dissenting. The majority opinion turns on facts contained in a posttrial motion from which no appeal was filed. Those facts are not properly before us, and the majority’s erroneous consideration of them has led it to an erroneous result.
This is an appeal from a summary judgment entered in favor of an insurance company with regard to the recission of a fire-insurance policy. The trial court ruled that the insurance company properly rescinded the policy in accordance with a provision stating that the policy was void if the insured concealed or misrepresented a material fact. The attachments to the summary-judgment motion presented the trial court with evidence that, in a conversation prior to issuance of the policy, the insurance agent specifically asked the insured whether the insured had ever had a prior fire loss, and that the insured told the insurance agent that he had not. There was also evidence that this was untrue, and that the insured had indeed had a prior fire loss that he failed to disclose.
When a motion for summary judgment is made and supported as provided in Ark. R. Civ. P. 56(e), an adverse party may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002). None of the evidence mentioned above was rebutted in the insured’s response to the motion for summary judgment.
The majority has identified a number of factual issues that were not resolved. While I generally agree that these issues have not been resolved, I believe that their unresolved status is irrelevant because none of the unresolved issues are material because they would not change the outcome, were not properly preserved for appeal, or both.
There are, for example, factual questions concerning the agency status of the person who signed the initial application. These questions, however, are immaterial in light of the unrebut-ted evidence of a prior oral representation by the insured himself. This oral misrepresentation is clearly sufficient to render the policy void under the broad language of the misrepresentation clause. This alone is sufficient to sustain the summary judgment; any subsequent misrepresentations in the application are immaterial, so we need not be concerned with the agency status of the person who made them.
The majority opinion hinges on its conclusion that the evidence of oral misrepresentation was in fact rebutted, and that the questions regarding the application are therefore material.1 This conclusion is based on consideration of facts that are not properly before us. Although it is true that the insured did eventually offer evidence refuting the evidence of oral misrepresentation, he did not do so in his response to the motion for summary judgment. Instead, after the summary judgment had been granted, the insured refuted the oral misrepresentation for the first time in the context of a motion to reconsider. However, appellant did not appeal from the denial of the motion to reconsider. His notice of appeal was filed prior to the expiration of the time allowed to the trial court to rule on the motion, see Ark. R. Civ. P. 4(b)(2),2 and that notice of appeal states on its face that the appeal is taken only from the summary judgment proper. See Arkansas Department of Human Services v. Shipman, 25 Ark. App. 247, 756 S.W.2d 930 (1988) (notice of appeal must be judged by what it recites and not what it intends to recite; it must state the order appealed from with specificity, and orders not mentioned in it are not properly before the appellate court). Consequently, the motion to reconsider is not properly before us and we should not consider evidence offered in support of it; the only relevant question for us to decide is whether the summary judgment was properly granted on the basis of the materials that had been provided to the trial judge at the time of his ruling. The answer to this question is affirmative, and we should therefore affirm the order granting summary judgment.
In a footnote, the majority asserts that it is not necessary to have recourse to the materials presented in the motion to reconsider because it “is evident from appellee’s own motion for summary judgment, brief, attached exhibits, and reply that” there was a factual dispute as to whether appellant was ever asked about a prior fire loss. However, besides referring to the appellant’s denial of an oral misrepresentation for the first time in his motion to reconsider (which the majority says it does not consider), all that the majority points to in order to show that a material question of fact regarding the oral misrepresentation was in fact presented in the attachments to the original motion is a statement in appellant’s deposition to the effect that appellant did not know that he was expected, after the interview, to subsequently fill out a written application. This fact quite clearly has no bearing whatsoever on the question of whether appellant made an oral misrepresentation concerning a prior fire loss in the interview itself. Finally, even were one to accept that the majority’s decision is in fact based on its conclusion that a genuine issue of material fact concerning oral misrepresentation was presented in those portions of appellant’s deposition that were attached to the original motion, it should be noted that this issue was not argued by appellant on appeal. Appellant’s arguments are clearly stated in his brief: first, he asserts that a fact question as to the oral misrepresentation was raised in the attachments to the motion to reconsider and, second, he asserts that, in reviewing the original motion for summary judgment, we should consider the entirety of his deposition, and not merely those portions that were attached as an exhibit to appellee’s motion for summary judgment. The majority does neither, but instead bases its reversal on an argument not raised by the parties. Although we may affirm a correct result for any reason, see Dunn v. Westbrook, supra, “[n]o citation of authority is necessary in saying that, aside from jurisdiction, we do not reverse cases on theories not presented by appellant to . . . this court.” Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975).
The majority has gone outside the pertinent record to reverse. It has, in fact, not actually reversed the grant of summary judgment, but has instead, sub silentio, reversed the denial of the motion to reconsider that was never appealed from. Worse, the majority does not do so by holding that the trial court abused its discretion in denying the motion to reconsider, which most likely would be the question for us to decide were that issue actually before us, but instead applies to this question the quite different standard applicable to review of the grant of a summary judgment. I cannot agree with the result obtained by application of such flawed methodology, and I respectfully dissent.
Vaught, J., joins in this dissent.
The majority opinion observes that the trial court’s order granting the motion for summary judgment does not mention the oral misrepresentation. This is accurate but irrelevant. The question before us is whether the evidentiary items presented by the moving party left a material question of fact unanswered, not whether the trial court employed a correct analysis in arriving at the conclusion it reached below. It is established beyond possibility of dispute that we will affirm a ruling of the trial court, including a grant of summary judgment, where the trial court reached the correct result for the wrong reason. See, e.g., Dunn v. Westbrook, 334 Ark. 83, 971 S.W.2d 252 (1998); Calcagno v. Shelter Mutual Insurance Co., 330 Ark. 802, 957 S.W.2d 700 (1997); Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); American Investors Life Ins. Co. v. Butler, 76 Ark. App. 355, 65 S.W.3d 472 (2002).
The majority appears to assume that the “motion to reconsider” in this case was a motion for a new trial. It is, however, unclear whether appellant’s posttrial motion was a motion for a new trial under Ark. R. Civ. P. Rule 59(b) or a motion for relief under Ark. R. Civ. P. 60(a). The distinction is important, generally, because the manner in which one perfects his appeal will depend upon which kind of posttrial motion he has filed. It is unimportant in the present case, however, because he simply failed to appeal from any action, deemed denied or otherwise, on his posttrial motion. He filed one notice of appeal — after the judgment but less than thirty days after the motion was filed. Moreover, the notice that was filed specified that the appeal was only from the judgment proper.