Killian v. Gibson
2012 Ark. App. 299
| Ark. Ct. App. | 2012Background
- Killian appeals a trial court order granting partial summary judgment to Gibson on a breach of oral contract claim and awarding Gibson $206,192.02 on a counterclaim.
- Oral agreement began in 2004: Killian to act as general contractor for Gibson on condominium projects, paid on a cost-plus basis (5% or 10%).
- Gibson allegedly defaulted on payments; Killian obtained a $351,840.37 loan that Gibson was to reimburse; Gibson promised $15,000 monthly payments beginning January 2008.
- Plaintiff claimed total owed was $1,077,840.37 after crediting a land grant of Lot 2 ($161,796.64) and Lot 1 value ($200,000) and other credits.
- Gibson’s partial summary-judgment motion listed payments totaling $14,948,837.12; Killian’s discovery response listed $14,026,601.82; dispute centers on credits and additional sums.
- Appellate history involved multiple orders, savings statute issues, and a final September 6, 2011 order with Rule 54(b) certification; appeal pursued under Ark. R. App. P.-Civ. 4(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper given genuine issues of material fact | Killian claims material facts remain about Lot 1/2 credits and loan, precluding judgment | Gibson contends evidence shows total overpayments and credits entitle judgment | Yes, summary judgment proper; no genuine issues of material fact remain |
| Whether the court properly applied the Dillard ‘proof with proof’ standard | Killian argues Dillard is distinguishable but supports need for proof with proof | Gibson contends the court correctly required affirmative proof beyond pleadings | Yes, court properly applied standard; no reversible error in reliance on Rule 56(e) principles |
| Whether the grant was an abuse of discretion due to a pending forensic accounting motion | Killian argues accounting was necessary and continuance warranted | Gibson asserts no abuse and that four-month window for accounting elapsed without request | No abuse; trial court did not err in denying continuance or accounting |
Key Cases Cited
- McGhee v. Ark. State Bd. of Collection Agencies, 368 Ark. 60 (2006) (summary judgment standard; no genuine issues of material fact required)
- Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563 (2000) (proof with proof; Rule 56(e) compliance guidance)
- Dillard v. Resolution Trust Co., 308 Ark. 357 (1992) (non-moving party must present affirmative proof beyond pleadings)
- Hamilton v. Allen, 100 Ark.App. 240 (2007) (Rule 56(f) continuance discretion for discovery)
- Tissing v. Ark. Dep't of Human Servs., 2009 Ark. 166 (2009) (jurisdictional notice of appeal and timing considerations)
- Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563 (2000) (see above (duplicate entry kept for emphasis))