Wilcox v. Wooley

2015 Ark. App. 56

454 S.W.3d 792

George Wilcox and Wilcox Investment Limited Partnership, Appellants

v.Brad H. Wooley, Individually; Brad H. Wooley Auctioneers, Inc. ; Russell Huckaby, Individually; United Country–Market Station Real Estate & Auctioneers; and Wooley & Huckaby Auctioneers & Land Brokers, LLC, Appellees

No. CV–14–565

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered February 4, 2015

Newland & Associates, PLLC, by: Joel P. Hoover and Ashley D. Peoples, Little Rock, for appellants.

Lax, Vaughan, Fortson, Jones & Rowe, P.A., by: Grant E. Fortson, Little Rock, for appellees.

Opinion

RITA W. GRUBER, Judge

George Wilcox and his limited partnership, Wilcox Investment Limited Partnership, (collectively, Wilcox) bring this appeal from a summary judgment in favor of Brad H. Wooley Auctioneers, Inc.; Russell Huckaby; United Country–Market Station Real Estate Auctioneers; and Wooley & Huckaby Auctioneers & Land Brokers, LLC (collectively, the Auctioneers) on Wilcox's third-party claims that the Auctioneers breached their contract with Wilcox when they failed to stop an auction of Wilcox's real property. Finding no merit in Wilcox's arguments, we affirm the circuit court.

Background

On October 31, 2011, Wilcox entered into a contract with the Auctioneers to market and sell approximately 333 acres of real property owned by the partnership in Pulaski County. It was to be an “absolute” auction, without reserve and regardless of price. The sale was scheduled for December 2, 2011.

In his deposition, Wilcox testified that, as the sale approached, he was having reservations and was inclined to cancel the auction the day before it was scheduled. He further testified that because the Auctioneers agreed to cancel the auction if the bidder turnout was low, he decided not to cancel the sale.

Only four bidders attended the sale. Wilcox did not attend, but was represented by two of his children and his attorney. Wilcox further testified by deposition that he was on the phone with his daughter Kaye Wilcox when the Auctioneers suggested that they cancel the sale just before the scheduled time to begin. Wilcox testified that he relayed his agreement to the postponement through his daughter. The Auctioneers dispute that any agreement to halt the sale was made. Nevertheless, the Auctioneers started the bidding, and Ken Shollmier was declared the highest bidder with a bid of $235,000. Wilcox, contending that the property was appraised in excess of $950,000, refused to complete the sale.

Shollmier sued to compel Wilcox to proceed with the sale.¹ Shollmier twice amended his complaint. Wilcox answered, raising affirmative defenses and requesting a jury trial. Wilcox also asserted that Shollmier engaged in collusion during the bidding process such that the sale should be voided.

Wilcox filed a motion for leave to file a third-party complaint against the Auctioneers. The circuit court granted leave to file the third-party complaint. In the complaint, Wilcox repeated the previous allegations that the Auctioneers had breached their agreement to cancel the auction if there were not sufficient bidders. He further asserted entitlement to indemnification from the Auctioneers for any losses and sought judgment for the difference in the value of the land, for expenses incurred in the auction, lost profits, and reasonable attorney's fees. Wilcox later filed an amended third-party complaint asserting that there was an oral modification of the auction contract and that the Auctioneers were liable on a promissory-estoppel theory. The Auctioneers denied some of the allegations and pled certain affirmative defenses.

The Auctioneers moved for summary judgment, asserting that the deposition testimony showed that Wilcox never requested that the Auctioneers cancel the sale, that there was no evidence of collusion among the bidders, that there was no indemnity agreement between Wilcox and the Auctioneers, and that the auction contract was not subject to oral modification. Wilcox responded to the motion and to the Auctioneers' statement of undisputed facts.

Following a hearing on the motion for summary judgment, the circuit court took the matter under advisement before granting summary judgment to the Auctioneers. Wilcox attempted to appeal, but we dismissed the appeal for lack of a final, appealable order on the motion of the Auctioneers because Shollmier's claims against Wilcox remained pending.

After our dismissal of the earlier appeal, a jury trial was held on Shollmier's complaint for specific performance and breach of contract. The case was submitted to the jury on interrogatories. The jury found that Wilcox and the Auctioneers entered into a contract to sell the real property at absolute auction to the highest bidder, that Shollmier was the highest bidder, and that Wilcox breached the auction contract and the purchase agreement. Prior to trial, Shollmier had elected the remedy of specific performance, and the court accordingly ordered Wilcox to convey the property to Shollmier. This appeal followed.

Issues on Appeal

On appeal, Wilcox contends that (1) the court erred in granting summary judgment on the amended complaint because Wilcox presented proof that the Auctioneers were without authority to proceed with the auction; the Auctioneers breached their duty by continuing the auction; the Auctioneers agreed to an oral modification of the auction contract; and (2) that the circuit court erred as a matter of law in granting summary judgment to the Auctioneers on Wilcox's indemnity claim against the Auctioneers; in finding that any alleged modification of the auction contract was required to be in writing; and in finding that Wilcox could not proceed on a promissory-estoppel theory.

Standard of Review

Our supreme court has set forth the following standard of review with regard to motions for summary judgment:

Our standard of review for summary judgment cases is well established. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. We no longer refer to summary judgment as a drastic remedy and now simply regard it as one of the tools in a trial court's efficiency arsenal. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Moreover, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence.

Harvest Rice, Inc. v. Fritz & Mertice Lehman Elevator & Dryer, Inc., 365 Ark. 573, 575–76, 231 S.W.3d 720, 723 (2006) (citations omitted). The standard is whether the evidence is sufficient to raise a fact issue, not whether the evidence is sufficient to compel a conclusion. Wagner v. Gen. Motors Corp., 370 Ark. 268, 258 S.W.3d 749 (2007). A fact issue exists, even if the facts are not in dispute, if the facts may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. Id. In such an instance, summary judgment is inappropriate. Id.

Discussion

We address the arguments in a somewhat different order than the parties present in their briefs. Wilcox's main contention is that there was an oral modification of the auction contract whereby the Auctioneers agreed to cancel the auction if there were not sufficient bids being received. Wilcox further argues that the Auctioneers suggested that the auction be called off minutes before it was scheduled to start and that Kaye Wilcox agreed the Auctioneers could cancel the auction.

We find no merit to Wilcox's contention, made in several of his points, that there was an oral modification of the written contract between himself and the Auctioneers. First, the circuit court correctly held that Arkansas Code Annotated section 17–17–112(a) requires that any modifications of the auction contract be in writing.² A similar California statute has been deemed to be a statute of frauds for auctioneers. See Holyfield v. Julien Entertainment.com, Inc., 2012 WL 5878380 (C.D. Cal. Nov. 21, 2012) (discussing California Civil Code § 1812.608(d) (2005) ).³ While, as Wilcox argues, the language of the California statute is distinguishable from that used in section 17–17–112, it is a distinction without a difference because both statutes are aimed at prohibiting auctioneers from selling property without written agreements with the property owner. Moreover, Wilcox ignores the general rule that a material modification of a contract within the statute of frauds must be in writing in order to be valid and binding. See Davis v. Patel, 32 Ark. App. 1, 4, 794 S.W.2d 158, 160 (1990)discussing statute of frauds found at Ark. Code Ann. § 4–59–101(a)(4) ). We are not bound by the circuit court's interpretation, but in the absence of a showing that the circuit court misinterpreted the law, the circuit court's interpretation will be accepted as correct. Jackson v. Blytheville Civ. Serv. Comm'n, 345 Ark. 56, 43 S.W.3d 748 (2001). Because Wilcox has not shown that the circuit court's interpretation of section 17–17–112 as requiring any modification of an auction contract to be in writing is erroneous, we affirm on this point.

Second, any claim...