Sylvia Knight v. Sissy's Log Cabin

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA05-155

September 7, 2005

SYLVIA KNIGHT AN APPEAL FROM THE JEFFERSON

APPELLANT COUNTY CIRCUIT COURT

v. [CV-02-981-2]

SISSY'S LOG CABIN HONORABLE JOHN BERTRAN

APPELLEE PLEGGE, JUDGE

REVERSED AND REMANDED

Olly Neal, Judge

Appellant Sylvia Knight appeals from an order of the Jefferson County Circuit Court that granted appellee Sissy's Log Cabin's (Sissy's) motion for summary judgment. On appeal, appellant asserts that the grant of summary judgment was in error. We agree, and therefore, reverse and remand.

Sissy's is a jewelry store. Appellant's late husband, Thomas "Ted" Knight, had an account with Sissy's. He would use the account to purchase jewelry, some of which he gifted to appellant. In November 2002, appellee filed a complaint alleging that appellant owed $6,085.69 for purchases made by Mr. Knight. On December 4, 2002, appellant filed a pro se answer denying the debt and any contractual relationship.

Appellant was deposed on January 17, 2003. She testified that, following her husband's death, she paid $250 toward the account. Appellant said that she knew there was an outstanding obligation, but she did not know how much was owed on the account. Appellant also said that she knew that her check for $250 did not satisfy the full obligation. During her testimony, appellant stated that, following her husband's death, she hired anattorney to assist her in filing an Affidavit of Collection of Small Estate. In the affidavit, appellant listed a 1991 Cadillac DeVille as Mr. Knight's only asset. The affidavit also states that there were no unpaid claims owed by Mr. Knight. Appellant stated that, when she signed the affidavit, she knew that the account had an outstanding balance, but because no demand had been made, she signed the affidavit stating there were no unpaid claims. Appellant testified that she never told Sissy's to add her name to the account. Appellant conceded that she had talked to Sissy's account manager over the phone about the possibility of her returning certain pieces of jewelry in exchange for settlement of the account but said that an agreement was never reached.

Sissy's filed a motion for summary judgment, on September 7, 2004, alleging there were no genuine issues of material fact. Attached to the motion were a copy of the check for $250, copies of the account statements, a copy of the Affidavit of Collection of Small Estate, appellant's deposition testimony, and an affidavit from Gene Holloway, Sissy's credit manager.

In his affidavit, Mr. Holloway stated that Mr. Knight had an account with an outstanding balance of $6,085.89. He said that, upon learning of Mr. Knight's death, he contacted appellant, and she asked that any future statements be sent to her. On or about September 1, 2001, Mr. Holloway said that he received a check for $250 as payment toward the balance on the account. On March 31, 2002, after receiving no further payments, Mr. Holloway phoned appellant. He said that, during their phone conversation, appellant asked if she could return several pieces of jewelry in exchange for settlement of the account. He said that on May 16, 2002, he informed appellant that he was authorized to accept the return of certain pieces of jewelry in satisfaction of the debt. He stated that appellant agreed to return the jewelry in June 2002, but failed to do so.

Appellant failed to respond to the motion for summary judgment. On October 18, 2004, the trial court granted the motion for summary judgment and awarded Sissy's $6,085.89 (the amount owed on the account) plus $150 for court cost and $608 for attorney's fees. The court ordered that interest on the award would accrue at six percent per annum until the debt was paid in full. From that decision comes this appeal.

A trial 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. Young v. Gastro-Intestinal Ctr., Inc., Ark. , S.W.3d (Mar. 24, 2005). Summary judgment should not be granted where reasonable minds could differ as to the conclusions they could draw from the facts presented. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000) (citing Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994)). 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. Young v. Gastro-Intestinal Ctr., Inc., supra. However, summary judgment is not granted simply because the opposing party fails to respond to the motion for summary judgment. Inge v. Walker, supra (citing Brunt v. Food 4 Less, Inc., supra). The burden in a summary judgment proceeding is on the moving party and cannot be shifted when there is no offer of proof on a controverted issue. Id.

On appellate review, we determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered. O'Marra v. MacKool, Ark. , S.W.3d (Feb. 24, 2005). We view the evidence in the light most favorable to the non-moving party, resolving all doubts and inferences against the moving party. Id.

Appellant argues that the grant of summary judgment was in error because a genuine issue of fact exists with respect to whether appellant agreed to return certain pieces of jewelry in exchange for satisfaction of the debt. We agree. Sissy's submitted appellant'sdeposition testimony with its motion for summary judgment. Appellant's testimony contradicts the testimony of Sissy's credit manager. He asserts that the parties reached an agreement in regard to the return of certain pieces of jewelry in satisfaction of the debt, whereas, appellant testified that the parties had failed to reach such an agreement. When we view this evidence in a light most favorable to appellant, a genuine issue of material fact remained as to whether the parties agreed that appellant would return certain pieces of jewelry in exchange for settlement of Mr. Knight's account. The trial court, thereby, erred when it granted Sissy's motion for summary judgment. Accordingly, we reverse and remand.

Reversed and remanded.

Gladwin and Baker, JJ., agree.