Old Republic Insured Financial Acceptance Corporation v. Odis Williams and Katie Mae Rodgers

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

OLD REPUBLIC INSURED

FINANCIAL ACCEPTANCE

CORPORATION

APPELLANT

V.

ODIS WILLIAMS and KATIE MAE

RODGERS

APPELLEES

CA 02-59

SEPTEMBER 25, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

THIRD DIVISION, [NO. CV 201-635]

HONORABLE JOHN C. WARD,

JUDGE

REVERSED AND REMANDED

Appellant Old Republic Insured Financial Acceptance Corporation appeals the entry of summary judgment in favor of appellees Odis Williams and Katie Mae Rodgers. Appellees filed suit on January 23, 2001, in the Pulaski County Circuit Court to collect alleged overpayments due them from appellant regarding a home-improvement loan and installment contract in the original amount of $17,500. Appellees moved for summary judgment, appellant responded, and a hearing was conducted, after which the Pulaski County Circuit Court trial judge entered judgment in appellees' favor in the amount of $10,171.09 plus costs and attorney's fees. The circuit judge denied appellant's request for findings of fact and conclusions of law. Appellant filed a timely notice of appeal. Appellant argues on appeal that the circuit judge erred (1) in entering summary judgment when there remained genuine issues of material fact, and (2) in refusing to issue findings of fact and conclusionsof law as required by Ark. R. Civ. P. 52. We agree with appellant's first argument and reverse and remand. The second point on appeal is moot.

Before addressing appellant's arguments, we examine the undisputed facts. On May 14, 1984, appellees contracted for the construction of home improvements to a house located at 2323 Battery Street in Little Rock, Arkansas. A promissory note was executed, secured by a mortgage on the property being improved. The promissory note provided for 180 monthly payments of $260.24 each, beginning sixty days after the certificate of completion was signed. The completion date of December 5, 1984, and the terms of the loan, including the schedule of expected payments and the late-payment penalty, were not in dispute. However, the dates of posting of payments, the allocation of payments to principal and interest, and the accrual of late payments, were in dispute.

The loan was serviced by a savings and loan association during the first ten years, then by Resolution Trust Company (as receiver of the defaulting savings and loan), and finally by appellant when it purchased the loan from the receiver in September 1995. By 2001, appellees believed that they had overpaid the loan and were owed a refund, but appellant believed that there continued to be a balance owing. These discrepancies led to each party calculating that monies were owed to the other.

Appellees filed suit on January 23, 2001, seeking to recover overpayments made on the note. Appellant answered the complaint and denied that appellees were entitled to any

such recovery. Appellant responded that appellees instead owed appellant. Appellees filed a motion for summary judgment, and to it attached affidavits of appellee Williams and Richard Dahlgren, a bookkeeper and escrow assistant. Dahlgren swore that he prepared an amortization schedule and payment schedule based upon appellees' bank documents and interviews with appellees, and that in his expert opinion appellees had overpaid this debt. Dahlgren's complete amortization schedule was appended to his affidavit. Appellant opposed the motion for summary judgment. Appellant filed an affidavit from William J. Dasso, counsel to appellant, who stated the undisputed terms of the note, that appellant had purchased the remaining balance from the receiver, which had certified the balance as $13,664 upon its purchase, and that he had attached a partial payment record from February 1985 through September 1988 reflecting numerous delinquent payments. Dasso then stated that appellees owed appellant $3,587.16.

At the hearing on this motion, appellees' counsel argued that appellant failed to respond with anything other than conclusions without facts, which would not constitute meeting proof with proof. Appellant's counsel disagreed, noting that the evidence demonstrated that additional late charges were incurred and added to the principal such that appellant was owed money. The circuit judge found that appellant failed to meet proof with proof, having provided an incomplete record of the life of the loan. Summary judgment for appellees followed.

In reviewing a summary-judgment case, we need only decide if the trial court's grant of summary judgment was appropriate based on whether the evidence presented by themoving party left a material question of fact unanswered. Aka v. Jefferson Hosp. Ass'n, 344 Ark. 627, 42 S.W.3d 508 (2001). The purpose of summary judgment is not to try the issues but to determine whether there are any issues to be tried. See, e.g., Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000); Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). We have ceased referring to summary judgment as a drastic remedy. Flentje v. First Nat'l Bank of Wynne, supra. We now regard it simply as one of the tools in a trial court's efficiency arsenal. Id.

The moving party always bears the burden of sustaining a motion for summary judgment. Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996). All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Id. However, the moving party is entitled to summary judgment if the pleadings, depositions, and answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2000); Robert D. Holloway, Inc. v. Pine Ridge Add'n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Mount Olive Water Ass'n v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993). The response and supporting material must set forth specific facts showing that there is a genuineissue for trial. Id.; see also Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). The adverse party may not rest upon mere allegations or denials of the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Hampton v. Taylor, 318 Ark. 771, 887 S.W.2d 535 (1994); Lubin v. Crittenden Hosp. Ass'n, 295 Ark. 429, 748 S.W.2d 663 (1988). A party opposing a motion for summary judgment must be diligent in countering the motion. BWH, Inc. v. Metro. Nat'l Bank, 267 Ark. 182, 590 S.W.2d 247 (1979).

In the present appeal, the circuit judge was faced with proof from appellees demonstrating the parties' agreement and an amortization schedule1 purporting to constitute the entire payment history and calculation of overpayments. In opposition, appellant presented sworn statements stating the loan balance when purchased by appellant and a record of the first four years of payments on the note, which conflicted with appellees' figures. We must view the evidence in the light most favorable to appellant. See Renfro, supra. Appellant's proof in opposition to the motion was certainly incomplete, but it nonetheless provided evidence of an issue of material fact in that the parties cannot agree on the interest accrual, the dates of payments, and if a penalty applied based upon those dates. The parties have disagreed on the correct balance since the first payment was remitted. We reverse the entry of summary judgment and remand for trial.

Appellant also argues on appeal that reversible error occurred when the circuit judge refused its request, pursuant to Ark. R. Civ. P. 52, for findings of fact and conclusions of law to support the entry of summary judgment. Because we are reversing on the entry of summary judgment, this renders the second point on appeal moot.

Reversed and remanded.

Stroud, C.J., and Hart, J., agree.

1 The bookkeeper prepared the schedule with an erroneous presumed interest rate of 16% because the promissory note undisputedly set forth the interest rate at 15.9833%.