dissenting. I cannot agree with the majority that it was undisputed that forfeiture was unavailable to the parties. On the contrary, the Harvisons submitted an affidavit from an attorney, Randy Coleman, which stated that forfeiture was an available remedy under the facts of this case. That affidavit clearly qualifies as proof for the Harvisons’ position and just as clearly establishes a material issue of fact regarding any underlying facts that might prohibit forfeiture.
In this case there were two such underlying factual issues. The first was whether the Harvisons had waived their right to forfeiture due to an habitual receipt of late contract payments. (According to the Howards, there were eight late payments over seven years.) The second was whether liens against the Howards totalling $78,000 which attached to the Howards’ equitable interest in the land somehow prohibited forfeiture. The trial judge premised his decision on the lien issue and found that the liens were decisive in preventing forfeiture. Why this is so was not stated by the court.
The Coleman affidavit in support of the forfeiture remedy places these underlying factual matters in dispute. Whether the Harvisons implicitly waived their right to forfeiture is clearly a question of fact that should have been resolved at trial. See, e.g., Moore Ford Co. v. Smith, 270 Ark. 340, 640 S.W.2d 943 (1980); Freeman v. King, 10 Ark. App. 220, 662 S.W.2d 479 (1984). The issue of the liens is more troublesome. Assuming that the liens did attach to the land, the land could still have been forfeited to the Harvisons and the liens subsequently satisfied by them. This would have left title in the Harvisons, who stood to gain more than the balance of the contract price due to appreciation in the land’s value.
There is, too, the issue of whether the appellees communicated with their clients. The majority’s conclusion that this is irrelevant since the Harvisons got everything that they wanted simply does not hold water. The Harvisons made it very clear in their affidavit that they wanted the land back. What they got was the balance of the contract price — about $21,000 plus costs and fees. But with forfeiture, they could have retained title and benefitted from the land’s appreciation in value (from $55,000 to $115,000 in seven years) and the potential for greater appreciation in the future.
The appellees admit that they did not communicate the circuit court’s decision denying forfeiture and approving the sale to the third party to their clients. By the time that the Harvisons were made aware of it, the land had been sold. Even if you accept the trial judge’s conclusion that the forfeiture was not an available remedy, the Harvisons still had the right to retain the land and refuse a foreclosure sale. That right was denied them because of lack of communication from the appellees. The trial judge, however, granted summary judgment without making a finding on this pivotal point.
It may well be that, following trial, forfeiture would ultimately be unavailable in this case. But when critical issues of fact remain to be resolved, as was clearly the situation in this case, summary justice is inappropriate. I would reverse for a trial on the merits.
Hays, J., joins.