Brenda K. Covington, M.D. v. St. Vincent Infirmary Medical Center

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

BRENDA K. COVINGTON, M.D.

APPELLANT

V.

ST. VINCENT INFIRMARY MEDICAL CENTER

APPELLEE

CA04-466

April 13, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CV 02-7404]

HON. BARRY ALAN SIMS, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Brenda Covington appeals the decision of the Pulaski County Circuit Court granting summary judgment in favor of St. Vincent Infirmary Medical Center ("St. Vincent"). Covington argues that summary judgment was inappropriate because genuine issues of material fact were unresolved. We disagree and affirm.

Covington, along with The Winston Clinic, P.A. and Scott Winston, M.D., collectively executed a Secured Promissory Note ("Note") on September 1, 1996, in which they agreed to be jointly and severally liable for funds advanced by St. Vincent to them under the terms of the Net Pre-Tax Income Guarantee Agreement ("Agreement"), which the parties also executed on September 1, 1996. Under the Agreement, St. Vincent was only to advance funds when "collections" minus "reasonable operating expenses," as defined in the Agreement, fell below the level necessary to pay appellant's guaranteed salary.

On July 18, 2002, St. Vincent filed a complaint against Covington seeking $87,445.07 on the Note, plus all interest that had accrued since April 1999. In her answer, Covington stated that she began her employment with The Winston Clinic in September 1996 and did not recall signing either that Note or the Agreement. She stated that she never received a check from St. Vincent, and she ceased her employment with the clinic in October 1997.

On March 28, 2003, St. Vincent filed a motion for summary judgment and attached exhibits showing disbursements in accordance with the loan from September 1996 through September 1997. These exhibits illustrated that there was no activity on the loan from October 1997 through January 1998. The records also indicated that loan payments were made in varying amounts from February 1998 through April 1999. Also attached to St. Vincent's motion were portions of Covington's deposition where she stated that she had signed both the Note and Agreement, did not know the terms of either document, and had no evidence to rebut or contest the debt.

The trial court found that there were no genuine issues of material fact outstanding and granted summary judgment for St. Vincent in the amount of $111,537.68, including the amount due on the Note, interest from the date of the judgment, attorney's fees of $500, and costs of $150. Covington filed a timely notice of appeal.

Motions for summary judgment are governed by Ark. R. Civ. P. 56, which provides that a party may move with or without supporting affidavits for a summary judgment upon all or any part of a claim. 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. Ginsburg v. Ginsburg, 353 Ark. 816, 120 S.W.3d 567 (2003). The moving party has the burden of showing that there is no genuine issue of material fact, all proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993).

In considering a motion for summary judgment, a court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, to determine whether there is a genuine issue of material fact and whether the moving party is entitled to summary judgment. Muddiman v. Wall, 33 Ark. App. 175, 803 S.W.2d 945 (1991). The moving party is not automatically entitled to summary judgment simply because no affidavits were filed in response to a motion. Id. at 177, 803 S.W.2d at 947. Rather, once the moving party has demonstrated prima facie that no material issue of fact remains, the defending party must respond, showing facts which would be admissible in evidence to create a factual issue. Rankin v. City of Fort Smith, 337 Ark. 599, 990 S.W.2d 535 (1999). When a summary-judgment motion includes attached affidavits, the non-moving party cannot rely on a bare denial or contrary allegation but must meet proof with proof. Id. at 605, 990 S.W.2d at 538; Ark. R. Civ. P. 56(e). On appeal, we view the evidence in the light most favorable to the one against whom summary judgment was granted and determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Id. at 604, 990 S.W.2d at 538.

In the present case, Covington's response to the motion for summary judgment included no attachments. Although this does not automatically result in the grant of St. Vincent's summary-judgment motion, because it attached the Note and Agreement to its motion, as well as documentation showing the disbursement of funds, Covington was charged with producing some evidence that the funds were not advanced to her. Once St. Vincent established that there was an agreement and a debt and that Covington was jointly and severally liable for that debt, Covington was required to respond and show that the funds were never disbursed or that her collections never dipped below the level necessary to require such a disbursement. She failed to do this in her response to the motion and provided only bare denials that she ever received money from St. Vincent. She did not meet proof with proof. Based on the fact that Covington did not provide any proof in her response to the motion to counter St. Vincent's showing that there were no material facts in dispute, we are satisfied that the trial court did not err in granting the motion for summary judgment.

Affirmed.

Hart and Crabtree, JJ., agree.