Tasha Renee Wade and Kevin Knight v. Bruce Bartley

2020 Ark. App. 136, 596 S.W.3d 555

• Court: Court of Appeals of Arkansas
• Decided: February 26, 2020
• Status: Published

Opinion

Cite as 2020 Ark. App. 136 Reason: I attest to the accuracy and integrity of this document ARKANSAS COURT OF APPEALS Date: 2021-07-01 12:00:14 DIVISION III Foxit PhantomPDF Version: 9.7.5 No. CV-19-444

Opinion Delivered: February 26, 2020

TASHA RENEE WADE AND KEVIN KNIGHT APPEAL FROM THE PULASKI APPELLANTS COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION V. [NO. 60CV-18-3001]

BRUCE BARTLEY APPELLEE HONORABLE MACKIE M. PIERCE, JUDGE

REVERSED AND REMANDED

RITA W. GRUBER, Chief Judge

Appellants Tasha Renee Wade and Kevin Knight1 appeal from an order of the Pulaski

County Circuit Court granting summary judgment to appellee Bruce Bartley. Bartley filed

a complaint against his former employee, Wade, and her husband, Knight, alleging fraud,

conversion, unjust enrichment, breach of fiduciary duty, civil conspiracy, and replevin for

stealing money and certain financial records from Bartley. Because genuine issues of material

fact remain to be decided, we reverse and remand for further proceedings.

I. Standard of Review

Our standard of review is well established. Summary judgment should be granted

only 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. Akers v. Butler, 2015 Ark. App. 650,

1 Wade and Knight began dating sometime in 2016 and were married in March 2018. 476 S.W.3d 183. On appeal, 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. Id. With this standard in mind, we turn to the evidence presented by the parties in

their affidavits and other documents filed in connection with the summary-judgment

motion.

II. Facts

In July 2015, Bartley hired Wade to serve as his personal assistant. Wade’s

responsibilities included managing Bartley’s business and personal affairs, paying Bartley’s

bills, and managing his office. As his assistant, Wade had access to Bartley’s bank accounts

to pay bills and expenses on Bartley’s behalf. From January through April 2018, Wade was

often absent from work. After receiving what Bartley described as a “suspicious text” from

Wade in April 2018 while Bartley was out of town, he asked a friend to stop by his office

and check on things. According to Bartley, the friend discovered that files and records had

been removed from his office and that his computer had been “wiped.” Other than Bartley,

Wade was the only person with access to the office.

Bartley immediately hired a forensic accountant to conduct a fraud investigation on

his accounts. The accountant’s report indicated that beginning in July 2015, Wade had been

transferring funds from Bartley’s accounts to Wade’s personal accounts, using Bartley’s bank

accounts for her own personal purchases, and charging her personal expenses on Bartley’s

credit cards. In June 2016, Wade also transferred $17,000 of Bartley’s funds to Mint Title

Company in Austin, Texas, where Knight lived and worked as a real estate agent. The

2 accountant determined that Wade had taken a total of $453,456.21 from Bartley over the

course of her employment.

III. Procedural History

On May 9, 2018, Bartley filed a complaint against Wade and Knight alleging fraud

and breach of fiduciary duty against Wade and conversion, unjust enrichment, and civil

conspiracy against both Wade and Knight for taking his funds without authorization while

representing to Bartley that Wade used Bartley’s funds solely to manage and pay Bartley’s

expenses. He also alleged a count for replevin against Wade and Knight, contending that

they had removed all papers and files from his office and requesting their immediate return.

Appellants’ answer generally denied all allegations, though it specifically provided that if

Bartley “has a right to his papers, defendants will agree to return them.”

On October 24, 2018, Bartley moved for summary judgment on all claims. He

attached his own affidavit stating that he had hired Wade in July 2015 as a personal assistant

to manage his business and personal affairs, which included paying his bills. He said that only

he and Wade had access to his office where he “housed” all his personal and business

documents and records. He alleged that Wade was never authorized to use any of his funds

for personal expenses and that she was permitted use of his funds solely to pay his bills or

other expenses on his behalf. He alleged that from January through April 2018, Wade was

often absent from work, and after receiving what he described as a “suspicious text” from

Wade in April 2018, he asked a friend to stop by his office and check on matters. The friend

discovered that files and records had been removed from Bartley’s office and that his

3 computer had been “wiped.” He said he engaged Frost, PLLC, to perform a review of his

financial accounts.

He also attached to his motion the accounting-investigation report, which concluded

that Wade had expended $453,456.61 from Bartley’s accounts. Attached to the report were

itemized account records detailing $253,000 in electronic cash transfers from April 2017

through April 2018 from Bartley’s operating account at Regions Bank to three Regions

accounts not owned by Bartley; over $120,000 in charges from July 2015 through March

2018 from three of Bartley’s accounts for restaurants, clothing, travel, iTunes, makeup, salon

services, electronics, home furnishings, groceries, rent, and other nonauthorized expenses;

and thousands of dollars for similar unauthorized charges on several of Bartley’s credit cards.

Bartley also attached the affidavit of Cheryl F. Shuffield, the accountant who

performed the forensic review of Bartley’s accounts and prepared the report. She stated that

her accounting firm, Frost, PLLC, had been engaged by Bartley in April 2018 to perform a

review of his financial accounts “after he discovered that an employee of his, Ms. Tasha

Wade, had attempted to steal funds from his accounts and that she had been making false

representations to Mr. Bartley, his accountant, Regions Bank employees, and others.” Ms.

Shuffield explained the schedules attached to her report of bank transfers, expenditures, and

credit-card charges, stating that they comprised lists of “fraudulent expenditures by Ms.

Wade from Mr. Bartley’s account[s]” and stating that the credit cards used by Wade were

opened in Bartley’s name without his knowledge or permission.

On November 26, 2018, appellants filed a response, attaching Wade’s affidavit.

Wade’s affidavit is seven pages long and includes twenty-six paragraphs, not all of which we

4 find pertinent to our review. Wade attached no exhibits to her affidavit. We set forth the

following statements that we consider relevant:

Neither Kevin nor I have ever defrauded Bruce Bartley. We deny all allegations and we deny that anything was done about his money without his knowledge. I’ve read his affidavit, and I deny all allegations that I stole anything. He was aware of charges, and he let me do it. More specifically:

1. Within days of starting work for Mr. Bartley, he called me over to his house to help him with his iPad and upon unlocking it and him handing it to me, he had erect pictures of a penis on the screen. I don’t know who was in the pictures nor to whom they belonged to nor did I ask. This was extremely offensive and was sexual harassment. It could only have been intentional on his part.

2. I immediately told him how angry I was and how I would not tolerate such behavior because it created a sexual hostile work environment. I walked back to the office to gather my things and leave. He followed, apologized repeatedly, and asked what he could do to rectify the situation. That’s when he and I came up with our agreement as to how I would be monetarily compensated for his actions. Thus, I never used a single penny that Mr. Bartley wasn’t aware of.

3. I do not, however, have personal possession of the document that Mr. Bartley and I agreed to when Mr. Bartley first sexually harassed me. I have not been able to leave Austin, Texas to obtain it because my son has been recovering from open heart surgery and because of the holiday weekend. My son was just cleared last Monday but was still put on another two weeks of light restriction before he can start doing more on his own. I have made arrangements for his care and will try to have the document in my possession as soon as possible. Mr. Bartley, however, also has a copy of this agreement.

4. I was to be paid a minimum of $120,000 per year. Some in the form of a payroll payment, and some in the form of direct charges that he permitted that were not fraudulent at all. Mr. Bartley agreed that anything under that amount would be carried over yearly and that anything over would be discussed with him before being spent. I was also to be paid from each property’s account, depending on what and how much work I was doing for each property. I was also paid additional salaries from the main account by Mr. Bartley occasionally because he would work me for months straight without a day off.

In paragraphs five through seventeen, Wade generally alleges that Bartley was

unkind, controlling, and difficult to work for. These allegations are not specifically relevant

5 to the issues before us. Finally, Wade alleges that she does not “have a single document of

Mr. Bartley’s”; that all the new credit-card accounts were opened by Mr. Bartley; that their

agreement provided that neither party would tell anyone else about the agreement; that

Knight did not know about the agreement; and that Knight had nothing to do with

“anything related to Mr. Bartley.” While Bartley filed a reply to Wade’s response, arguing

that Wade’s claims in her affidavit were “outlandish,” claiming that her audacity to allege

the existence of an “unidentified document” that would resolve the claims was

“unbelievable,” and specifically denying the existence of “any document evidencing such

an agreement,” Bartley did not attach an affidavit or other exhibit to the response denying

or disputing Wade’s claims.

The circuit court scheduled a hearing on the motion for summary judgment for

January 2, 2019, at 10:00 a.m. Two and a half hours before the hearing, appellants filed an

exhibit to Wade’s affidavit that was alleged to have been in her safe-deposit box. The exhibit

is a one-page document bearing Bartley’s name and address at the top and dated July 6,

2015. It is allegedly signed by Bartley, but not by Wade, and purports to be an agreement

between Bartley and Wade to compensate Wade “in lieu of a public, sexual harassment case

against Bartley” for Bartley’s actions that were described in detail in Wade’s affidavit. The

document contains details about the parties’ alleged financial arrangement thereafter.

The court found that the exhibit was not timely presented and did not consider it

when ruling on Bartley’s motion. The court conducted a hearing on Bartley’s motion for

summary judgment and entered an order on January 28, 2019, granting the motion on all

counts and awarding Bartley judgment against Wade and Knight, jointly and severally, in

6 the amount of $453,456.21. The court also found that Bartley was entitled to immediate

possession of the papers and files that appellants had removed from his office. A timely appeal

followed.

IV. Summary Judgment

On appeal, appellants argue that the circuit court erred in granting Bartley’s motion

for summary judgment because Wade’s affidavit was sufficient to meet proof with proof on

all his claims. Appellants also contend that the court abused its discretion in not considering

the agreement between the parties that Wade provided on the day of the hearing. Because

we agree that Wade’s affidavit raised genuine issues of material fact and thus that summary

judgment was not appropriate in this case, we do not address Wade’s argument regarding

the court’s failure to consider her last-minute exhibit.

The burden of sustaining a motion for summary judgment is always the responsibility

of the moving party. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531

(2000). Further, all proof submitted must be viewed favorably to the party resisting the

motion, and any doubts and inferences must be resolved against the moving party. Dodson

v. Allstate Ins. Co., 365 Ark. 458, 463, 231 S.W.3d 711, 715 (2006). When the movant

makes a prima facie showing of entitlement, the respondent must meet proof with proof by

showing a genuine issue as to a material fact. Id. Summary judgment is not proper, however,

where evidence, although in no material dispute as to actuality, reveals aspects from which

inconsistent hypotheses might reasonably be drawn and reasonable minds might differ.

Williams v. Ark. Dep’t of Corr., 362 Ark. 134, 207 S.W.3d 519 (2005). The object of

summary-judgment proceedings is not to try the issues, but to determine if there are any

7 issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Dodson,

365 Ark. at 63, 231 S.W.3d at 715.

Fraud, conversion, and civil conspiracy are intentional torts; breach of fiduciary duty

involves self-dealing without the consent of the other party; and the unjust-enrichment

claim in this case depends upon Wade’s having stolen or misappropriated Bartley’s funds.

Morris v. Knopick, 2017 Ark. App. 225, at 13, 521 S.W.3d 495, 504; DC Xpress, L.L.C. v.

Briggs, 2009 Ark. App. 651, at 7, 343 S.W.3d 603, 607; Buck v. Gillham, 80 Ark. App. 375,

96 S.W.3d 750 (2003); SeaChange Int’l, Inc. v. Putterman, 79 Ark. App. 223, 228, 86 S.W.3d

25, 28 (2002). Bartley’s causes of action require proof that Wade’s use of Bartley’s funds was

wrongful and without his consent.

The parties do not appear to dispute that Wade took the money from Bartley’s

account for her personal expenses. The dispute is whether Wade had permission or consent

from Bartley. Wade argues that her affidavit raises a genuine issue of material fact regarding

whether the money she spent was pursuant to an agreement between her and Bartley, thus

negating all his claims against her. Wade specifically states in her affidavit that she did not

take Bartley’s money without his knowledge; that he was aware of all her charges; and that

he allowed them because the parties had entered into an agreement to compensate her for

Bartley’s inappropriate behavior.

Bartley contends that Wade’s affidavit is conclusory and self-serving and is insufficient

to create a genuine issue of material fact. We disagree. Although many of Wade’s allegations

are self-serving and irrelevant to the claims against her, her affidavit is not entirely

conclusory. The allegations set forth above create a fact question for a fact-finder regarding

8 the reason for and possible legitimacy of her expenditures. In order to grant Bartley’s

motion, the court had to weigh Wade’s credibility, make fact findings about her intent, and

determine whether Wade’s expenditures were made with Bartley’s consent or agreement.

When there are genuine questions of material fact with regard to a party’s intent, summary

judgment is improper. Dodson, 365 Ark. at 463, 231 S.W.3d at 715. Moreover, summary

judgment is not proper where it is necessary to weigh the credibility of statements to resolve

an issue. Adams v. Wolf, 73 Ark. App. 347, 353, 43 S.W.3d 757, 762 (2001).

With regard to the claims against Knight, we hold that Bartley’s motion for summary

judgment presented no evidence that Knight’s involvement amounted to conversion, unjust

enrichment, or civil conspiracy. The only evidence Bartley presented was that Wade

transferred Bartley’s funds to a title company in Austin, Texas, where Knight lived and that

Wade wrote checks for thousands of dollars from her personal account to Knight. Bartley

provided no evidence that the wire transfer to the title company involved Knight or that

Knight knew the checks he received from Wade were funded from Bartley’s accounts. His

receipt of checks from his fiancée’s account, without more, is not evidence of conversion,

unjust enrichment, or conspiracy. When the proof supporting a motion for summary

judgment is insufficient, there is no duty on the part of the opposing party to meet proof

with proof. Druyvestein v. Gean, 2014 Ark. App. 559, at 6, 445 S.W.3d 529, 532.

Finally, we turn to Bartley’s replevin claim for the return of the papers and files

allegedly removed from his office. In their answer to Bartley’s complaint, appellants denied

all counts, including Bartley’s claim for replevin. After their general denial of all allegations,

appellants made the following statement: “If, however, plaintiff has a right to his papers,

9 defendants will agree to return them.” In Bartley’s affidavit attached to his motion for

summary judgment, he alleged that all his personal, financial, health-care, tax, and other

records and documents were in his office and that only he and Wade had access to the office.

He also alleged that he discovered in April 2018 that his files had been removed from the

office. Wade alleged in her affidavit that she did not have Bartley’s documents. As with the

other issues discussed herein, these are factual disputes and are better suited for resolution in

trial. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

VIRDEN and KLAPPENBACH, JJ., agree.

John Wesley Hall and Sarah M. Pourhosseini, for appellants.

Rose Law Firm, a Professional Association, by: David S. Mitchell, Jr., and Madison

Throneberry, for appellee.