FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-16-803]
HONORABLE JOHN R. SCOTT, JUDGE.
Law Firm, P.A., by: D. Westbrook Doss, Jr., and Alex T.
Shirley, for appellant.
Friday, Eldredge & Clark, LLP, by: Clifford W. Plunkett,
Kael K. Bowling, and Joshua C. Ashley, for appellees.
F. VIRDEN, JUDGE.
GM Enterprises, LLC (GM) appeals from the Benton County
Circuit Court's order granting summary judgment to
appellees HCH Toyota, LLC ("HCH") and Sachs/Haynes
503, LLC ("Sachs") on various claims raised by GM,
including breach of contract, conversion, and unjust
enrichment. On appeal, GM argues that summary judgment was
inappropriate. We agree; therefore, we reverse and remand.
leased property owned by appellees for its car dealerships.
HCH owned property that GM used for its new-car facility, and
Sachs owned property that GM used for its used-car facility.
Two substantially similar lease agreements required GM to pay
3. Rent. (a) Base Rent.. . . The
Annual Base Rent shall be payable in monthly installments . .
. on or before the fifth (5th) day of each calendar month
during the term of this Lease. Rental for the first and last
months hereof shall be prorated on a daily basis.
historically paid the base rent through two automatic
transfers from its bank, Arvest, to the accounts of HCH and
Sachs on the first day of each month. In the fall of 2015,
the parties began negotiations to sell the real estate and
car dealerships to a third party. GM agreed to sell the
dealerships to LL Ark Northwest, LLC, and appellees agreed to
sell the real estate to a related entity called LL Ark
Properties, LLC. Two lease-termination agreements (LTAs) were
executed and included the following pertinent language:
1. Termination of Lease. Effective
upon the Closing of the Dealership Transaction and Real
Estate Transaction and provided that the Lessee has satisfied
its obligations to pay Base Rent through the Termination Date
to Lessor and has paid, or provided adequate funds for the
payment of, 2015 property taxes and prorated 2016 property
taxes (through the Termination Date) assessed against the
Leased Premises (the "Termination
Date"), except as provided below, the Lease
shall be deemed automatically terminated, null, void, and of
no future effect, without any further action required on the
part of Lessor or Lessee. From and after the Termination
Date, neither Lessee, Lessor, any Guarantor nor any of their
respective affiliates shall have any further liability,
right, duty or obligation to the other party arising under
the Lease. . . .
2. Release. As additional
consideration for the termination of the Lease, each party
hereby releases and waives any rights, duties, claims, or
obligations of the other party arising out of or in
connection with the Lease from and after the effective date
of this Agreement.
following footnote is included in the LTAs:
"Closing" shall mean the date on which the parties
to the Dealership Transaction and Real Estate Transaction
make effective the conveyance of the respective assets and
properties associated with each to LL Ark Properties, LLC and
LL Ark Northwest, LLC and the purchase price for each is paid
by LL Ark Properties, LLC and LL Ark Northwest, LLC,
January 28, 2016, GM contacted Arvest and attempted to cancel
the automatic transfers to appellees for February's rent.
On February 1, 2016, the parties executed the LTAs. GM later
learned that Arvest had failed to cancel the automatic
transfers, so rent of $101, 214.92 and $56, 745.93 was paid
to HCH and Sachs, respectively, on February 1, 2016. Kenrick
Morrand, an owner of GM, contacted Hunter ...