United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
Bradbury brought this action against W. Andrew Holitik,
Edward Wagoner, and W. Andrew Holitik Events Aesthetics
alleging claims for fraud and breach of contract, or in the
alternative unjust enrichment. Document #12. Holitik and
Wagoner filed a counterclaim against Bradbury for breach of
contract, abuse of the judicial process, defamation, and
violating the Arkansas Deceptive Trade Practices
The Court dismissed the fraud claim pursuant to Federal Rules
of Civil Procedure 9(b) and 12(b)(6). Document #41. The Court
dismissed all claims against Wagoner pursuant to Rule 56.
Document #44. The breach of contract and unjust enrichment
claims against Holitik and his business remain. Bradbury has
filed a motion for partial summary judgment pursuant to Rule
56. Document #77. He asserts that it is undisputed that the
defendants are liable for either breach of contract or, in
the alternative, unjust enrichment and the only issue of fact
for a jury is the amount of damages. For the following
reasons, the motion is denied.
following facts are undisputed. Bradbury and his wife, Laura,
hired Holitik to unpack and decorate their home. The parties
agreed to a $50, 000 budget. The parties did not reduce their
agreement to writing. Holitik spent more than $50, 000,
charging expenditures to a credit card provided to him by
Bradbury. Holitik used the credit card to purchase gas, food,
and alcohol, in addition to furniture, goods, and decor.
Holitik withdrew and transferred funds from Bradbury's
account. The unpacking and decorating job was not complete on
August 4. The Bradburys again hired Holitik to decorate their
home for Thanksgiving. The parties agreed to a $2, 500
budget. The parties did not reduce their agreement to
writing. Holitik spent more than $52, 500 on the unpacking
and decorating and Thanksgiving jobs combined.
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986).
Court must view the evidence in the light most favorable to
the nonmoving party and must give that party the benefit of
all reasonable inferences that can be drawn from the record.
Pedersen v. Bio-Med. Applications of Minn., 775 F.3d
1049, 1053 (8th Cir. 2015). If the nonmoving party fails to
present evidence sufficient to establish an essential element
of a claim on which that party bears the burden of proof,
then the moving party is entitled to judgment as a matter of
law. Id. But if the moving party bears the burden of
proof on a claim at trial, he must affirmatively show that,
on all essential elements of the claim, no reasonable jury
could find for the nonmoving party. USC Enter., LLC Shah
v. Ahmed, 2016 WL 4148276 (E.D. Ark. Aug. 4, 2016)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 331,
106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986) (Brennan, J.
dissenting); Leone v. Owsley, 810 F.3d 1149, 1153
(10th Cir. 2015); Smith v. Ozmint, 578 F.3d 246, 250
(4th Cir. 2009); United States v. Four Parcels of Real
Prop, in Greene and Tuscaloosa Cnty. 941 F.2d 1428, 1438
(11th Cir. 1991); Calderone v. United States, 799
F.2d 254, 259 (6th Cir. 1986)). "In other words, the
evidence in the movant's favor must be so powerful that
no reasonable jury would be free to disbelieve it. Anything
less should result in the denial of summary judgment."
Leone, 810 F.3d at 1153 (quoting 11 Jeffrey W.
Stempel & Steven S. Gensler, Moore's Federal
Practice, § 56.40[c][c] (3d ed. 2015)).
prevail on the breach of contract claim, Bradbury must show
there is no genuine dispute as to (1) the existence of a
valid and enforceable contract; (2) the obligation of Holitik
thereunder; (3) a violation by Holitik; and (4) damages
resulting from the breach. Perry v. Baptist Health,
358 Ark. 238, 244, 189 S.W.3d 54, 58 (2004). The essential
elements of a contract are (1) competent parties; (2) subject
matter; (3) legal consideration; (4) mutual agreement; and
(5) mutual obligation. Bank of the Ozarks, Inc. v.
Walker, 2016 Ark. 116, 2, 487 S.W.3d 808, 810. Bradbury
maintains that the parties entered into two express, valid,
and enforceable oral contracts-one for unpacking and
decorating the house and another for Thanksgiving
decorations-and that Holitik breached both contracts.
Holitik, however, argues that these contracts are
unenforceable because the terms were never specified and that
even if the contracts are enforceable, they do not include
the terms asserted by Bradbury.
clear from the parties' depositions that the Bradburys
and Holitik had some sort of agreement, and that Holitik was
working for the Bradburys during the summer and fall of 2013.
The issue is whether Bradbury has met his burden to provide
the Court with sufficient evidence of the contracts'
particular terms and in turn Holitik's obligations under
the contracts and his breach of those obligations. See
DaimlerChrylser Corp. v. Smelser, 375 Ark. 216, 289
S.W.3d 466, 470 (2008). "[A] court cannot make a
contract for the parties, but can only construe and enforce
the contract that they have made; and if there is no meeting
of the minds, there is no contract; and . . . it is well
settled that in order to make a contract there must be a
meeting of the minds as to all terms, using objective
indicators." Williamson v. Sanofi Winthrop Pharm.,
Inc., 347 Ark. 89, 98, 60 S..W.3d 428, 434 (2001).
Without sufficient evidence of the contracts' terms,
there is no basis for the Court to determine Holitik's
obligations, nor enough evidence to say whether he breached
and Holitik both say they entered into an oral agreement
pursuant to which Holitik promised to unpack and decorate the
Bradburys' home and that they entered into a separate
oral agreement to which Holitik promised to decorate the home
for Thanksgiving. See Document #80-1 at 40-43;
Document #77-1 at 10. But the parties disagree about the
particulars. The alleged "breach" is Holitik's
failure to complete the job in the time agreed upon, failing
to provide all the materials chosen and paid for by Bradbury,
and exceeding the agreed-upon budget. Document #12 at 4, 8-9.
¶¶13, 32-40. The following facts are disputed.
First, the Bradburys say that Holitik was not authorized to
use their credit card to purchase gas, food, or alcohol.
Holitik says that the agreements with the Bradburys did not
include such a limitation, but instead the Bradburys
authorized him to make such purchases. Second, the Bradburys
say that Holitik was not authorized to spend more than $50,
000 on the unpacking and decorating job, nor to spend more
than $2, 500 on the Thanksgiving j ob. Holitik says that the
Bradburys not only authorized him to exceed the budget, but
they requested that he do additional work. Third, the
Bradburys say that the unpacking and decorating j ob was to
be "largely" completed by August 4, but that it
remained incomplete. Holitik says the job was
"largely" completed by August 4.
judgment in favor of Bradbury is precluded by the existence
of these factual disputes about the particular terms of the
contracts. See Napoleon Hill Cotton Co. v. Gray, 99
Ark. 648, 137 S.W. 827 (1911) (holding that when a contract
is made orally and each party introduces testimony, which if
true, establishes his contention, the jury weighs the
evidence to establish the nature of the contract). See
also Cherne Contracting Corp. v. Marathon Petroleum Co.,
LLC, 578 F.3d 735, 740 (8th Cir. 2009) ("[A] jury
is to decide material questions of fact regarding the
existence or terms of an oral or implied contract."
(applying Minnesota law)). While the existence of disputed
terms in an oral contract does not necessarily preclude
summary judgment, it does in this case because Bradbury has
failed to show, as the moving party who also bears the burden
on all essential elements of his claim at trial, that no
reasonable jury could find for Holitik. The same reasoning
applies to Bradbury's alternate claim for unjust
foregoing reasons, Bradbury's motion for partial summary
judgment is DENIED. Document #77.