Paradigm Hotel Mortgage Fund v. Sioux Falls Hotel Co.

SABERS, Justice

(dissenting).

The circuit court granted partial summary judgment despite conflicting affidavits on the value of foreclosed property. Mortgagor Hotel and guarantor Willis appeal. We should reverse and remand for trial because a genuine issue material fact exists as to the value of the mortgaged property.

The standard of review of a grant or denial of summary judgment is well settled:

In reviewing a grant or a denial of summary judgment under SDCL 15 — 6—56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Waddell v. Dewey County Bank, 471 N.W.2d 591, 593 (S.D.1991) (citations omitted). Summary judgment is an extreme remedy and is inappropriate to dispose of factual issues. This court is not bound by the factual findings of the trial court and must conduct an independent review of the record. Koeniguer v. Eckrich, 422 N.W.2d 600, 601 (S.D.1988) (citations omitted).

Paradigm submitted affidavits from Curtis D. Elton and Don R. Mangum in support of its motion for partial summary judgment. An appraisal of the property by Bill Hobson, a licensed member of the Appraisal Institute (M.A.I.), was appended to Elton’s affidavit. Hobson valued the property at $250,000.

Hotel filed an affidavit of Robert Wilson (R. Wilson), also a licensed M.A.I., in resis*571tance to Paradigm’s motion for summary judgment. R. Wilson stated in his affidavit that in his “professional opinion [ ] the fair market value of the property is substantially more than $250,000.” Attached to R. Wilson’s affidavit was a letter from Frank D. Wilson, M.A.I., which affirmed the September 1, 1988 appraisal in which the property was valued at $453,000. According to the letter, the property maintained this value through April, 1990, the date of the last evaluation by the company. He concluded, however, that a “new appraisal report needs to be undertaken by our firm before I can make a persuasive estimate of current value.” The circuit court entered a judgment against Defendants, jointly and severally, in the amount of $666,568.47 and set a value of $250,000 on the property.

In viewing the evidence in the light most favorable to Hotel and Willis, the nonmoving parties, and resolving all reasonable doubts in their favor, Paradigm has failed to demon-' strate the absence of a genuine issue of material fact. The affidavit of R. Wilson clearly establishes that the value of the property, a material fact, was at issue. Paradigm also argues that the affidavit of R. Wilson fails to meet the requirements of SDCL 15-6-56(e).1 While the affidavit and the letter do not establish a specific value, they demonstrate R. Wilson’s competency to testify to a value “substantially more than $250,000.”

In granting summary judgment on the issue of property value, the circuit court stated:

I am going to rule in favor of the Plaintiffs. I think that the appraisal has been laying out there a long time and, I think you have done nothing to counter it. I agree with the Plaintiffs that it is more bald assertions than anything else. I find there is no material issue of fact. If. there is, that the Defendant has not developed one and, therefore, I grant summary judgment on the motion. (Emphasis added).

The court erred in placing the burden of developing the issue of fact on Defendants when it should have held a trial to resolve conflicting affidavits as to value. State v. Thiewes, 448 N.W.2d 1, 2-3 (S.D.1989); SDCL 15—6—56(c); SDCL 21-47-16.2 For summary judgment purposes, Paradigm had the burden and failed to demonstrate the absence of a material issue of fact, specifically the value of the mortgaged property. Koeniguer, 422 N.W.2d at 602-03; Thiewes, 448 N.W.2d at 2-3. We should reverse and remand for trial.

. SDCL 15-6-56(e) provides in part:

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.

. SDCL 21-47-16 provides:

If the holder of such mortgage is not willing at such sale to bid the full amount of the judgment debt, such mortgage holder shall establish at the time of the trial by competent proof to the satisfaction of the court, the fair and reasonable value of the mortgaged premises, and the court shall determine the same in its decree. If the court shall find such fair and reasonable value, less the sum of the balances due as of the date of judgment on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments, to be less than the sum due on said mortgage, with costs and disbursements, and costs and expenses of sale, it may by such decree authorize such mortgage holder to bid not less than the fair and reasonable value as thus determined, less the sum of the balances due, as of the date of sale, on any prior liens and encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments; and if a deficiency remains after the foreclosure sale, such mortgage holder shall be entitled to a general execution for such deficiency only upon application to the court in which the judgment was rendered. (Emphasis added.)