FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73CV-15-58]
HONORABLE THOMAS HUGHES, JUDGE
Hudgins, for appellant.
& Arnold, Attorneys at Law, P.A., by: Wesley G. Lody, for
W. GRUBER, Chief Judge
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. We affirm the circuit court's order.
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
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).
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 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.
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
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
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 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
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
also argues that there was a genuine issue of material fact
regarding whether 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 ...