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ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-14-565
GEORGE WILCOX and WILCOX Opinion Delivered February 4, 2015
INVESTMENT LIMITED
PARTNERSHIP APPEAL FROM THE PULASKI
APPELLANTS COUNTY CIRCUIT COURT,
SEVENTEENTH DIVISION
V. [NO. 60CV-2011-6220]
HONORABLE MACKIE M. PIERCE,
BRAD H. WOOLEY, Individually; JUDGE
BRAD H. WOOLEY AUCTIONEERS,
INC.; RUSSELL HUCKABY, AFFIRMED
Individually; UNITED COUNTRY-
MARKET STATION REAL ESTATE &
AUCTIONEERS; and WOOLEY &
HUCKABY AUCTIONEERS & LAND
BROKERS, LLC
APPELLEES
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.
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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
1
Shollmier is not a party to this appeal.
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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.
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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
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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.
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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)
2
Arkansas Code Annotated section 17-17-112(a) provides in part that “[a]n auctioneer
may not sell the property of another at auction without a prior written contract with the
seller which sets forth the terms and conditions upon which the auctioneer will sell the
property.”
3
Section 1812.608(d) provides in pertinent part as follows:
In addition to other requirements and prohibitions of this title, it is a violation
of this title for any person to do any of the following:
....
(d) Sell goods at auction before the auctioneer or auction company involved
has first entered into a written contract with the owner or consignor of the goods,
which contract sets forth the terms and conditions upon which the auctioneer or
auction company accepts the goods for sale. . . .
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(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 that there was an oral modification failed for lack of consideration
for the modification. The general rule is that there must be additional consideration when the
parties to a contract enter into an additional contract. Crookham & Vessels, Inc. v. Larry Moyer
Trucking, Inc., 16 Ark. App. 214, 699 S.W.2d 414 (1985). According to Wilcox, there was
consideration in the form of mutual promises that Wilcox would not cancel the auction on
the day before in exchange for the Auctioneers’ promise to halt the auction if the expected
bids were not received. Although mutual promises may be adequate consideration to uphold
a contract, the promise must have value to the party agreeing to the change; if no benefit is
received by the obligee except what he was entitled to under the original contract, and the
other party to the contract parts with nothing except what he was already bound for, there
is no consideration for the additional contract. Feldman v. Fox, 112 Ark. 223, 164 S.W. 766
(1914); Capel v. Allstate Ins. Co., 78 Ark. App. 27, 77 S.W.3d 533 (2002). As our supreme
court has said,
[i]f, without legal justification, one party to a contract breaks it, or threatens to break
it, and to induce performance on his part, the adversary party promises to pay more
than was originally agreed upon, no consideration is given for the promise; when the
party who threatens to break the contract finally performs, he does no more than he
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was bound in law to do.
Feldman, 112 Ark. at 226, 164 S.W. at 767; see also Youree v. Eshaghoff, 99 Ark. App. 4, 256
S.W.3d 551 (2007) (quoting Feldman); Crookham & Vessels, supra (same). That is exactly what
Wilcox was attempting to do when he said he wanted to cancel the auction on the day before
the sale.
Finally under this point, there is no merit to the argument that Wilcox and the
Auctioneers agreed to an oral modification of the auction contract and that the Auctioneers
breached the modified contract by proceeding without authority. However, George Wilcox’s
testimony confirms that the Auctioneers did have the authority to proceed with the sale. He
testified that he was not alarmed when Kaye told him that the auction had started and
assumed that the Auctioneers must have received a bid over the phone. He continued:
What am I going to do? Have my daughter go over and ask him what he was doing.
I said, hire a man to sell your property for you, and you get a little nervous and you
get your confidence back. I had no reason to stop any sale. I had no reason.
Both George Wilcox and Kaye Wilcox admitted that they did not direct the Auctioneers to
halt the auction. This testimony not only fails to create a genuine issue of material fact under
Ark. R. Civ. P. 56(c) but also contradicts the allegations in count I of Wilcox’s amended
third-party complaint that such directions were given. Our courts have affirmed summary
judgments when the plaintiff/appellant makes a pivotal admission that goes to the heart of the
case. See, e.g., Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997); Sublett
v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997); Bushong v. Garman Co., 311 Ark. 228, 843
S.W.2d 807 (1992); King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990). The same is true
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here of Wilcox’s admission that he failed to direct the Auctioneers to halt the sale.
We next address Wilcox’s argument that the circuit court erred in granting summary
judgment on the indemnity claim. The basis for indemnity where, as here, there is no express
indemnity contract is liability based upon an implied or quasi-contract. Larson Mach., Inc. v.
Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980).
Wilcox argues that he is entitled to proceed on his indemnity claim without a written
agreement because he is a faultless principal subjected to liability by reason of the faulty
conduct of his agent. See Elk Corp. of Ark. v. Builders Transp., Inc., 862 F.2d 663 (8th Cir.
1988). In that case, the Eighth Circuit determined that the courts have applied the doctrine
of indemnity in two situations where no express contract was applicable: (1) imputed or
vicarious liability and (2) product liability. Id. at 666–67. However, Wilcox’s claim cannot
arise by operation of law under either of these theories. First, the circuit court noted that this
is not a case involving vicarious liability. Wilcox, despite his argument that he would not be
facing suit had the Auctioneers not mishandled the sale, is not being sued by the buyer
Shollmier for the wrongful actions of the Auctioneers. Instead, Wilcox is being sued for his
own failure to complete the purchase agreement for the sale of the property. Second, this
obviously is not a product-liability case.
Wilcox also argues that there is a special relationship with the Auctioneers by which
the relationship and duty created an implied right of indemnity. We disagree. The cases
Wilcox cites in support of this argument, Intents, Inc. v. Southwestern Electric Power Co., 2011
Ark. 32, 376 S.W.3d 435, and Smith v. Paragould Light & Water Commission, 303 Ark. 109,
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793 S.W.2d 341 (1990), both involved statutory schemes which our supreme court found
sufficient to support a right of indemnity. In the present case, Wilcox argues that the standard
of care for a broker (and presumably an auctioneer selling real property) of ordinary care4
creates such an implied right of indemnity. However, as pointed out earlier, Wilcox is not
being sued for vicarious liability; he is being sued for failure to complete the sale. Under
these facts, there is no right to indemnity in this case.
For his fifth point, Wilcox argues that the circuit court erred in granting summary
judgment on his promissory-estoppel claim. The court granted summary judgment on the
basis that Wilcox could not pursue a promissory-estoppel claim when there was a written
contract between the parties. See Taylor v. George, 92 Ark. App. 264, 212 S.W.3d 17 (2005).
Wilcox does not address the circuit court’s ruling that promissory estoppel cannot be asserted
when there is a written contract between the parties. Instead, Wilcox’s argument simply
asserts that promissory estoppel is an alternative basis of recovery to a breach-of-contract
claim and that he presented sufficient proof of the oral modification of the written contract.
However, “[p]romissory estoppel is not to be used as a vehicle to engraft a promise on a
contract that differs from the written terms of the contract.” See Mickens v. Corr. Med. Servs.,
Inc., 395 F. Supp. 2d 748, 752–53 (E.D. Ark. 2005). That is exactly what Wilcox is
attempting to do—add new promises to the auction contract. We find no error.
Wilcox’s final point is that the Auctioneers breached a duty by not halting the auction
4
See Edwards v. Pennino, 276 Ark. 380, 382–83, 635 S.W.2d 246, 248 (1982) (quoting
94 A.L.R.2d 468 (1964) and adopting the standard set forth by this court in Townsend v. Doss,
2 Ark. App. 195, 618 S.W.2d 173 (1981)).
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once they perceived collusion among the bidders. In his response to the Auctioneers’ motion
for summary judgment, Wilcox argued that there was a disputed issue of whether the
Auctioneers breached their duty by continuing the sale after perceiving collusion. In both
its letter opinion and order granting summary judgment, the circuit court found that this
issue was not material to Wilcox’s claims against the Auctioneers but that it would be
dispositive on Shollmier’s claim for specific performance against Wilcox. We now know
from the final judgment that the issue of collusion was impliedly resolved against Wilcox by
the jury in finding that Wilcox breached the purchase agreement.
Wilcox does not address the circuit court’s actual ruling. Instead, he continues the
argument made below that the issue is whether the Auctioneers breached a duty to him. As
authority, Wilcox cites our decision in Townsend, supra, where we adopted the standard of
ordinary care for a real-estate broker. However, that standard does not show that the
Auctioneers had a duty to halt the sale once any possible collusion arose. We will not address
assignments of error unsupported by citation to supporting legal authority. Henry v. Mitchell,
2013 Ark. 246, 428 S.W.3d 454.
Affirmed.
KINARD and BROWN, JJ., agree.
Newland & Associates, PLLC, by: Joel F. Hoover and Ashley D. Peoples, for appellants.
Lax, Vaughan, Fortson, Jones & Rowe, P.A., by: Grant E. Fortson, for appellees.
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