Evans v. Dise
Evans v. Dise
Opinion of the Court
Appeal from the granting of a summary-judgment in favor of the plaintiff-appellee in a proceeding for foreclosure, attorney’s fees and costs, on a mortgage on real property. The parties will hereinafter be referred to as they appeared below.
The defendants’ answer here admitted that the property which was the subject of the mortgage was in Maricopa County, but denied all other allegations of the complaint. The defendants’ answer contained an allegation that if any interest or principal was due from the defendants to the plaintiff it was usurious.
Copies of the note, mortgage and assignment of mortgage were filed supporting the motion. The defendants took the
The defendants filed no response to the motion for summary judgment, no controverting affidavits and no other depositions. The motion for summary judgment was granted and the defendants filed no objection to the form of the judgment filed by the plaintiff. After entry of the summary judgment in favor of the plaintiff on February 19, 1970, the defendants filed a motion to set aside the judgment on March 24, 1970, stating as grounds for the motion only that the answérs to interrogatories and the deposition here “clearly show that there is a genuine issue of law and fact.”
The single issue here is whether or not the trial court erred in granting the plaintiff’s motion for summary judgment in view of the record as described above.
On appeal from the granting of a summary judgment, the record will be viewed in a light most favorable to the party opposing summary judgment (defendants here). Pitzen’s Wig Villa v. Pruitt, 11 Ariz.App. 332, 464 P.2d 652 (1970). In considering a motion for summary judgment, the trial court is required to consider the pleadings, interrogatories and answers thereto, admissions, depositions and affidavits in the record. Pitzen’s Wig Villa v. Pruitt, supra. Where facts set forth in an affidavit in support of a motion for summary judgment are not controverted, they are presumed true for purposes of the ruling on the motion. Eastwood Elec. Co. v. R. L. Branaman Contractor, Inc., 102 Ariz. 406, 432 P.2d 139 (1967) ; Pitzen’s Wig Villa v. Pruitt, supra. The Eastwood Elec Co. case holds that under Rule 56(e), Rules of Civil Procedure, 16 A.R.S.,
When the party moving for summary judgment makes a prima facie showing that there is no genuine issue as to any material fact, the party opposing such a motion has the burden of producing sufficient evidence of such an issue of fact and showing that there is such evidence available “which would justify a trial of the issue. [Citation omitted]” Robbins Investment Co. v. Green Rose Associates, Inc., 8 Ariz. App. 596, 448 P.2d 440 (1968).
In defendants’ brief here, it is contended that a portion of the plaintiff’s deposition (which was taken by defendants) “indicates a dispute of fact as to payments and as to what is owed, if anything * *
Additionally, the defendants’ brief urges that they have shown the existence of a genuine issue of fact as to usury.
Here, the plaintiff made at least a prima facie showing of no genuine issue of fact and the defendants failed to properly respond to the plaintiff’s motion for summary
Note: This cause was decided by the Judges of Division Two as authorized by A.R.S. Sec. 12-120, subsec. E.
. Interest in excess of 8% per annum was usurious in Arizona at the time of the execution of the note here. A.R.S. Sec. 44-1202.
. The Eastwood case was apparently decided under Rule 56(e), supra, as it existed prior to its amendment, but the amended rule can be harmonized with the holding in Eastwood. The amended rule, under which the instant case is decided, reads as follows:
“Eorm of affidavits; further testimony, defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the more allegations or denials of his pleading, 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.” Rule 56(e), as amended, Rules of Civil Procedure, 16 A.R.S.
The language “if appropriate” can be equated with the condition in Eastwood that the moving party must “show he is entitled to judgment as a matter of law. [Citations omitted]” Eastwood Elec. Co. v. R. L. Branaman Contractor, Inc., supra. See, Pitzen’s Wig Villa v. Pruitt, supra; Commercial Engineering Corp. v. Madison Chevrolet, Inc., 10 Ariz.App. 529, 460 P.2d 200 (1969).
. This is the first time the defendants have specified in any degree what facts they contend show genuine issues for trial.
. Again, this is the first time the defendants have specified what facts showed an alleged genuine issue for trial.
. In Modern Pioneers Ins. Co. v. Nandin, 103 Ariz. 125, 437 P.2d 658 (1968), our Supreme Court quoted its statement in Grady v. Price, 94 Ariz. 252, 383 P.2d 173 (1963), that lenders may charge borrowers “reasonable fees for services rendered in connection with the loan, or require reimbursement of expenses incurred. * * *” over and above the ' highest legal rate of interest. The Modern Pioneers case points out that Grady does not allow the lender to charge the borrower with the lender’s ordinary overhead expenses.
. The transcripts of the hearings on the motion for summary judgment and the motion to set aside have not been filed with this court on appeal so we have no way of knowing the theories advanced by the defendants, if any, in regard to facts showing a genuine issue for trial.
Reference
- Full Case Name
- Andrew J. EVANS and Mary R. Evans, husband and wife v. Harry F. DISE
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- 2 cases
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- Published