Arloe Designs, LLC v. Arkansas Capital Corp.

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SUPREME COURT OF ARKANSAS
No. CV-13-158

ARLOE DESIGNS, LLC Opinion Delivered January 23, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. CV-11-2484]

ARKANSAS CAPITAL HONORABLE WENDELL L.
CORPORATION AND NATIONAL GRIFFEN, JUDGE
BANK OF ARKANSAS
APPELLEES AFFIRMED.

KAREN R. BAKER, Associate Justice

This appeal stems from litigation between Arloe Designs, LLC (Arloe) and Arkansas

Capital Corporation (ACC) and National Bank of Arkansas (NBA). We affirm.

Arloe is an Arkansas business owned and operated by Marshal L. Jacobs. It specializes

in the design, refurbishing, manufacture, and installation of aircraft interiors for small aircraft.

In 2007, Jacobs put together a proposal to expand Arloe’s operation to include exterior aircraft

paint and servicing. In order to expand his operation, Jacobs proposed to build a 4900 square

foot building at the North Little Rock Municipal Airport. In order to facilitate financing,

Jacobs offered to provide a cash-equity infusion and a $100,000 bond as additional collateral.

Arloe contends that ACC and NBA were to work together in a joint venture to

procure the loan for Arloe. ACC is an Arkansas nonprofit set up to secure niche funding for

Arkansas Small businesses. ACC prepared a document styled “loan proposal” that did not

include the requirement of the bond as collateral. This document specifically stated that it
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“did not constitute a contractual commitment of ACC to make a loan on these or any other

terms.”

NBA sent a letter to Arloe on August 20, 2007, which stated that NBA had approved

financing for the construction of the building. However, the letter stated that the approval

was subject to several conditions, including the assignment of the lease from the North Little

Rock Airport Commission and that the lease must be transferrable. Arloe entered into a 30-

year lease for the new hangar in October, 2007. The terms of the lease prohibited the lease

from being assigned.

Arloe asserts that on October 25, 2007, Jacobs was informed that NBA would not

close the loan without the bond as collateral. Arloe did not give the bond as collateral, and

so the loan was not closed.

Arloe filed suit against ACC and NBA, alleging that ACC’s and NBA’s actions were

a breach of contract, violated the ADTPA, were negligent, and that Arloe had reasonably

relied on the promise of NBA and ACC to its detriment. Arloe claimed damages equal to the

lost profits it would have received had the loan been given and had it been able to expand its

business as planned.

ACC and NBA filed motions for summary judgment, asserting that Arloe’s claims

failed as a matter of law because it could not prove with reasonable certainty that the

expansion of its business would have made a profit, because there was no contract, that there

was no actionable claim for negligence because NBA and ACC owed no duty to Arloe, and

because the ADTPA did not apply. The circuit court granted NBA and ACC’s motions for

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summary judgment as to all but Arloe’s promissory estoppel claim, and limited damages for

that claim to the money that Arloe had spent in reliance on the claimed promise. The circuit

court also granted NBA and ACC’s motion in limine to exclude the testimony of Steven

Schroeder. Arloe had proffered the expert testimony of Steven Schroeder to show that

Arloe’s proposed expansion would have been profitable.

At trial, the jury found that Arloe had not proved that either NBA or ACC had made

a promise to loan Arloe money. Arloe brought this timely appeal and asserts five points on

appeal: (1) that the circuit court erred in granting summary judgment on Arloe’s breach-of-

contract claim; (2) that the circuit court erred in granting summary judgment on Arloe’s

negligence claim; (3) that the circuit court erred in granting summary judgment on Arloe’s

ADTPA claim; (4) that the circuit court erred in limiting damages on Arloe’s promissory

estoppel claim; and (5) that the circuit court erred in finding that Arloe’s lost profit damages

were barred. We have jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(b)(5).

Summary judgment is to be granted by a circuit court only when it is clear that there

are no genuine issues of material fact to be litigated, and the party is entitled to judgment as

a matter of law. Tillman v. Raytheon Co., 2013 Ark. 474, ___ S.W.3d ___. Once the moving

party has established a prima facie case of entitlement to summary judgment, the opposing

party must meet proof with proof and demonstrate the existence of a material issue of fact.

Id. 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. Id. We view the evidence in the light most favorable to the party

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against whom the motion was filed, resolving all doubts and inferences against the moving

party. Id. Our review focuses not only on the pleadings, but also on the affidavits and

documents filed by the parties. Id.

For its first point on appeal, Arloe contends that the circuit court erred in granting

summary judgment on its breach-of-contract claim. Arloe asserts that ACC and NBA did

breach their contract, and that there is a material question of fact that an enforceable contract

existed. We disagree.

In Williamson v. Sanofi Winthrop Pharmaceuticals, Inc., 347 Ark. 89, 60 S.W.3d 428

(2001), we said “it is well settled that in order to make a contract there must be a meeting of

the minds on all terms, using objective indicators.” This court employs an objective test for

determining mutual assent. See Ward v. Williams, 354 Ark. 168, 118 S.W.3d 513 (2003). The

proposal ACC sent to Arloe specifically states that it “IS NOT INTENDED TO AND

DOES NOT CREATE A LEGALLY BINDING COMMITMENT OR OBLIGATION.”

Further, just above the signature line on page 8 of the proposal, it states “The undersigned

understands that this letter does not constitute a contractual commitment of ACC to make

a loan on these or any other terms, and any representation to the contrary is hereby expressly

disclaimed.” Here, the objective indicators show that ACC did not assent to an contract to

lend money to Arloe. Therefore there is no question that this document did not create a

legally binding contract to lend.

The circuit court found that the August 20, 2007 letter constituted evidence that NBA

had approved financing for the building. However, this approval was subject to several

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conditions, including that the lease be transferrable. It is uncontested that the lease Arloe

entered into was not transferrable. Because an express condition of the approval was not met,

there was no contract. See Carter v. Cline, 2011 Ark. 474, 385 S.W.3d 745.

Arloe formed no contract with either ACC or NBA, therefore the circuit court did

not err in granting summary judgment against Arloe for its breach-of-contract claim.

For its second point on appeal, Arloe asserts that the circuit court erred in granting

ACC and NBA’s motion for summary judgment on its negligence claim. The circuit court

found that ACC and NBA owed no duty of care to Arloe. The question of the duty owed

to the plaintiff alleging negligence is always one of law and never one for the jury. D.B.

Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 76 S.W.3d 254 (2002). If the court finds that

no duty of care is owed, the negligence count is decided as a matter of law. Id.

Arloe contends that the issue before this court is whether a bank owes a duty to

borrowers on a loan transaction. Arloe asserts that a duty can arise either from a contract or

a relationship, and that the duty here arose from the parties’ relationship. In order for a duty

of care to exist between a bank and a potential borrower, the relationship between the bank

and the borrower must be either fiduciary or special in nature, beyond a routine debtor-

creditor relationship. See Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997).

Arloe was not a borrower on a loan transaction, because no contract to lend was

formed, as shown above. Arloe has also brought forward no evidence to show that there was

a special or fiduciary relationship between it and either ACC or NBA. In fact, the circuit

court specifically found that Arloe and ACC and NBA entered into arms-length negotiations

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for a commercial loan which did not come to fruition and that there was no evidence to

indicate that there was a relationship of special trust and confidence. Therefore, the circuit

court did not err in granting summary judgment against Arloe for its negligence claim.

For its third point on appeal, Arloe asserts that the circuit court erred in granting

summary judgment on it’s claims under the ADTPA. The circuit court ruled that the

ADTPA did not apply as a matter of law. Arkansas Code Annotated section 4-88-101 (Repl.

2011) states:

This chapter does not apply to:
...
(3) Actions or transactions permitted under laws administered by the Insurance
Commissioner, the Securities Commissioner, the State Highway Commission, the
Bank Commissioner, or other regulatory body or officer acting under statutory
authority of this state or the United States, unless a director of these divisions
specifically requests the Attorney General to implement the powers of this chapter.

ACC is an Arkansas nonprofit and is subject to the supervision, examination, and

control of the Arkansas State Bank Commissioner and the Arkansas State Board of Finance.

NBA is a national bank and is regulated by the Office of the Comptroller of Currency and

the Federal Deposit Insurance Commission. Because both ACC and NBA are regulated by

a regulatory body acting under statutory authority of Arkansas or of the United States, their

actions and transactions are not subject to claims that can be brought under the ADTPA

unless a specific request has been made to the Attorney General. Arloe has not provided any

evidence that such a request has been made. Therefore, we hold that the circuit court did not

err in dismissing Arloe’s claims under the ADTPA.

For its next point on appeal, Arloe asserts that the circuit court erred in limiting its

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recovery on its promissory estoppel claim. However, this point is moot. The interrogatories

given to the jury stated:

Do you find that Arloe Designs, LLC has proven that Arkansas Capital Corporation
made a promise to loan money to Arloe Designs, LLC?

and

Do you find that Arloe Designs, LLC has proven that National Bank of Arkansas made
a promise to loan money to Arloe Designs, LLC?

The jury answered no to both of these interrogatories. Because the jury found that there was

no promise for Arloe to rely on to its detriment, Arloe could not have received any damages

from this claim.

For its final point on appeal, Arloe asserts that the circuit court erred in ruling that its

lost-profit damages were not recoverable. In general, damages recoverable for breach of

contract are those damages that would place the injured party in the same position as if the

contract had not been breached. Optical Partners, Inc. v. Dang, 2011 Ark. 156, 381 S.W.3d

46. Damages must arise from the wrongful acts of the breaching party. Id. Consequential

damages are defined as “[s]uch damage, loss or injury as does not flow directly and

immediately from the act of the party, but only from some of the consequences or results of

such act.” Id. (quoting Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 604–05, 864 S.W.2d

817, 825 (1993)). Lost profits are recognized as a type of consequential damages. Id.

Although recovery will not be denied merely because the amount of damages is hard to

determine, damages must not be left to speculation and conjecture. Id.

The circuit court found that Arloe’s lost-profit damages were not recoverable because

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the lost profit damages were too speculative. The circuit court further found that Arloe’s

claims were barred by the new-business rule applied by this court in Marvell Light & Co. v.

Gen. Elec. Co., 162 Ark. 467, 259 S.W. 741 (1924). The new-business rule prohibits a new,

never before operational business from recovering anticipated profits, as such damages are too

remote, speculative, and uncertain to support a judgment for their loss. Arloe contends that

the new-business rule should no longer be the law in Arkansas and asks that we overrule

Marvell. We do not reach this point, however, as Arloe’s assertions are moot.

In order for Arloe to claim lost-profit damages, it must first demonstrate that ACC and

NBA committed a wrongful act. It has not done so. Summary judgment was granted as to

each of Arloe’s claims, leaving no cause of action to show that ACC and NBA committed a

wrongful act under which Arloe can claim consequential damages.

Based on the discussion above, we hold that Arloe’s claims that the circuit court erred

in denying it recovery for lost profit damages and limiting its damages on its promissory-

estoppel claim are moot. We affirm the circuit court’s finding that summary judgment was

proper in regard to Arloe’s breach-of-contract, negligence, and ADTPA claims.

Affirmed.

Eichenbaum Liles, P.A., by: James H. Penick, III, for appellant.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: John Keeling Baker; and
Foland, Wickens, Eisfelder, Roper & Hofer, P.C., by: David W. White and Abbigale A.
Gentle, Pro Hac Vice, for appellee Arkansas Capital Corporation.

Davidson Law Firm, by: Stephen L. Gershner and Charles Darwin “Skip” Davidson, for
appellee National Bank of Arkansas.

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