Fidelity Nat. Bank v. Tommy L. Goff, Inc.

• Citation: 583 P.2d 470,1978 NMSC 74,92 N.M. 106
• Decision Date: 14 September 1978
• Docket Number: No. 11803,11803
• Parties: FIDELITY NATIONAL BANK, a New Mexico Corporation, Plaintiff-Appellee, v. TOMMY L. GOFF, INC., a New Mexico Corporation, Tommy L. Goff, Janey Rue Goff, Defendants, v. Robert W. BAKER, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 470

583 P.2d 470

92 N.M. 106

FIDELITY NATIONAL BANK, a New Mexico Corporation, Plaintiff-Appellee, v. TOMMY L. GOFF, INC., a New Mexico Corporation, Tommy L.

Goff, Janey Rue Goff, Defendants, v. Robert W. BAKER, Defendant-Appellant.

No. 11803.

Supreme Court of New Mexico.

Sept. 14, 1978.

[92 NM 106] Lamb, Metzgar & Lines, John S. Campbell, Albuquerque, for appellant.

Threet, Threet, Glass & King, Martin E. Threet, Rolf A. Melkus, Albuquerque, for appellee.

OPINION

FEDERICI, Justice.

Plaintiff Fidelity National Bank (appellee) brought this action against Tommy L. Goff, Inc. to recover money allegedly due under promissory notes executed in favor of appellee by the corporation. The action was also brought against Tommy L. Goff, individually, Janey Rue Goff and appellant Robert W. Baker (appellant) as guarantors of the notes. The complaint alleged that appellant Baker had executed a continuing guaranty agreeing to guarantee up to $500,000.00 of the indebtedness of Tommy L. Goff, Inc. The action was dismissed as against all defendants except appellant Baker with the consent of the appellee. Following a hearing on appellee's motion for summary judgment pursuant to N.M.R.Civ. P. 56 (§ 21-1-1(56), N.M.S.A. 1953 (Repl.1970)), judgment was entered for appellee in the amount of $302,264.86, together with interest, costs and attorney fees. Appellant Baker appeals as to both the propriety of the entry of summary judgment against him and the amount of attorney fees awarded. This appeal presents a question of summary judgment procedure under Rule 56.

The second amended answer to the complaint denied generally the allegations of the complaint and raised twelve affirmative defenses. Appellant's affirmative defenses were brief statements of the following theories under which his liability as guarantor of the notes might be avoided: (1) fraud in the inducement; (2) failure of a condition precedent; (3) failure of consideration; (4) no actual reliance on the guaranty; (5) lack of consideration; (6) unconscionability of the guaranty; (7) fraud in the factum; (8) negligent extension of credit with consequent unenforceability of the guaranty; (9) alteration of the terms of the principal obligation with consequent discharge of appellant as guarantor; (10) failure to enforce certain security agreements with consequent discharge of appellant as guarantor; (11) premature acceleration of the principal obligation with consequent discharge of appellant as guarantor; (12) discharge of appellant as guarantor pursuant to terms of the guaranty itself. No factual amplification of any of these defenses was made in the answer.

Appellee's motion for summary judgment stated, generally, that there were no genuine issues of material fact and that all of the issues raised by appellant's answer were legal issues and not factual issues. Along with and in support of its motion the appellee filed an affidavit by its Vice President, stating the principal and interest due under the various notes, unanswered requests for admissions directed to appellant, the deposition of appellant and deposition testimony of a non-party. We may assume, for purposes of our discussion here, that these materials established the existence and amount of appellant's continuing guaranty on behalf of Tommy L. Goff, Inc. However, nothing contained in the affidavit or other materials submitted by appellee in support of its motion contravenes the allegations made in appellant's affirmative defenses. Appellant filed no affidavits or other extraneous materials in opposition to the motion and supporting materials filed by appellee.

Appellant now claims that the trial court erred in entering summary judgment for appellee because appellee failed to make a prima facie showing that it was entitled to judgment as a matter of law. See Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). More specifically, appellant argues that appellee failed to carry its burden of demonstrating that no genuine issue of fact existed as to the twelve affirmative defenses raised by appellant in his second amended complaint. Appellee argues in response that having made a prima facie showing as to its own case in chief (appellant Baker's liability under the continuing guaranty signed by him) it was incumbent upon appellant to come forward, by affidavit or otherwise, and make a showing that genuine and material factual issues were raised by one or more of his affirmative defenses.

The precise issue presented is whether a party moving for summary judgment on the basis of its complaint must demonstrate that no genuine issue of material fact exists as to affirmative defenses stated in the opposing party's pleadings before summary judgment can properly be granted in his favor. We hold that under Rule 56(c) the moving party carries that burden, which appellee failed to meet in this case. It is a familiar rule that summary judgment is a drastic remedy, to be used with great caution, and never as a substitute for a trial on the merits. Pharmaseal Laboratories, Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589 (1977). Under this fundamental principle it has consistently been held that the burden rests upon the party moving for summary judgment to show that there is no genuine issue of material fact to submit to the court before summary judgment may properly be granted. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958). So long as one issue of material fact remains, summary judgment may not properly be granted. Pharmaseal Laboratories, Inc. v. Goffe, supra.

We have additionally recognized that the burden on the movant "does not require him to show or demonstrate beyond all possibility that no genuine issue of fact exists." Goodman v. Brock, 83 N.M. 789, 793, 498 P.2d 676, 680 (1972). Rather, once the movant has made a prima facie showing that it is entitled to summary judgment, the burden shifts to the party opposing the motion to show that a genuine issue as to a material fact remains. Goodman v. Brock, Supra. In meeting this burden, the opponent cannot rely solely on allegations in the pleadings. Hately v. Hamilton, 81 N.M. 774, 473 P.2d 913 (Ct.App.19...