## Facts

- Mona B. Sloop, individually and as trustee of the Mona B. Sloop Revocable Trust, agreed in writing to purchase a house and approximately 134.5 acres in Newton County, Arkansas, from Sally Ann Kiker and Russell L. Kiker, individually and as trustees of their respective revocable trusts.
- The sale contract set a purchase price of $850,000 and required a $350,000 down payment “nonrefundable” upon execution, with the remaining $500,000 due on or before January 1, 2013.
- The contract also stated that if closing did not occur on or before August 31, 2013, the contract would be null and void, the sellers would retain the down payment, and Sloop would have to vacate the property if she was occupying it.
- The sale contract, standing alone, did not contain a sufficient legal description of the property and did not clearly identify the trust sellers as “sellers” within the four corners of the contract.
- On the same day the contract was executed, the parties also executed a warranty deed that identified the Kiker trusts as grantors and supplied a full legal (metes-and-bounds) description of the property.
- The parties further executed a lease/caretaker agreement that allowed Sloop to live on the property while she worked toward paying the $500,000 balance, subject to the contract’s August 31, 2013 deadline.
- Sloop paid the $350,000 down payment and took possession in 2012, but she did not pay the remaining $500,000 by January 1, 2013.
- Before the August 31, 2013 deadline, Sloop told the Kikers she would not be able to pay the balance by that date either.
- The Kikers listed the property for sale in July 2013; the listing ended shortly after the August 31 deadline without a successful sale.
- After August 31, 2013, the Kikers served Sloop with notice to vacate based on expiration of the caretaker arrangement and her failure to meet the payment deadline, asserting she had forfeited the $350,000 nonrefundable down payment.
- The Kikers sued in circuit court seeking removal of Sloop from the property and a declaration that they were entitled to retain the down payment; Sloop counterclaimed for return of the $350,000 and argued (among other theories) that the contract was void under the statute of frauds.
- The circuit court granted summary judgment to the Kikers. Sloop appealed.

## Issues

1. Whether the real-estate sale contract was unenforceable under the Arkansas statute of frauds because it did not sufficiently describe the property or properly identify the trust sellers, despite a warranty deed executed the same day.
2. Whether the contract was too uncertain or ambiguous (given the payment dates and related provisions) to support summary judgment enforcing the August 31, 2013 deadline.
3. Whether the clause allowing the sellers to retain the $350,000 “nonrefundable” down payment upon failure to close by August 31, 2013 was unenforceable as a penalty.
4. Whether Sloop’s argument that the Kikers waived the August 31, 2013 deadline was preserved for appellate review.

## Decision

- The Arkansas Court of Appeals affirmed the circuit court’s grant of summary judgment to the Kikers.
- The court held the statute of frauds was satisfied because instruments executed at the same time, by the same parties, for the same transaction may be read together; the contemporaneous deed supplied both the sellers’ trust identities and a legally sufficient property description.
- The court rejected Sloop’s claim that the contract was void for uncertainty or ambiguity and treated August 31, 2013 as the controlling final deadline reflected in the parties’ conduct and the written terms.
- The court left intact the judgment permitting the Kikers to retain the $350,000 nonrefundable down payment under the contract’s express forfeiture language.
- The court declined to reach the merits of Sloop’s waiver argument because it was not preserved for review where the written summary-judgment order did not rule on waiver; the written order controlled.

## Legal Principles

- Instruments executed contemporaneously by the same parties as part of one transaction are construed together when determining whether the statute of frauds is satisfied.
- A land-sale writing meets the statute of frauds if, from the writings read together, the property can be identified with reasonable certainty (including where the writing provides a means to identify the land and a contemporaneous deed provides the full legal description).
- Arkansas law disfavors invalidating contracts for uncertainty when the agreement contains a clear final deadline and the parties treated that deadline as controlling.
- For appellate review, an oral discussion at a hearing does not preserve an issue absent a ruling reflected in the written order; the written order governs.
- Summary judgment is proper when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law, including when the dispositive contract terms are unambiguous.

## Conclusion

In *Sloop v. Kiker*, the Arkansas Court of Appeals affirmed summary judgment for the sellers, holding that the sale contract and a same-day warranty deed could be read together to satisfy the statute of frauds by identifying the trust sellers and supplying a sufficient property description, enforcing the contract’s August 31, 2013 final deadline and resulting forfeiture of the $350,000 nonrefundable down payment, and refusing to address waiver because the written summary-judgment order did not preserve that issue for appeal.


Sloop v. Kiker, 2016 Ark. App. 125 (2016)