Gmac Mortg. Corp. v. Farmer
| Decision Date | 09 January 2008 |
| Docket Number | No. CA 07-438.,CA 07-438. |
| Citation | 101 Ark. App. 113,270 S.W.3d 882 |
| Parties | GMAC MORTGAGE CORPORATION, Appellant, v. Sandra Dedrick FARMER, et al., Appellees. |
| Court | Arkansas Court of Appeals |
Wilson & Associates, PLLC, by: John P. Marks and Charles T. Ward, Jr., Little Rock, AR, for appellant.
Bridges, Young, Matthews & Drake, PLC, by: Cary E. Young and Tanya B. Spavins, Pine Bluff, AR, for appellees.
Appellees Sandra Dedrick Farmer, Charles W. Dedrick, LaVera Faye Dedrick, and Joseph C. Dedrick are the grandchildren of Millridge Dedrick, Sr., and his wife, Vera, both deceased. This case originated when these grandchildren and their spouses, the remaining appellees, petitioned the trial court to partition the real property at issue in this case by sale and to distribute the proceeds according to the interests of the parties. The appellee grandchildren asserted ownership of the property as heirs of Millridge Dedrick, Sr., and "as tenants in common with Vedell Dickson," to whom Lorraine Dedrick, Millridge Dedrick, Sr.'s, surviving second wife, conveyed her dower interest in the property. Vedell Dickson's interest in the property was encumbered by various means that traced through other respondents in the underlying action, including appellant GMAC, the only one of those parties that has appealed the decision granting summary judgment to appellees.
On December 13, 2005, appellees moved for summary judgment on their petition, asking the trial court to confirm their title to the property, subject to Dickson's one-third interest in the property for the life of Lorraine Dedrick under Arkansas Code Annotated section 28-11-301 (Repl.2004). On December 30, 2005, GMAC, while not challenging any of the facts asserted by appellees, responded by contending that Lorraine conveyed a one-half interest in fee simple to Dickson under section 28-11-307 (Repl.2004) because Millridge, Sr., died leaving no surviving children—just grandchildren. On January 6, 2006, appellees replied by noting that GMAC had raised a question of law, not fact.
On February 6, 2006, GMAC filed a cross-motion for summary judgment, once again asserting that the material facts were undisputed and that the only remaining issue was one of law, and asking the trial court to determine which statute applied, 28-11-301 or 28-11-307. On February 14, 2006, appellees responded to the cross-motion, reaffirming that the only significant issue was one of law—not fact.
On February 24, 2006, GMAC—for the first time—by letter notified the trial court that it had located a contract for sale of the property. Then, on February 27, 2006, GMAC attached a copy of an unrecorded land-sale contract, dated September 7, 1996, to its reply in its own cross-motion for summary judgment. In the land-sale contract, Millridge, Sr., as owner of the property, and Lorraine, as his wife, contracted to sell the property in question to Vedell Dickson. The contract contained the provision that it was binding on the parties' heirs and assigns. In addition, GMAC contended that the contract had been completed because there was a check from Dickson to Lorraine and there was the warranty deed from Lorraine to Dickson, and that the existence of the contract created a question of fact that precluded summary judgment. Based on the discovery of the contract, GMAC also filed an entirely new motion for summary judgment. In their response, appellees maintained that the land-sale contract had been untimely and improperly raised and therefore could not defeat their original motion for summary judgment.
On October 12, 2006, the trial court held a hearing on all of the motions for summary judgment. On November 17, 2006, the trial court entered its summary judgment in favor of appellees. The trial court made no finding with respect to the land-sale contract. GMAC subsequently filed a post-judgment motion, requesting that the trial court reconsider its summary judgment in favor of appellees and that the trial court make specific findings concerning why the land-sale contract did not create a genuine issue of fact in the case. The trial court did not rule on the post-judgment motion, and it was therefore deemed denied after the passage of thirty days. This appeal then followed.
GMAC challenges the trial court's grant of summary judgment to appellees on three bases (1) that appellees failed to make a prima facie showing of entitlement to partition as a matter of law, 2) that GMAC raised a genuine issue of material fact regarding whether appellees had title to the property they sought to partition, and 3) that the trial court should have applied Arkansas Code Annotated section 28-11-307, rather than section 28-11-301, in deciding this case. We affirm.
In their brief in support of their motion for summary judgment, appellees set forth the following pertinent facts of the case, which they described as undisputed.
Title to the property at issue was originally obtained by Millridge Dedrick, Sr., and Vera Dedrick (Vera), his wife, in October 1950 by warranty deed. Millridge, Sr., and Vera had one child, Millridge, Jr. Appellees are the children of Millridge, Jr., and the grandchildren of Millridge, Sr., and Vera. Vera predeceased both her husband and her son, and Millridge, Sr., subsequently married a woman by the name of Lorraine. Millridge, Jr., died in March of 1997, and Millridge, Sr., died shortly thereafter in July 1997. Millridge, Sr., was survived by his second wife, Lorraine, and his grandchildren by Millridge, Jr. Title to the property was never conveyed to Lorraine. However, on or about October 29, 1999, Lorraine conveyed to Vedell Dickson what purports to be the entire title to the property by warranty deed. Vedell Dickson subsequently encumbered the property.
The appellees attached to their motion for summary judgment affidavits in support of the above-asserted facts. In particular, they also attached a certified copy of the redemption deed obtained after the payment of delinquent taxes and recorded in the real-estate records of Jefferson County, Arkansas.
For its first point of appeal, GMAC contends that appellees failed to make a prima facie showing of entitlement to partition of the property as a matter of law and that the trial court therefore erred in granting them summary judgment. GMAC bases its argument on the fact that appellees "attached a redemption deed by which the Commissioner of State Lands conveyed fee title to the property to Vedell Dickson." GMAC now explains that the redemption deed was presented by appellees only as proof of their payment of taxes, and that they did not discuss the effect of the redemption deed on their claim of title. GMAC contends, although it did not do so below, that "the redemption deed has much greater significance than just being evidence of tax payments," and that "it is a conveyance of title and, as such, rebuts and contradicts petitioners' prima facie case of entitlement to summary judgment by creating a genuine issue of material fact as to whether their title is sufficient to support a partition." GMAC further contends that its failure to raise this argument below is of no moment because appellees failed to carry their burden of making a prima facie case, which meant that the burden of going forward to establish an issue of material fact never shifted to GMAC. We disagree.
In Inge v. Walker, 70 Ark.App. 114, 118-20, 15 S.W.3d 348, 351-52 (2000), which GMAC cites in support of its argument, our court explained:
Arkansas Rule of Civil Procedure 56(e) provides:
When a motion is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added.)
The Arkansas Supreme Court recently reviewed the law in regard to summary judgment in New Maumelle Harbor v. Rochelle, 338 Ark. 43, 991 S.W.2d 552 (1999):
In these cases, we need only decide if the granting of 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. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. 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. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.
338 Ark. at 45-46, 991 S.W.2d at 553 (quoting Sublett v. Hipps, 330 Ark. 58, 62, 952 S.W.2d 140, 142 (1997), quoting Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 653, 656 (1997)) (emphasis added). Once a moving party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. New Maumelle Harbor, supra. Prima facie evidence is Black's Law Dictionary, 1190 (6th. ed 1990) (emphasis added).
In Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999) (quoting Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998)), the supreme court explained further:
The law is well...
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