dissenting. I must respectfully dissent from the opinion of the majority in this case. The opinion recognizes that the leading case in Arkansas pertaining to the filing of cross motions for summary judgment is Wood v. Lathrop, 249 Ark. 376, 459 S.W.2d 808 (1970), where the court agreed that “the fact that both parties have moved for summary judgment does not establish that there is no issue of fact.” 249 Ark. at 379, 459 S.W.2d at 809.
The majority opinion also acknowledges that “the general principle set forth in Wood has been subsequently followed” in the Arkansas Supreme Court and the Arkansas Court of Appeals. The majority opinion, however, fails to follow these decisions on the basis that there are other “decisions of both courts holding that an appellant may find himself barred from raising on appeal the argument that an issue of fact remains to be decided when he has contended to the contrary in the trial court.”
Taking a close look at the situation in the present case, it is clear that the appellants filed a motion for summary judgment and alleged, as the majority states, that there “was no genuine issue of material fact regarding the enforceability of paragraph 5 of the sales agreement.” They submitted with their motion the affidavit of Laura Tucker, a certified public accountant, who said an audit revealed there had been a 25 percent or greater decrease in sales during the last fiscal year when compared to the fiscal year ending June 8, 1988, and under paragraph 5 of the sales agreement the appellants were not required to make further payments to the appellee.
The appellee also moved for summary judgment. In his motion it was alleged that Laura Tucker had used the wrong Consumer Price Index, and the appellee attached an affidavit of Dr. Charles Venus, a consulting economist. Among other things, this affidavit stated that there were “in excess of one-hundred (100) such indexes which require those persons engaged in the field of my profession to determine which index should be utilized as being most correctly applicable for a specific reference purpose.”
The appellants responded to appellee’s motion and attached the affidavit of Robert E. “Jay” Marsh, a consulting economist, who stated:
The Size D index for the South region is a better measure of inflation for El Dorado and Magnolia than the other “size” indices for the south region or the combined index for all sizes for the entire south region used by Charles E. Venus. Of all the indices applicable to the geographic region of which Arkansas is a part, the Size D index is the best measure of inflation for the El Dorado and Magnolia areas.
The chancellor granted summary judgment for appellee after hearing the parties’ arguments on their motions and noted that the case turned on the construction of the wording contained within paragraph 5 of the sales agreement. He stated:
When making the comparison of 1988 with 1991, using the Consumer Price Index, defendants used the C.P.I. applicable for “size D” non-metropolitan areas in the South Region with a population of less than 50,000. The rationale being that cities of El Dorado and Magnolia fall in that category. The plaintiff contends that the C.P.I. for the entire Southern Region of which Arkansas is a part should have been used.
It may well be that the C.P.I. applicable for “size D” non-metropolitan areas is more accurate to determine the inflation for El Dorado and Magnolia. However, the plain wording of paragraph 5 of the sales contract does not call for that determination. It states that the C.P.I. to be used is the one that includes Arkansas. The C.P.I. utilized by the defendants does not include Arkansas. It includes cities of certain sizes in Arkansas. To reach the same conclusion as defendants regarding the appropriate C.P.I. would give paragraph 5 of the sales agreement a meaning which it simply does not contain.
I find no inconsistency in appellants’ argument on appeal that a factual question remains, even though they unsuccessfully moved for summary judgment in the trial court. The point involved is the meaning of that part of paragraph 5 which provides that sales in the fiscal year ending June 8,1988, would be compared with those for the year ending on the anniversary date in question “after adjusting the difference in the sales figures for inflation, using the Consumer Price Index as published by the Department of Labor and as applicable to the geographic region of which Arkansas is a part.” (Emphasis added.)
On motion for summary judgment, the court is authorized to ascertain the plain and ordinary meaning of a written instrument after any doubts are resolved in favor of the party moved against, and if there is any doubt about the meaning, there is an issue of fact to be litigated. Moore v. Columbia Mutual Casualty Ins. Co., 36 Ark. App. 226, 228, 821 S.W.2d 59, 60 (1991). When a contract is unambiguous, its construction is a question of law for the court. Id. The initial determination of whether a contract is ambiguous rests with the court. Id. When the intent of the parties as to the meaning of a contract is in issue, summary judgment is particularly inappropriate. Camp v. Elmore, 271 Ark. 407, 408-09, 609 S.W.2d 86, 87 (Ark. App. 1980). A latent ambiguity arises when the contract on its face appears clear and unambiguous but collateral facts exist which make its meaning uncertain. Countryside Casualty Co. v. Grant, 269 Ark. 526, 530, 601 S.W.2d 875, 877 (1980). Parol evidence is admissible not only to bring out the latent ambiguity but to explain the true intentions of the parties. 269 Ark. at 530, 601 S.W.2d at 877-78. When the terms of a written contract are ambiguous, the meaning of the contract becomes a question of fact. Stacy v. Williams, 38 Ark. App. 192, 196, 834 S.W.2d 156, 158 (1992).
Although paragraph 5 appears unambiguous on its face, the motions and affidavits filed by the parties clearly reveal that there is a latent ambiguity as to the meaning of the paragraph. The intent of the parties in regard to the use of the Consumer Price Index is unclear. Specifically, the meaning of the language “using the Consumer Price Index as published by the Department of Labor and as applicable to the geographic region of which Arkansas is a part” is ambiguous under the record before us in this case. In Moss v. Allstate Insurance Co., 29 Ark. App. 33, 35, 776 S.W.2d 831, 833 (1989), this court relied upon Wood v. Lathrop, supra, and stated that the fact both parties moved for summary judgment did not establish there was no issue of material fact, and if there is any doubt as to whether there are issues of fact to be tried, both motions for summary judgment should be denied. That, in my judgment, is the situation in the present case.
The cases cited by the majority as holding that the appellants are barred from asserting on appeal that there is a genuine issue of fact to be decided are clearly distinguishable from the instant case. In Bibler Brothers Timber Corp. v. Tojack Minerals, Inc., 281 Ark. 431, 664 S.W.2d 472 (1984), the appellant sought to cancel part of an oil and gas lease on the basis that a producing well on a drilling unit which had been pooled with other drilling units by an order of the Arkansas Oil and Gas Commission did not keep the lease in force as to the land in the other units. On appeal from an adverse judgment granted “on the pleadings” the appellant also argued that there was an unresolved factual question as to whether there was a lease forfeiture due to the appellee’s failure to drill and develop the non-unitized acreage. The court on appeal held that issue was waived because the appellant had “asserted positively in its Motion for Summary Judgment” that there was “no genuine issue as to any material fact” and that it was entitled to judgment as a matter of law. That is a different situation from the case at bar.
Here, each party wanted a summary judgment based upon that party’s view of the meaning of the language in paragraph 5 of the sales contract which provided that sales figures would be compared after adjusting the difference in the figures for inflation “using the Consumer Price Index as published by the Department of Labor and as applicable to the geographic region of which Arkansas is a part.” Relying on what each party thought were the proper figures as required by paragraph 5, each party alleged there was no material fact for trial. The trial court selected one set of figures which the judge found to be applicable as a matter of law. The other party appeals on the grounds that the judge selected the wrong figures. The appellate court can plainly see that each party is using a different price index, and it is clear that the correct index is a question of fact. Even the appellee’s expert says there are more than 100 such indexes and that a professional determination is required to select the index most correctly applicable for a specific purpose. Under these circumstances paragraph 5 contains a latent ambiguity, and a genuine issue of fact exists; therefore, both motions for summary judgment should have been denied.
The case of Neel v. Citizens First State Bank of Arkadelphia, 28 Ark. App. 116, 771 S.W.2d 303 (1989), relied upon by the majority opinion, does not hold that a party who has filed a motion for summary judgment is barred from contending on appeal that there is a genuine issue of material fact to be determined. In Neel the appellate court simply pointed out that the appellant did not file any affidavit to counter those filed by the appellee to support its motion for summary judgment and that appellant’s counsel told the trial court “the reason we didn’t file anything, we don’t have any disagreement on the facts. . . . we’re not arguing any of the facts, so there’s no point in swearing.” 28 Ark. App. at 119, 771 S.W.2d at 305. Therefore, the opinion in Neel stated that the appellant had agreed there were no material issues of fact to be determined, and the appellant could not argue to the contrary on appeal. 28 Ark. App. at 120, 771 S.W.2d at 305. And the case of Briscoe v. Shoppers News, Inc., 10 Ark App. 395, 664 S.W.2d 886 (1984), cited in Neel, holds that a party who consents to the provisions in a trial court decree cannot complain on appeal of the court’s action which the party induced, consented to, or acquiesced in. See 10 Ark. App. at 401, 664 S.W.2d at 890.
Thus, Neel and Briscoe do not, in my view, lend any support to the majority opinion. A closing citation to a federal case in the majority opinion simply says that cross motions may be probative of the non-existence of a factual dispute. The general rule, however, is set out in 28 Federal Procedure, L.Ed. § 62-586 at 71-72 (1984), as follows:
The situation where the parties to an action file cross motions for summary judgment should be distinguished from that where they submit the issues to the court for its determination. Where both parties move for summary judgment it does not mean that they agree that there are no material issues of fact, or that if one motion is rejected the other is necessarily justified, or that the losing party waives judicial consideration and determination of whether genuine issues of material fact exist.
I would hold that there is a genuine issue of material fact to be determined in the case before us; therefore, I dissent from the decision set out in the majority opinion.
Cooper, J., joins in this dissent.