently or illegally procured. Appellants sought an
injunction requiring appellee to " inspect and verify
each and every oil and gas lease received for recording and
filing to determine if the notarial acknowledgment is
accurate, true, and correct." Appellants sought to
enjoin appellee to " purge any and all oil and gas
leases which contain false notarial acknowledgments."
Appellants also sought costs and attorney's fees.
discovery had commenced, appellants filed a motion for
injunction. During the hearing on the motion for injunction,
the circuit court questioned appellants regarding their
damages. After concluding that appellants had not been
damaged, the circuit court dismissed the case on its own
motion. Appellants appealed from the written order dismissing
the case. This court reversed and remanded, holding that the
sua sponte dismissal deprived appellants of notice and the
opportunity to meet proof with proof and demonstrate that a
material question of fact existed regarding whether they had
suffered damages due to the allegations in the complaint.
Lipsey v. Giles, 2014 Ark. 309, 439 S.W.3d 13.
remand of the case to the trial court, Giles filed a motion
for summary judgment in which she alleged that appellants had
failed to demonstrate that they had suffered any damages as a
result of the allegations in the complaint. Appellants
opposed the motion and attached to their response an
affidavit executed by Tom Ferstl, an attorney and certified
appraiser. In the affidavit, Mr. Ferstl states that, in his
opinion, the actions of Giles and the deputy clerks have had
a " chilling effect" on property values in Cleburne
County because buyers will be less likely to purchase
property there knowing the uncertainty in the official
county-property records. He further states that, in his
opinion, appellants have been damaged by the inclusion of the
fraudulently notarized leases in the county-property records.
Following a hearing, the trial court entered an order in
which it found that appellants had failed to show any damages
as a result of Giles's purportedly unlawful act in
recording their leases and granted the motion for summary
judgment. This appeal followed.
is well settled regarding the standard of review used by this
court in reviewing a grant of summary judgment. SeeBrock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179. A
trial court will grant summary judgment only when it is
apparent that no genuine issues of material fact exist
requiring litigation and that the moving party is entitled to
judgment as a matter of law. Id. The burden of proof
shifts to the opposing party once the moving party
establishes a prima facie entitlement to summary judgment;
the opposing party must demonstrate the existence of a
material issue of fact. Id. After reviewing the