Trace X Chemical, Inc. v. Highland Resources, Inc.

579 S.W.2d 89, 265 Ark. 468, 1979 Ark. LEXIS 1373

• Court: Supreme Court of Arkansas
• Decided: April 9, 1979
• Docket: 78-292
• Status: Published

Opinions

. Frank Holt, Justice.

Appellee Highland brought suit alleging that appellant, its lessee, had breached various lease agreements and sought possession and damages for accrued rent. Appellant answered and counterclaimed alleging compliance with the lease agreements and asserted that appellee Highland was the party who had breached the leases. By counterclaim appellant sought damages for improvements made by it to the leased premises and requested that the cause be transferred to a court of law. Appellee Highland filed a motion for summary judgment, stating that there was no issue of fact as to the breach of the leases since both parties had alleged a breach. The chancellor granted Highland’s motion, finding that both had alleged breaches and that, based upon those allegations the lease agreements were terminated. Possession of the property was awarded to appellee Highland with the right to remove appellant’s property from the premises. The chancellor transferred the issues of liability and damages to the circuit court for determination. Hence this appeal.

We first consider appellee Highland’s motion to dismiss this appeal, asserting that the chancellor’s order is not appealable. We hold that the order is appealable since it concluded the parties’ rights to possession of the property. See Ark. Hwy. Comm’n. v. Kesner, 239 Ark. 270, 388 S.W. 2d 905 (1965); and Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967). Accordingly, we deny appellees’ motion to dismiss.

We next discuss appellant’s contention that the court erred in granting a summary judgment and awarding appellee Highland possession of the property. A summary judgment, being an extreme remedy, should only be granted when it is clear there is no issue of fact to be litigated; and, before one is entitled to a summary judgment, it is incumbent upon the movant, here the appellee, to show there is no existence of a fact issue. Robinson v. Rebsamen Ford, Inc., 258 Ark. 935, 530 S.W. 2d 660 (1975). The object of a summary judgment is not to try the issue but to determine if there are issues to be tried. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969). If there is any doubt whatever, it should be denied. Southland Ins. v. Northwestern Nat’l. Ins. Co. 255 Ark. 802, 502 S.W. 2d 474 (1973).

Here, as noted, appellee Highland alleged, inter alia, that appellant had breached in various ways the lease agreements between them. Appellant denied that allegation and alleged that appellee Highland was the breaching party. Appellees argue that appellant conceded that the leases had been breached in its response to the motion for summary judgment and supporting brief, where it made the statement: “True, there may not be a question that the leases have been breached .. . Both . . . allege in their pleadings that the leases have been breached . . . This fact may not be controverted. ” We do not agree that this was a concession that no controversy existed; appellant merely recognized the fact that it “might not,” which is different from saying that it “does not” exist. Each alleged a different, basis of a breach or breaches. The issue was which one breached the leases. An issue is not decided simply because both parties to a lawsuit allege the same conclusion of law. Here, both or either party could fail to meet the required burden of proof to show that the other breached the leases.

Appellant sought in its counterclaim to have the entire case transferred to a court of law. The chancellor, as indicated, after granting Highland possession of the property based upon its motion for summary judgment, transferred the remaining issues of liability and damages to a court of law. Since we hold the motion for summary judgment was incorrectly granted, we are of the view that the entire cause should be transferred to a court of law.

Reversed and remanded.

Fugleman, J., dissents.