Newell v. Hinton

• Decision Date: 31 January 1990
• Docket Number: No. 89-CA-0092,89-CA-0092
• Citation: 556 So.2d 1037
• Parties: Tammie NEWELL (Hinton) v. Mark T. HINTON.
• Court: Mississippi Supreme Court

Page 1037

556 So.2d 1037

Tammie NEWELL (Hinton) v. Mark T. HINTON.

No. 89-CA-0092.

Supreme Court of Mississippi.

Jan. 31, 1990.

Jack Parsons, Rebecca Cartledge Taylor, Parsons & Matthews, Wiggins, for appellant.

Gregory L. Gore, Hattiesburg, for appellee.

Before HAWKINS, P.J., and ANDERSON and BLASS JJ.

ANDERSON, Justice, for the Court:

STATEMENT OF THE CASE

This is an appeal from the judgment of the Chancery Court of Perry County. The appellant was found in contempt of the Final Judgment for Divorce and ordered to pay the sum of $2,160.00 to the appellee. In addition, the appellant was ordered to be confined to jail until she purged herself of the contempt; however the chancellor suspended the execution of the order of incarceration for sixty days to allow the appellant a reasonable time to purge herself of the contempt.

STATEMENT OF THE FACTS

Mark T. Hinton [hereinafter Hinton] and Tammie Newell Hinton [hereinafter Newell] were married on July 24, 1981. The couple owned two vehicles, a 1984 Ford Mustang and a 1981 Ford Pick-up truck, when, on June 28, 1985, they traded in their 1984 Mustang and executed a lease purchase agreement with Treadwell Ford for a 1985 Ford Mustang. Treadwell assigned this contract to Ford Motor Credit Corporation [hereinafter Ford]. This agreement provided, in part, that the lease was for a 48 month term beginning July 25, 1985.

On July 24, 1985, the parties separated. They executed their property settlement agreement on August 12, 1985. They filed their complaint for divorce, based on irreconcilable differences, on August 16, 1985.

                This agreement was made a part of the Final Judgment for Divorce granted on October 28, 1985.  It provided in part:  "Husband will receive one 1981 Ford pickup truck ... [and he] will pay any indebtedness due and owing on the above items."   Wife shall receive "... the 1984 Ford Mustang [and she] will be responsible for all indebtedness due and owing on the above items."
                

On April 2, 1987, the parties were in default and Ford repossessed the car, and it was sold at a private sale on April 16, 1987. As a result of the repossession and subsequent sale, on April 27, 1988, Ford filed a complaint in the County Court of Forrest County for the deficiency in the amount of $3,972.96. Mr. Hinton was served with this complaint for deficiency and attorney fees on May 2, 1988.

On May 31, 1988, Hinton filed a Complaint For Contempt in the Chancery Court of Perry County alleging that Newell failed to abide by the Judgment of Divorce. In response Newell filed her Answer to the Complaint for Contempt denying Hinton's allegations on July 21, 1988. The parties then filed their memoranda in support of their contentions. On November 2, 1988, Hinton filed a Motion for Summary Judgment to which Newell filed an answer on December 5, 1988. The motion was granted by the court on December 14, and the chancellor ordered Newell be confined to the Perry County Jail until she paid the amount owed, but he suspended the order of incarceration for sixty days to allow Newell a reasonable time in which to purge herself of the contempt. On December 27, 1988, Newell filed her Motion for Reconsideration, and timely filed her Notice of Appeal on January 12, 1989.

PROPOSITION I

THE LOWER COURT ERRED IN GRANTING MOTION FOR SUMMARY JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED

The dispute between these parties focuses on the property settlement agreement. In part the Agreement, executed on August 12, 1985, and made a part of the Final Judgment of Divorce of October 28, 1985, provides:

1. DIVISION OF REAL PROPERTY:

The parties hereto agree that all real property owned by them in their individual names shall remain their individual property. That Husband shall receive the five (5) Quarter horses owned by the parties and Wife will sign her interest in the same unto Husband. Husband will receive one 1981 Ford pickup truck (1) 1979 WW horse trailer and all his personal belongings and said Husband will pay indebtedness due and owing on the above items. Wife shall receive the Glenbrook house trailer, the 1984 Ford Mustang, all the furnishings in the Glenbrook house trailer, all her personal belongings and said Wife will be responsible for all indebtedness and owing on the above items.

3. VOLUNTARY EXECUTION:

The provisions of this agreement and their legal effects have been fully explained to the parties, and each party acknowledged that this agreement is fair and equitable and that it is being entered into voluntarily, and that it is not the result of any duress or undue influence.

4. ENTIRE AGREEMENT:

This agreement contains the entire understanding of the parties, and there are no representation[s], warranties, covenants, or other undertakings other than those expressly set forth herein.

(Emphasis added).

In his Motion for Summary Judgment, Hinton provided to the chancellor his sworn affidavit explaining the sequence of events leading up to his filing his motion for contempt against his ex-wife. He explained that he and Newell owned two vehicles, a 1984 Ford Mustang and a 1981 Ford pickup, but they later traded in the car and executed a lease agreement for a 1985 Ford Mustang.

Also included with his motion were the following:

(a) A copy of Treadwell Ford invoice no. 3537 dated June 28, 1985 evidencing the lease purchase of the 1985 Ford Mustang.

In addition the invoice shows that the 1984 Ford Mustang was used as a trade-in;

(b) A copy of an Odometer Mileage Statement of the 1984 Mustang signed by Hinton and Newell as transferors to Treadwell Ford as transferees. Dated June 28, 1985;

(c) A copy of a draft from Treadwell Ford to First Mississippi National Bank, lienholder on the 1984 Ford. Dated July 8, 1985; and

(d) A copy of Retail Lease Record of Ford Motor Credit Company regarding the 1985 Mustang.

Hinton also provided documents to provide evidence of Newell's default. These included a copy of a notice of private sale from Ford; a copy of the complaint for deficiency by Ford filed against Hinton and Newell; and a copy of Request for Admissions With Accompanying Interrogatories from Ford's attorney to Hinton's attorney. In particular the complaint from Ford alleged that the 1985 Ford Mustang had been purchased on July 28, 1985 and because of default the car was repossessed on April 2, 1987 and sold on April 16. The sale resulted in a deficiency of $3,972.96 for which Ford was suing the defendants along with costs and attorney fees.

Hinton provided more information. He gave the chancellor a copy of a Release of Claims, along with a copy of his cashier's check in the amount of $1,500 used to settle the claim with Ford. In addition, Hinton presented to the chancellor an agreed order of dismissal with prejudice drafted by his attorney which was mailed with the payment along with the release form to Ford's attorney.

DISCUSSION OF LAW

In determining whether the trial court was proper in granting Hinton's Motion for Summary Judgment, we must conduct de novo review. Allison v. State Farm Fire & Casualty Co., 543 So.2d 661, 663 (Miss.1989); Clark v. Moore Memorial United Methodist Church, 538 So.2d 760, 762 (Miss.1989).

The law governing the grant or denial of a motion for summary judgment is well established. Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988). This Court has explained repeatedly:

The trial court must review carefully all of the evidentiary matters before it--admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied.

Issues of facts sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.

Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984). See also, Allison, 543 So.2d at 663; Moore Memorial, 538 So.2d at 762; Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988); and Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983).

The movant is strapped with the burden of demonstrating that no genuine issue of fact exists while the non-movant is given the benefit of every reasonable doubt. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986). By the same token, however, the non-movant cannot just sit back and remain silent, but he must rebut by producing significant probative evidence showing that there are indeed genuine issues for trial. Fruchter, 522 So.2d at 198-99; Smith v. First Federal Savings & Loan Association, 460 So.2d 786, 792 (Miss.1984). The non-movant, in generating an issue of fact sufficient to avoid an adverse rendering of summary judgment, cannot rely solely on his pleadings, which simply allege or deny a material fact. Sanders, 485 So.2d at 1054. See also, Hill v. Consumer National Bank, 482 So.2d 1124, 1128 (Miss.1986) cited in Fruchter, 522 So.2d at 198-99. But, he must present "by affidavit or otherwise set forth specific Now that the course to summary judgment has been charted, we must turn to the evidence to see if there is a genuine issue of material fact.

                facts showing that there are indeed genuine issues for trial."  Fruchter, 522 So.2d at 199;  see also, First Federal, 460 So.2d at 792.   Stated another way, the non-movant must bring forward "significant probative evidence demonstrating the existence of a triable issue of fact."  Union Planters National Leasing, Inc. v. Woods, 687 F.2d 117, 119 (5th Cir.1982) (emphasis added) reh'g denied, 691 F.2d 502 (5th Cir.1982);  see also, Brown, 444 So.2d 358
                

Newell asserts that the property settlement agreement itself has created that genuine issue because "Hinton contends the property settlement agreement does not mean what it says." More...