Wayne County Bank v. Hodges

• Decision Date: 12 December 1985
• Docket Number: No. 16363,16363
• Citation: 338 S.E.2d 202,175 W.Va. 723
• Parties: WAYNE COUNTY BANK, a Corporation of Wayne, West Virginia v. Gary L. HODGES, d/b/a Hodges Used Cars, Albert Lee Hodges and Anna L. Hodges.
• Court: West Virginia Supreme Court

Page 202

338 S.E.2d 202

175 W.Va. 723

WAYNE COUNTY BANK, a Corporation of Wayne, West Virginia v. Gary L. HODGES, d/b/a Hodges Used Cars, Albert Lee Hodges and Anna L. Hodges.

No. 16363.

Supreme Court of Appeals of West Virginia.

Dec. 12, 1985.

Syllabus by the Court

1. "A motion for a summary judgment should be granted if the pleadings, exhibits and discovery depositions upon which the motion is submitted for decision disclose that the case involves no genuine issue as to any material fact and that the party who made the motion is entitled to a judgment as a matter of law." Syl. pt. 5, Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d 735 (1971).

2. "Generally, abuse of process consists of the willful or malicious misuse or misapplication of lawfully issued process to accomplish some purpose not intended or warranted by that process." Preiser v. MacQueen, No. 16620, W.Va., W.Va. , (W.Va.June 12, 1985), slip op. at 13..

3. "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Syl. pt. 6, Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).

Gary L. Hodges, Anna L. Hodges, pro se.

Michael J. Farrell, Huntington, W.Va., Stephen Lewis, Wayne, W.Va., Barry M. Taylor, Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, W.Va., for appellees.

McHUGH, Justice.

This appeal is before this Court upon the petition of Gary L. Hodges, et al., from the final order of the Circuit Court of Wayne County, West Virginia. Pursuant to that order, summary judgment was entered in favor of the appellee, Wayne County Bank. This action concerns certain promissory notes signed by appellant Gary L. Hodges in 1980. By order, this Court granted the appellants' motion for leave to move to reverse. W.Va. Code, 58-5-25 [1931]. This Court has before it the petition for appeal, all matters of record and the briefs filed by the parties.

I

The appellants are residents of Wayne County. Albert and Anna Hodges are the parents of Gary Hodges. During the period in question, Gary Hodges was engaged in the business of selling used automobiles. The appellee, Wayne County Bank, is engaged in business in Wayne County.

Pursuant to a loan agreement, Gary Hodges, on May 13, 1980, signed a note in the amount of $29,500 at 14% interest payable to the Wayne County Bank. The note was signed "Gary L. Hodges DBA Hodges U/C." The back of the note was signed by appellants Albert and Anna Hodges. No payment of either principal or interest was ever made by the appellants upon that note. See n. 1, infra.

Later, on September 9, 1980, Gary Hodges signed a note in the amount of $28,500 at 11% interest payable to the Wayne County Bank. The note was signed "Gary L. Hodges DBA Hodges Used Cars." The back of the note was signed by appellants Albert and Anna Hodges. The record indicates that the September, 1980 note was a "renewal" of and substitution for the May, 1980 note. ¹ However, no payment of either principal or interest was ever made by the appellants upon the September, 1980 note.

In January 1981, the Wayne County Bank instituted an action in the Circuit Court of Wayne County alleging that Gary Hodges, as maker, and Albert and Anna Hodges, as co-signers or endorsers, had defaulted upon the May, 1980 note. The Wayne County Bank thus asserted that the appellants owed the bank $29,500 at 14% interest.

The appellants filed an answer and counterclaim. The answer and counterclaim alleged, inter alia, that the bank, in seeking satisfaction of the indebtedness of the appellants, had committed the torts of abuse of process and outrageous conduct. The appellants also asserted that the bank was guilty of usury. The appellants alleged in the counterclaim that they were entitled to consequential and punitive damages.

The circuit court conducted an evidentiary hearing in this action. Upon the basis of that hearing and upon the affidavits and depositions filed in this action, and other matters of record, the circuit court determined the material facts to be "non-controverted." The circuit court found, inter alia, as follows:

1. Gary L. Hodges, d/b/a Hodges Used Cars, borrowed and received the sum of at least Twenty-Eight Thousand, Five Hundred Dollars ($28,500.00) from the Wayne County Bank on May 13, 1980, at an interest rate of at least eleven percent (11%).

2. Albert Lee Hodges and Anna L. Hodges endorsed the note for the loan by the Bank to Gary L. Hodges, d/b/a Hodges Used Cars, with the intent of guaranteeing payment to the Bank if Gary L. Hodges, d/b/a Hodges Used Cars, refused to repay the loan upon demand.

3. Each of the defendants knew that the loan was made for a business purpose.

Consequently, as reflected in its final order, the circuit court ruled that the appellants were indebted to the Wayne County Bank and entered summary judgment for the bank for the "lesser loan principal sum of Twenty Eight Thousand, Five Hundred Dollars ($28,500.00), at the lesser interest rate of eleven percent (11%) per annum...." That ruling has not been contested by the bank.

Furthermore, the circuit court entered summary judgment for the bank upon the appellants' counterclaim. The circuit court indicated that the appellants had failed to raise any factual issue with regard to the allegations of abuse of process and outrageous conduct. Moreover, the circuit court ruled that, inasmuch as the loan in question from the bank was for a business purpose (i.e., Gary L. Hodges' business of selling used automobiles), the appellants' assertion of usury was without merit. W.Va. Code, 47-6-11 [1979].

II

It is without question that the Circuit Court of Wayne County properly entered summary judgment for the Wayne County Bank in the amount of $28,500 at 11% interest. That judgment reflected the unpaid note dated September 9, 1980, signed by the appellants. The liability of the appellants in that regard is well established. See W.Va. Code, 46-3-413 [1963]; W.Va. Code, 46-3-414 [1963]. The issue before this Court is, therefore, whether the circuit court committed reversible error in entering summary judgment for the bank upon the appellants' counterclaim. For the reasons stated below, we hold that the circuit court ruled correctly.

Rule 56 of the West Virginia Rules of Civil Procedure provides that a summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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." However, having stated in previous cases that summary judgment is no substitute for a trial, ² this Court, in Masinter v. Webco Co., 164 W.Va. 241, 242, 262 S.E.2d 433, 435 (1980), recognized that "we have viewed summary judgment with suspicion and have evolved the rule that, on appeal, the facts must be construed in a light most favorable to the losing party." In syllabus point 3 of Thomas v. Goodwin, 164 W.Va. 770, 266 S.E.2d 792 (1980), we held that "[o]n a motion for summary judgment the court cannot summarily try factual issues and may consider only facts which are not disputed or the dispute of which raises no substantial factual issues."

Nevertheless, summary judgment is warranted in certain cases. As we held in syllabus point 5 of Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d 735 (1971):

A motion for a summary judgment should be granted if the pleadings, exhibits and discovery depositions upon which the motion is submitted for decision disclose that the case involves no genuine issue as to any material fact and that the party who made the motion is entitled to a judgment as a matter of law.

See also syl. pt. 2, Grady v. City of St. Albans, 171 W.Va. 18, 297 S.E.2d 424, 426-27 (1982); syl. pt. 2, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703, 708 (1981).

The appellants' allegations in the counterclaim of abuse of process and outrageous conduct arise principally from an attachment issued by the circuit court in 1981. Specifically, in January 1981, the Wayne County Bank, seeking satisfaction of the indebtedness represented by the notes, filed in circuit court the affidavit of Michael A. Herrick, an officer of the Wayne County Bank. By way of that affidavit, the Wayne County Bank obtained an attachment of certain funds belonging to the appellants and located in the Guaranty National Bank of Huntington, West Virginia. That affidavit asserted that appellants Albert and Anna Hodges:

assigned their property, or a material part thereof, with intent to defraud their creditors, in that the said defendants, Albert Lee Hodges and Anna L. Hodges, on the 16th day of December, 1980, granted unto James D. Perry and Lafe C. Chafin, Trustees, a deed of trust to secure a loan of $32,500.00 from the Guaranty National Bank of Huntington, West Virginia ...; that the property conveyed by said deed of trust was part of the property listed in the financial statement presented by said defendants to the plaintiff [Wayne County Bank], and upon the value of such assets the plaintiff was induced to make the loan which is the subject of this action.

That affidavit, however, proved to be incorrect, and the circuit court in May 1981 quashed the attachment. In particular, the property conveyed by the deed of trust with regard to the Guaranty National Bank loan was not "part of the property listed in the financial statement presented by said defendants to the plaintiff, and upon the value of such assets the plaintiff was induced to make the loan which is the subject of this action."

In Preiser v. MacQueen, No. 16620 (W.Va. June 12, 1985), this Court discussed abuse of process and stated that "[g]enerally, abuse of process consists of the willful or malicious misuse or...