Cite as 2025 Ark. 48 SUPREME COURT OF ARKANSAS No. CV-24-558
Opinion Delivered: April 24, 2025 MICHAEL W. GATES AND SUSAN J. GATES APPEAL FROM THE GARLAND APPELLANTS COUNTY CIRCUIT COURT [NO. 26CV-21-100] V. HONORABLE GARY M. ARNOLD, JUDGE JIM HUDSON, SECRETARY, AFFIRMED. DEPARTMENT OF FINANCE AND ADMINISTRATION OF THE STATE OF ARKANSAS APPELLEE
NICHOLAS J. BRONNI, Associate Justice
This case is about what Michael and Susan Gates owe in taxes. It started with the
Gateses’ failure to file individual or corporate tax returns between 2012 and 2017. Mr.
Gates eventually pled no contest to one count of failing to file or pay taxes, and he was
ordered to file tax returns for 2015, 2016, and 2017. The Department of Finance and
Administration (DFA) audited those returns and concluded that the Gateses had not properly
calculated their tax liability for all three years.
The Gateses disputed that determination and submitted additional documentation
concerning certain business expenses. DFA then reversed some of its deduction
disallowances, adjusted its calculations, and determined the Gateses owed a different amount.
The Gateses disputed that number too, and this lawsuit followed. Following discovery, the
circuit court held that DFA was entitled to summary judgment on the Gateses’ claim that DFA had improperly calculated their tax liability. This court reversed and remanded,
agreeing with the Gateses that DFA had failed to explain its math and thus had not carried
its prima facie burden of demonstrating the couple’s tax liability.
On remand, DFA introduced evidence detailing its disallowance decisions and
calculations. It moved for summary judgment again, and the circuit court granted that
motion based on this new evidence and the Gateses’ failure to meaningfully respond to that
evidence. We affirm.
Background
In August 2019, the Gateses filed their 2015, 2016, and 2017 tax returns, and
pursuant to an order in Mr. Gates’s criminal case, DFA audited those returns. As part of
that audit, DFA made two key adjustments to the Gateses’ net taxable income: (1) it added
additional 1099 income that it said the couple had not included on their returns; and (2) it
disallowed several deductions claimed by the couple’s S-corporation, Stonebridge
Collection, Inc. Those adjustments increased the Gateses’ tax liability. In response, the
Gateses requested the schedules supporting DFA’s adjustments. They then submitted both
documentation and a spreadsheet disputing many of the disallowances. DFA thereafter
reduced—but did not eliminate—its adjustments to the Gateses’ net tax liability.
Following the initial audit, DFA sent the Gateses several communications about their
tax liability. DFA intended those communications to clarify the situation, but as Gates I
explained, they had the opposite effect. Two sets of communications are relevant here.
First, after the Gateses submitted their documentation disputing the initial audit filings, on
August 13, 2020, DFA sent the Gateses three “Summary of Findings” documents. Each
2 summary covered a single year and detailed the Gateses’ adjusted taxable income and
corresponding tax liability. Second, just over a week later, on August 24, 2020, DFA sent
the Gateses three Amended and Corrected Notices of Final Assessment. Those notices
calculated what the Gateses owed for each year—combining the liability the Gateses had
reported on their original tax returns and DFA’s final adjustments as reflected in the August
13 summaries. Some back-and-forth followed, but as we noted in Gates I, communication
between DFA and the Gateses largely broke down.
Thereafter, on February 2, 2021, the Gateses filed this lawsuit under the Taxpayer
Procedure Act, arguing that DFA miscalculated their tax liability for 2015, 2016, and 2017.
Following discovery, DFA moved for summary judgment, which the circuit court granted.
The Gateses appealed.
On appeal, in Gates I, we concluded that DFA had failed to carry its prima facie burden
of establishing the Gateses’ tax liability and that, as a result, summary judgment was not
appropriate. Particularly relevant here, we explained that DFA had failed to show its math
or establish how it calculated the Gateses’ tax liability. Far from it, we noted that DFA had
not “show[n] which 1099 income it included or which business deductions it excluded”
from its calculations. Gates v. Walther, 2023 Ark. 74, at 5, 665 S.W.3d 217, 220. Without
that information, DFA could not establish the couple’s tax liability. Id.
On remand, DFA moved for summary judgment a second time. This time, DFA
supported its motion with an affidavit from Melissa Guin, DFA’s lead auditor. Her affidavit
detailed DFA’s income calculations and attached more than 50 exhibits documenting the
1099 income DFA included and the deductions it disallowed. DFA also attached the notices
3 the Gateses challenged—instead of DFA’s earlier, superseded notices. The Gateses
responded by arguing that DFA had failed to carry its prima facie burden, and they filed
thousands of pages of documents that they claimed supported that argument. Those
documents included the spreadsheet that the Gateses had sent in response to DFA’s initial
disallowance decisions, Stonebridge’s bank statements, receipts, and Stonebridge’s profit and
loss statements. Yet they did not explain how those documents undermined DFA’s
determinations or calculations.
Recognizing that, at the summary judgment hearing, the circuit court repeatedly
asked the Gateses to explain which calculations and disallowances they disputed and why.
The Gateses declined to do so. Instead, they simply insisted that their documents somehow
refuted DFA’s disallowances and argued that 1099s are not prima facie evidence of taxable
income.
The circuit court struck the Gateses’ exhibits on evidentiary grounds. But it
concluded that even if it considered those exhibits, DFA would still be entitled to summary
judgment because DFA had carried its prima facie burden of establishing the Gateses’ taxable
income and liability and the Gateses had failed to dispute any specific disallowance or
calculation.
The Gateses timely appeal.
Discussion
The Gateses seek reversal of the circuit court’s order granting DFA’s motion for
summary judgment. Summary judgment is appropriate “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
4 matter of law.” Scamardo v. Sparks Reg’l Med. Ctr., 375 Ark. 300, 305, 289 S.W.3d 903,
906 (2008). We review circuit court orders granting summary judgment de novo, viewing
the evidence in the light “most favorabl[e]” to the Gateses. Jackson v. City of Blytheville Civ.
Serv. Comm’n, 345 Ark. 56, 60, 43 S.W.3d 748, 751 (2001).1
1 An aside about the standard of review. This court has long reviewed summary judgement orders “de novo.” That is, we have not given lower court decisions on summary judgment any deference. The concurrence does not dispute that. Yet it treats the phrase de novo review like the name Voldemort, urging us not to say it. It is not clear why.
To be sure, on summary judgment, we view the evidence in the light most favorable to the non-moving party. But that is not a standard of review; it is the framework that we—and lower courts—use to evaluate summary judgment. A standard of review describes the level of deference we give a lower court’s decision. And the concurrence does not dispute that we do not give a lower court’s summary judgment decision any deference.
Acknowledging that hardly creates confusion. Far from it, it brings us in line with nearly every other jurisdiction. See, e.g., Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 466 (1992); Xia v. Scott, 129 F.4th 1084, 1087 (8th Cir. 2025); Ex parte Triad of Alabama, LLC, 396 So. 3d 191, 194 (Ala. 2024); Smith v. Dep’t of Corr., 564 P.3d 282, 288 (Alaska 2025); Perez v. Circle K Convenience Stores, Inc., 564 P.3d 623, 626 (Ariz. 2025); Bailey v. San Francisco Dist. Attorney’s Off., 552 P.3d 433, 439 (Cal. 2024); Univ. of Denver v. Doe, 547 P.3d 1129, 1134 (Colo. 2024); Hartford Fire Ins. Co. v. Moda, LLC, 288 A.3d 206, 211 (Conn. 2023); GMG Ins. Agency v. Edelstein, 328 A.3d 302, 309 (Del. 2024); Treasure Coast Marina, LC v. City of Fort Pierce, 219 So. 3d 793, 802 (Fla. 2017); Prodigies Child Care Mgmt., LLC v. Cotton, 893 S.E.2d 640, 643 (Ga. 2023); Jardine v. State, 556 P.3d 406, 414 (Haw. 2024); Kelso v. Applington, 548 P.3d 363, 367 (Idaho 2024); Zurich Am. Ins. Co. v. Infrastructure Eng’g, Inc., 248 N.E.3d 1072, 1080 (Ill. 2024); Indiana Dep’t of Ins. v. Doe, 247 N.E.3d 1204, 1210 (Ind. 2024); Benchmark Prop. Remodeling, LLC v. Grandmothers, Inc., 553 P.3d 974, 980 (Kan. 2024); State Auto Prop. & Cas. Co. v. Greenville Cumberland Presbyterian Church, 706 S.W.3d 35, 43 (Ky. 2024); Longo v. 700B8, 400 So. 3d 913, 914 (La. 2025); Att’y Gen. v. Pine Tree Council, Inc., 331 A.3d 258, 263 (Me. 2025); Rovin v. State, 321 A.3d 201, 217 (Md. 2024); Theisz v. Massachusetts Bay Transp. Auth., 252 N.E.3d 1028, 1032 (Mass. 2025); Danhoff v. Fahim, 15 N.W.3d 262, 270 (Mich. 2024); Reichel v. Wendland Utz, LTD, 11 N.W.3d 602, 612 (Minn. 2024); ACE Am. Ins. Co. v. Hetsco, Inc., 393 So. 3d 1015, 1021 (Miss. 2024); Sachtleben v. Alliant Nat’l Title Ins. Co., 687 S.W.3d 624, 629 (Mo. 2024); Kipfinger v. Great Falls Obstetrical & Gynecological Assocs., 525 P.3d 1183, 1193 (Mont. 2023); Galloway v. Husker Auto Grp., LLC, 14 N.W.3d 218, 223 (Neb. 2024); Controlled Chaos Inc. v. Arts Dist. Holdings LLC, 559 P.3d 361 (Nev. 2024); Szewczyk v. Cont’l Paving, Inc., 307 A.3d 502, 516 (N.H. 2023); Matter of Est. of Jones, 328 A.3d 923,
5 The Gateses seek reversal on three grounds. First, they argue that either collateral
estoppel or law of the case precludes DFA’s latest motion for summary judgment. Second,
they argue that even if that is not the case, genuine disputes of material fact remain
concerning the Gateses’ tax liability and that makes summary judgment inappropriate. And
third, they argue that the circuit court erred in striking their summary judgment exhibits.
We reject the first two arguments on the merits; do not reach the third; and affirm the
circuit court’s decision granting summary judgment.
Preclusion
The Gateses argue that Gates I’s finding that the record was insufficient to support
summary judgment prevents DFA from renewing its motion. They frame that claim as both
a collateral estoppel and law of the case argument. Neither applies.
Start with collateral estoppel. Collateral estoppel is an issue preclusion doctrine that
prevents parties from relitigating “issues of law or fact previously litigated by the parties.”
Palmer v. Arkansas Council on Econ. Educ., 344 Ark. 461, 471, 40 S.W.3d 784, 789 (2001).
929 (N.J. 2025); Ridlington v. Contreras, 501 P.3d 444, 448 (N.M. 2021); Dep’t of Transportation v. Bloomsbury Ests., LLC, 905 S.E.2d 36, 46 (N.C. 2024); City of Fargo v. State, 14 N.W.3d 902, 907 (N.D. 2024); Harris v. Hilderbrand, 224 N.E.3d 1118, 1124 (Ohio 2023); Marshall v. City of Tulsa, 558 P.3d 1220, 1225 (Okla. 2024); Khalil v. Williams, 278 A.3d 859, 871 (Pa. 2022); Blouin v. Koster, 319 A.3d 654, 659 (R.I. 2024); Remington v. Wild Bill’s Campground & Resort, LLC, 16 N.W.3d 252, 257 (S.D. 2025); Pharma Conf. Educ., Inc. v. State, 703 S.W.3d 305, 311 (Tenn. 2024); Inwood Nat’l Bank v. Fagin, 706 S.W.3d 342, 346 (Tex. 2025); Rossi v. Univ. of Utah, 496 P.3d 105, 111 (Utah 2021); In re Pederzani Admin. Appeal, 328 A.3d 1278, 1281 (Vt. 2024); GEICO Advantage Ins. Co. v. Miles, 879 S.E.2d 908, 910 (Va. 2022); Pub. Util. Dist. No. 1 of Snohomish Cnty. v. State, 562 P.3d 343, 347 (Wash. 2025); Potomac Comprehensive Diagnostic & Guidance Ctr., Inc. v. L.K. by Young, 902 S.E.2d 434, 442 (W. Va. 2024); Bauer v. Wisconsin Energy Corp., 970 N.W.2d 243, 247 (Wis. 2022); Sorensen v. Halling, 561 P.3d 1241, 1244 (Wyo. 2025); Onyeoziri v. Spivok, 44 A.3d 279, 283 (D.C. 2012).
6 For that doctrine to apply, four things must be true: “(1) the issue sought to be precluded
must be the same as that involved in the prior litigation; (2) [it] must have been actually
litigated; (3) it must have been determined by a valid and final judgment; and (4) the
determination must have been essential to the judgment.” Johnson v. Union Pac. R.R., 352
Ark. 534, 544, 104 S.W.3d 745, 750 (2003).
The Gateses cannot make that showing. DFA’s motion for summary judgment does
not attempt to relitigate an issue that was resolved in another, previous matter. There was
no previous matter—let alone one that proceeded to final judgment. Rather, DFA’s motion
is simply the latest skirmish in the same, ongoing litigation. So collateral estoppel does not
apply and did not prevent the circuit court from entering summary judgment on a new,
expanded record.
The law of the case doctrine, by contrast, does not require a prior judgment. See
United States v. Reyes-Romero, 959 F.3d 80, 93 (3d Cir. 2020) (issue preclusion only applies
“in a subsequent action” while law of the case controls “[r]elitigation of issues previously
determined in the same litigation” (emphasis in original) (internal citations omitted)); Entergy
Arkansas, Inc. v. Allen, 2021 Ark. App. 71, at 18, 618 S.W.3d 427, 438 (“Unlike law of the
case, collateral estoppel may bar a party from relitigating an issue decided against it in a later
and different case.” (internal citation omitted)). Instead, that doctrine “prohibits a court
from reconsidering issues of law and fact that have already been decided on appeal” in the
same matter. Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 970, 69 S.W.3d 383, 388 (2002);
accord Green v. George’s Farms, Inc., 2011 Ark. 70, at 7, 378 S.W.3d 715, 720 (“The doctrine
provides that a decision of an appellate court establishes the law of the case for the trial upon
7 remand and for the appellate court itself upon subsequent review.”). Thus, under that
doctrine, the circuit court could not reconsider our conclusion in Gates I that DFA bears
the initial burden of proving a taxpayer’s liability or our finding that the original record was
insufficient to support summary judgment. Gates, 2023 Ark. 74, at 4, 665 S.W.3d at 219.
But that is not what happened here. Instead, following our guidance in Gates I, DFA
introduced new evidence—Guin’s affidavit and its accompanying exhibits—and the circuit
court concluded that new evidence filled the evidentiary gap that had previously precluded
summary judgment. That is, it explained DFA’s calculations and established “the total
amounts of taxable income that [DFA] had calculated for 2015, 2016, and 2017.” Id. at 6,
665 S.W.3d at 220. And the law of the case doctrine does not prevent DFA from
supplementing the record and renewing its motion based on that new evidence. See
Cannady v. St. Vincent Infirmary Med. Ctr., 2018 Ark. 35, at 7, 537 S.W.3d 259, 264
(subsequent depositions made it appropriate for the employer to seek summary judgment a
second time on remand); Yeschick v. Mineta, 675 F.3d 622, 633 (6th Cir. 2012) (affirming
grant of second summary judgment motion despite prior remand based on genuine dispute
of material fact). Moreover, that is true even though, as the Gateses argue, much of the rest
of the record remained unchanged. See Green, 2011 Ark. 70, at 9, 378 S.W.3d at 721 (the
test is not whether the moving party added enough new evidence, but rather, whether the
new evidence is “sufficiently material to overcome the law-of-the-case doctrine”).
So neither collateral estoppel nor law of the case doctrine precluded the circuit
court’s order.
8 Summary Judgment
The Gateses also challenge the merits of the circuit court’s summary judgment
decision. We apply a burden shifting framework to summary judgment, and to prevail
under that framework, the movant must make a prima facie showing that it is entitled to
judgment and that no genuine dispute of material fact exists. Flentje v. First Nat. Bank of
Wynne, 340 Ark. 563, 569, 11 S.W.3d 531, 536 (2000). If the movant makes that showing,
the burden then shifts to the respondent to “meet proof with proof by showing a material
issue of fact” that would preclude summary judgment. Oxford v. Perry, 340 Ark. 577, 581–
82, 13 S.W.3d 567, 570 (2000). In making that showing, a respondent is not entitled to
simply repeat allegations but must “set forth specific facts showing that there is a genuine
issue for trial.” Ark. R. Civ. P. 56(e); see Flentje, 340 Ark. at 569, 11 S.W.3d at 536 (“When
the movant makes a prima facie showing . . . , the respondent must discard the shielding
cloak of formal allegations and meet proof with proof . . . .”). If the respondent does not
make that showing, then the movant is entitled to judgment.
We likewise employ a burden shifting approach to resolve tax cases, requiring DFA
to carry an initial burden of demonstrating tax liability by a preponderance of the evidence
and then shifting the burden to the taxpayer to “prov[e] any deductions.” Gates, 2023 Ark.
74, at 4, 665 S.W.3d at 219; accord Leathers v. A & B Dirt Movers, Inc., 311 Ark. 320, 325,
844 S.W.2d 314, 316 (1992) (“The agency claiming the right to collect a tax bears the
burden of proving that the tax law applied to the item sought to be taxed.”); Weiss v. Am.
Honda Fin. Corp., 360 Ark. 208, 213, 200 S.W.3d 381, 384 (2004) (“A tax deduction is
9 allowed only as a matter of legislative grace and one claiming the deduction bears the burden
of proving that he is entitled to it.”).
Melding those standards, Gates I explained that to prevail on summary judgment
here, DFA must first “meet its prima facie burden” by “prov[ing] the Gateses’ net taxable
income and resulting tax liability for 2015–2017.” Gates, 2023 Ark. 74, at 4, 665 S.W.3d
at 219. That requires DFA to show “which 1099 income it included” in its calculations as
well as “which business deductions it excluded” in calculating the Gateses’ tax liability. Id.
at 4, 665 S.W.3d at 220. If DFA does so, the burden then shifts to the Gateses to meet
proof with proof and demonstrate a genuine dispute concerning DFA’s calculations or
disallowances.
Applying that approach, the circuit court held that DFA had met its burden and the
Gateses had failed to meet proof with proof. Reviewing that decision de novo and viewing
the evidence in the light most favorable to the Gateses, we affirm.
A. DFA’s Prima Facie Burden
As the circuit court concluded, DFA carried its initial burden of demonstrating the
Gateses’ net income and tax liability for 2015, 2016, and 2017.
In Gates I, we concluded that DFA had failed to carry its prima facie burden “because
the math in the record [did] not add up” and DFA had failed to explain how it calculated
the Gateses’ net taxable income or liability. Id. at 4–5, 665 S.W.3d at 220. To the contrary,
the record at that point merely showed that DFA had sent the Gateses communications
reflecting different amounts and claimed that the adjustments reflected in those
communications were the result of “some income shown on 1099 forms” and the rejection
10 of some, unidentified deductions. Id. at 5, 665 S.W.3d at 220 (emphasis in original). That
required reversal of the circuit court’s previous order.
DFA has now remedied that deficiency. In stark contrast to the record in Gates I,
Guin’s affidavit makes it possible to track DFA’s calculation of the Gateses’ net taxable
income and corresponding tax liability. Take 2015 as an example. As illustrated in the chart
below, Guin’s affidavit identifies $91,138 in disallowed deductions and $36,234 in 1099
income above that reported on the Gateses’ tax return. When these numbers are added
together, it equals DFA’s adjustment to the Gateses’ net taxable income—$127,372. And
as the August 13, 2020 Summary of Findings for the 2015 tax year illustrate, that
adjustment—when added to the Gateses original return—results in a tax liability of $23,864.
That figure matches the tax liability listed on the August 24, 2020 Amended and Corrected
Notice of Final Assessment for 2015 that the Gateses challenge here. 2 And as the chart
below also illustrates, Guin’s affidavit makes it similarly easy to track DFA’s calculations for
2016 and 2017.
Disallowed 1099 Net Income Tax Liability Tax Liability Deductions Income Adjustments (Summary) (Notice) (Affidavit) Added (Summary) (Affidavit) Tax Year $91,138 $36,234 $127,372 $23,864 $23,864 2015 Tax Year $68,101 $25,771 $93,872 $17,262 $17,262 2016
2 The Gateses argue that DFA cannot rely on the Summary of Findings documents to establish their net taxable income because those documents were superseded by later-issued Amended and Corrected Notices of Final Assessment. But no one argues those Summary of Findings documents establish the Gateses’ final tax liability. Instead, they merely summarize the calculations supported by Guin’s affidavit.
11 Tax Year $76,409 $14,654 $91,063 $13,061 $13,061 2017
Critically, Guin’s affidavit also explains why DFA rejected certain deductions and
included additional income in its calculations. That affidavit includes more than 50 exhibits
documenting every deduction transaction that DFA disallowed and showing what additional
1099 income DFA included in calculating the Gateses’ final tax liability. For instance, taking
another example from 2015, those exhibits show that among the $91,138 in deductions that
DFA disallowed for that year, DFA rejected the Gateses’ deduction for $229.28 in purchases
from a hardware store on July 6, 2015, because it lacked proper documentation. This level
of detail is precisely what Gates I explained was required for summary judgment. So DFA
has met its prima facie burden, and the burden shifts to the Gateses to demonstrate that
genuine disputes of material fact remain.
B. The Gateses’ Rebuttal
The Gateses fail to carry their burden on rebuttal. To show a genuine dispute
remains, the Gateses point to what they term a “tsunami of documents” supporting their
deduction claims. But documents—tsunamis or otherwise—do not entitle litigants to a trial,
only specific facts do. And the Gateses do not point to specific facts.
The Gateses do not explain how any specific document raises a genuine issue of
material fact about whether DFA improperly disallowed a particular deduction. In fact,
when the circuit court asked the Gateses to pick a disallowance and explain why they
disagreed with DFA’s conclusions, the Gateses declined. Instead, they responded
generically, claiming they disagreed with every disallowance that DFA concluded was
12 unsupported by documentation and that their “tsunami of documents” supported their
position. Likewise, before this court, the Gateses failed to point to any specific evidence
suggesting that DFA had erred in disallowing a deduction—substituting slogans like “the
math still ain’t mathing” for evidence. Oral Argument at 3:20 (Mar. 6, 2025), archived at
https://perma.cc/M9JS-DBUA. Gates v. Walther, 2025 Ark. 48 (No. CV-24-558).
At best, the Gateses’ general citation to a “tsunami of documents” suggests they
believe it is the court’s role—not the Gateses’—to search the record and identify issues of
material fact that might preclude summary judgment. That suggestion conflicts with Rule
56’s plain language, the burden-shifting framework we apply to resolve summary judgment
disputes, and the party-presentation principle. See Ark. R. Civ. P. 56(e) (requiring
nonmovant to respond with specific facts); Flentje, 340 Ark. at 569, 11 S.W.3d at 536
(explaining that the respondent bears the burden of meeting proof with proof); Cypert v.
State, 2025 Ark. 11, at 6, 705, S.W.3d 496, 499 (explaining that pursuant to the party-
presentation principle, this court only reviews matters briefed and argued by the parties).
Indeed, courts do not have an “affirmative obligation to plumb the record in order to find
a genuine issue of material fact.” Barge v. Anheuser–Busch, Inc., 87 F.3d 256, 260 (8th Cir.
1996) (applying federal equivalent); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(respondent must “designate” specific facts under federal equivalent); Richards v. Combined
Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995) (“It is not our task, or that of the district
court, to scour the record in search of a genuine issue of triable fact.”); Keenan v. Allan, 91
F.3d 1275, 1279 (9th Cir. 1996) (same); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672
(10th Cir. 1998) (“[W]here the burden to present such specific facts . . . was not adequately
13 met below, we will not reverse a district court for failing to uncover them itself.”). Rather,
to avoid summary judgment, it was the Gateses’ responsibility “to point out genuine issues
of material fact” and “bring such issues to the attention of the court.” Bennett v. Dr
Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002).
We therefore reject any suggestion in this court’s prior case law 3 that a respondent
may sit “secure in the knowledge that the [trial] court would be required to excavate all of
the presented record, and find for itself any nuggets of evidence that might demonstrate
genuine issues of material fact.” Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 405 (6th
Cir. 1992); see also Comm’r of Labor v. Danco Constr. Co., 226 Ark. 797, 799, 294 S.W.2d
336, 337 (1956) (it is not this court’s role “to make an individual search of the record, . . .
in the absence of proper references thereto, in order to arrive at a decision, and it is not
practical to do so”). Rather, we reiterate that it is the respondent’s duty to point to specific
facts demonstrating genuine issues remain and that generic references to the record are not
sufficient to meet that burden. See Foscue v. McDaniel, 2009 Ark. 223, at 12–14, 308 S.W.3d
122, 128–29.
In the end, the Gateses had every opportunity to pick one receipt, bank statement,
or other document showing that DFA improperly calculated their net taxable income or
liability. They declined to do so. We thus conclude that they have failed to point to any
evidence demonstrating that they carried their burden of meeting proof with proof.
3 See Franklin v. Osca, Inc., 308 Ark. 409, 412, 825 S.W.2d 812, 814 (1992).
14 Evidentiary Issues
We do not reach the Gateses’ argument that the circuit court erred in striking their
summary judgment exhibits. The circuit court concluded that even if it considered those
exhibits—the so-called “tsunami of documents” here—it would not preclude summary
judgment. As set forth above, we reach the same conclusion and therefore need not reach
the Gateses’ evidentiary objections. See Bayird v. Floyd, 2009 Ark. 455, at 11, 344 S.W.3d
80, 87 (refusing to review arguments for reversal of summary judgment where lack of facts
made examination of those arguments unnecessary).
Conclusion
DFA carried its burden of proving the Gateses’ net income and tax liability, and the
Gateses failed to meet proof with proof and demonstrate that any genuine disputes of
material fact remained. We affirm the circuit court’s order granting DFA’s motion for
summary judgment.
Affirmed.
BAKER, C.J., and HUDSON and WOMACK, JJ., concur.
COURTNEY RAE HUDSON, Justice, concurring. I join the majority opinion in
all respects except its statement that “[w]e review circuit court orders granting summary
judgment de novo, viewing the evidence in the light ‘most favorabl[e]’ to the Gateses.
Jackson v. City of Blytheville Civ. Serv. Comm’n, 345 Ark. 56, 60, 43 S.W.3d 748, 751 (2001).”
Notably, Jackson does not state that this court reviews orders granting summary judgment
15 de novo. No Arkansas case does.1 We have long reviewed orders granting summary
judgment as follows:
The law is well settled regarding the standard of review used by this court in reviewing a grant of summary judgment. A circuit court will grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. 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. In reviewing a grant of summary judgment, an appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party.
Stokes v. Stokes, 2016 Ark. 182, at 8–9, 491 S.W.3d 113, 119–20 (emphasis added) (internal
citations omitted). This language, or a substantially similar version of it, has been our
standard of review for decades. E.g., Hendrix v. Mun. Health Benefit Fund, 2022 Ark. 218, at
7, 655 S.W.3d 678, 682; Nationwide Mut. Fire Ins. Co. v. Citizens Bank & Tr. Co., 2014
Ark. 20, at 3–4, 431 S.W.3d 292, 294; K.C. Props. of Nw. Ark., Inc. v. Lowell Inv. Partners,
LLC, 373 Ark. 14, 280 S.W.3d 1 (2008); Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563,
568–70, 11 S.W.3d 531, 535–36 (2000); Stockton v. Sentry Ins., 337 Ark. 507, 510–11, 989
S.W.2d 914, 916 (1999); Reagan v. City of Piggott, 305 Ark. 77, 81, 805 S.W.2d 636, 638
(1991); Rowland v. Gastroenterology Assocs., P.A., 280 Ark. 278, 280, 657 S.W.2d 536, 537
(1983). Indeed, regardless of whether we call the above language a “standard of review,” as
1 Of course, this court reviews issues of law de novo, whether in the context of summary judgment or not. Walther v. Welspun Tubular, LLC, 2021 Ark. 90, at 4–5, 622 S.W.3d 146, 148 (stating that we review issues of law requiring statutory interpretation de novo); Mississippi Cnty. v. City of Blytheville, 2018 Ark. 50, at 10, 538 S.W.3d 822, 829 (as to issues of law presented in an appeal from the grant of summary judgment, our review is de novo).
16 this court has for many years, or a “framework,” as the majority does in its footnote, the
point remains that “de novo” review of summary judgment appears for the first time in this
case.
In this case, the parties did not argue for a departure from our standard-of-review
language; the majority makes this change sua sponte. In my view, it is unwise—and
potentially confusing to the bench and bar—to deviate from our long-settled standard of
review in summary-judgment cases. Therefore, I respectfully concur.
BAKER, C.J., joins.
SHAWN A. WOMACK, Justice, concurring. I join the majority’s decision to
affirm because the Gateses failed to meet proof with proof in response to DFA’s motion
for summary judgment. I write separately to address the circuit court’s decision to strike
the vast majority of the Gateses’ exhibits, which they had attached to their response in
opposition.
Although the Gateses claimed at oral argument that they had addressed DFA’s motion
to strike in their response to DFA’s motion for summary judgment, this is impossible because
DFA did not move to strike the exhibits until after the Gateses had responded. Because the
Gateses never challenged DFA’s motion to strike below, their argument on this issue is not
preserved for appeal.2 Nevertheless, there is a serious underlying issue with how this played
out below that, while unpreserved and not proper for inclusion in a majority opinion, I will
address in this concurrence.
2 C.J. Mahan Constr. Co. v. Betzner, 2021 Ark. 42, at 9.
17 Arkansas Rule of Civil Procedure 12(f) governs motions to strike. The rule provides
that, upon motion of a party or the court’s own initiative, “the court may order stricken
from any pleading any insufficient defense or any redundant, immaterial, impertinent or
scandalous matter.”3 Because exhibits to summary judgment motions are not pleadings,
they cannot be stricken pursuant to Rule 12(f).
When asked about this issue at oral argument, DFA contended that exhibits to
summary judgment responses are pleadings “because a motion for summary judgment is a
pleading.” This is wrong. By rule, pleadings consist of complaints, answers, counterclaims,
answers to counterclaims, cross-claims, answers to a cross-claim, third-party complaints, and
third-party answers.4 Pleadings do not include, as DFA claims, motions for summary
judgment, the responses in opposition, or any exhibits attached to either. “Pleadings” is a
precise legal term with a specific meaning—it does not include everything that is filed in a
case. Therefore, to the extent the circuit court struck the Gateses’ exhibit pursuant to Rule
12(f), that was error. However, because the Gateses failed to contest DFA’s motion to strike
below, DFA is still entitled to summary judgment.
I respectfully concur.
DeWitt Law, PC, by: Tyler H. DeWitt and Clinton L. DeWitt, for appellants.
Keith K. Linder, Bradley B. Young, and Michelle L. Baker, Office of Revenue Legal
Counsel, for appellee.
3 Ark. R. Civ. P. 12(f) (emphasis added). 4 Ark. R. Civ. P. 7(a).