Lonnie B. Burden v. Stephen L. Oyler

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CA01-188

SEPTEMBER 26, 2001

LONNIE B. BURDEN AN APPEAL FROM THE BENTON

APPELLANT COUNTY CIRCUIT COURT

v. [CIV-98-868-2]

STEPHEN L. OYLER HON. DAVID S. CLINGER,

APPELLEE CIRCUIT JUDGE

AFFIRMED

Appellant, Lonnie B. Burden, appeals from an award of summary judgment to appellee, Stephen L. Oyler, d/b/a Oyler & Co., by the Benton County Circuit Court. Appellant brought suit to recover $9,000 arising from a check written to appellee, on the ground that the check was a loan. In his motion for summary judgment, appellee asserted that the check alone was insufficient to establish that a loan was created and that the witnesses to the transaction had no knowledge of a loan agreement being created. In its order granting summary judgment, the circuit judge found that no genuine issues of material fact existed. On appeal, appellant argues the trial court erred in granting appellee's motion for summary judgment, as the evidentiary items presented by appellee in support of its motion left a material question of fact not answered. We agree with thefindings of the circuit court and affirm its ruling.

The facts establish that on August 24, 1994, appellant gave appellee a check for $9,000. Appellant alleges the check was actually a loan. When appellant made a demand for repayment, appellee refused. On December 14, 1998, appellant filed suit to recover the $9,000. Appellee filed a motion for summary judgment on January 24, 2000, alleging the check was not a written loan contract, there was no unconditional promise to pay money, the canceled check was not evidence of an enforceable loan contract, and that there were no issues of material fact to litigate. Appellee supported his motion for summary judgment with the affidavits of Cindy Oliver, appellant's ex-wife, and Scott Campbell, appellee's employee. Oliver and Campbell both stated that to the best of their knowledge no loan agreement was created on August 24, 1994. In response to the motion, appellant argued that the canceled check was evidence of an oral loan contract. Appellant stated that his ex-wife had the original check and had knowledge of a $750 repayment by appellee. Appellant further stated that his ex-wife gave a statement in an unrelated matter that would provide evidence that the check was a loan. Appellant also argued that the canceled check was sufficient evidence to shift the burden of proof to appellee. The parties waived oral arguments and submitted the matter to the court to be decided on the written motions and briefs. The trial court granted appellee's motion for summary judgment finding that there were no genuine issues of material fact to be litigated.

On appeal, appellant argues the trial court erred in granting appellee's motion for summary judgment, as the evidentiary items presented by appellee in support of his

motion left material questions of fact not answered. A trial court's grant of summary judgment is proper when it is clear there are no issues of material fact to be tried. Tackett v. McDonald's Corp., 68 Ark. App. 41, 3 S.W.3d 340 (1999). Once the moving party makes a prima facie showing of entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. See Plant v. Wilbur, 345 Ark. __, __ S.W.3d __ (July 9, 2001) (quoting Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000)). On appellate review, we determine if the grant of summary judgment was proper based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Holytrent Prop. v. Valley Park Ltd., 71 Ark. App. 336, 32 S.W.3d 27 (2000). We view pleadings, affidavits, documents, and exhibits filed in support of a motion for summary judgment in the light most favorable to the non-moving party. Tackett, supra. After reviewing the undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts. Plant, supra (quoting Worth v. City of Rogers, 341 Ark. 12, 14 S.W.3d 471 (2000)).

We believe that appellant failed to meet proof with proof and demonstrate the existence of a material issue of fact. In order for a check to be actionable it must be in the nature of a note. First State Bank & Trust Co. v. Sledge, 29 Ark. App. 77, 777 S.W.2d 227 (1989). A note consists of an absolute and unconditional promise to pay money. Id. A promise is an undertaking to pay but it must be more than an acknowledgment of an obligation. Id.

Appellant admits that he does not have the original check. Appellant states he hasa copy of the check; however, he did not abstract or append a copy of the check for our review. Therefore, we have no tangible proof that the check contained a promise to pay money. Appellant fails to offer any other proof that the check was a note. In their affidavits, the witnesses to the transaction stated that they had no knowledge of a loan agreement being created. Appellant asserted that his ex-wife made statements in an unrelated matter that would provide evidence that the check was a loan, but he failed to include a transcript of that proceeding.

Appellant also failed to offer any proof that a contract was created. In order to make an oral or written contract, there must be a meeting of the minds as to all the essential elements of a contract. See New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S.W.2d 772 (1928); Hunt v. McIlroy Bk. & Tr., 2 Ark. App. 87, 616 S.W.2d 759 (1981). The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and (5) mutual obligations. Here, not only did appellant fail to produce a writing establishing an agreement, he also failed to establish that there was an oral agreement. In this transaction, there was no evidence that there was a meeting of the minds as to the essential elements of a contract.

After viewing the pleadings, affidavits, documents and exhibits filed in support of the motion for summary judgment in a light favorable to appellant, reasonable men would not reach a different conclusion from that of the trial court. We hold that appellant failed to meet proof with proof, therefore, there were no issues of material fact to litigate. The trial court's grant of summary judgment is affirmed.

Affirmed.

Stroud, C.J., and Griffen, J., agree.