dissenting. The majority court reverses this case based upon its belief that a genuine issue of material fact exists that must be resolved below. With all due respect, I could not disagree stronger, and would suggest if this is not a case for summary judgment, then none exists. Perhaps, stung a bit by this dissent, the majority opines I misunderstand summary judgment procedure. While not a professed expert on the subject, I would hope our main difference in this matter is one more on the law and what evidence we believe is necessary when determining if a material factual dispute exists than it is one concerning a misunderstanding or ignorance of summary judgment procedure. Be that as it may, the reader may decide.
In this appeal, we received skillful arguments from both sides; so skillful, I believe, that this court has bought a red herring. For example, Ark. Stat. Ann. § 1-205 (Repl. 1976) is the controlling law here when determining whether a material fact issue exists and whether summary judgment should have been granted below. Under that statute, when a district court construes any statute, including a penal one, a person who acts in good faith conformity with that court’s statutory construction cannot be liable for any penalty proscribed by that statute. That is exactly what occurred here. On March 12, 1983, Judge Bullion, in construing Amendment 60 to the Arkansas Constitution, ruled the lawful interest rate on consumer contracts is 17% per year, regardless of what the Federal Reserve Discount Rate might be. On July 1,1983, appellants purchased a vehicle from One Moore Ford, signing a retail installment contract which indisputably conformed with Judge Bullion’s March 12th ruling. On July 11, 1983, this court issued an opinion, reversing Judge Bullion’s decision and declaring the maximum amount of interest a lender can charge on consumer loans is the lesser of 17% or 5% above the Federal Reserve Discount Rate. Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983).
The foregoing evidence encompasses the only relevant events necessary to decide this case. Nonetheless, appellants seize on the term “good faith” employed in § 1-205, and, as one would expect, they argue proof of good faith necessarily requires a factual determination, which has not been resolved in this case. Appellants then proceed to weave their own good faith issue by introducing consumer contracts appellee used with other customers and executed before Judge Bullion’s decision. The purpose? The appellants say those other contracts show the appellee was not really relying on Judge Bullion’s decision when entering into its contract with them because it employed the same consumer contract both before and after Bullion’s decision. Assuming arguendo this to be true, I fail to see what difference any of that makes to the case at hand.
Clearly, the parties’ contract here wholly conformed with Judge Bullion’s decision and the parties entered into their contract after the Bullion decision and before it was reversed. Appellants submit not one bit of evidence that bad faith was involved on appellee’s part. The appellee, on the other hand, did submit all that was necessary to support its motion and to meet its burden: (1) the parties’ contract, which was dated and contained all the necessary information concerning their transaction and (2) a copy of Judge Bullion’s March 12, 1983, decision. All the trial court had to do was read the pleadings, attachments, motions and responses to decide if the parties’ contract conformed with Judge Bullion’s decision.
The consumer contracts the appellants argue in this cause, I submit, have no relevance and do nothing more than divert this court’s attention from the real, material issue involved: whether the contract now before us is in conformity with Judge Bullion’s construction of Amendment 60. Even appellants do not argue their contract failed to conform; they merely contend “the [trial] court was in no position to state appellee acted in good faith upon relying on the [chancellor’s] decision.”
The majority dilutes the importance of whether the parties’ contract was in conformity with Judge Bullion’s decision, but rather returns this case to determine appellee’s mind set at the time the contract was signed. I simply fail to see the significance or relevance of such an endeavor. On remand, the trial court will ask, “Did you, appellee, rely upon Judge Bullion’s March 1983 decision when executing the contract with appellants, and did you do so in good faith?” Of course, the answer will be yes. Besides being a waste of judicial time, I believe it is entirely irrelevant. After the appellee met its burden, the appellants’ so-called good-faith reliance issue, in my opinion, was (and is) in reality a non-issue — or at least an immaterial one.
Appellee contracted with appellants after and in conformity with Judge Bullion’s decision, and immediately reformed the contract to conform with the supreme court’s decision overturning the lower court’s decision. There being no dispute to these facts, this court should affirm the trial court’s granting of summary judgment, barring the penalties provided for usurious contracts under Amendment 60.
Hickman and Hays, JJ., join in this dissent.