NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

TERRY CRABTREE, JUDGE

DIVISION I

GEORGE S. MACKEY, et ux, et al

APPELLANTS

V.

FIRST COMMUNITY BANK

APPELLEE

CA 00-1043

JUNE 6, 2001

APPEAL FROM THE PULASKI COUNTY CHANCERY COURT

[NO. EQ 00-122]

HONORABLE ALICE SPRINKLE GRAY, CHANCERY JUDGE

AFFIRMED

The appellants, George S. Mackey and Michelle Mackey, appeal from the Pulaski County Chancery Court's order granting summary judgment in favor of the appellee, First Community Bank. On appeal, appellants argue that there were genuine issues of material facts to be decided, and thus the chancellor erred in granting summary judgment. We disagree, and affirm.

This case involves a promissory note executed by appellants in favor of appellee. On January 18, 1999, appellants executed the promissory note in the principal amount of $149,600. The promissory note financed the construction of a house in Maumelle, Arkansas. Also on January 18, 1999, appellants secured the note by executing a mortgage in favor of appellee, together with an assignment of rents. The note had a maturity date of July 18, 1999. The loan was extended on July 19, 1999, by the execution of a new note in the same principal amount maturing on January 19, 2000. The second promissory note required payment of accrued interest beginning August 19, 1999, and

on the 19th day of each month thereafter until maturity. Appellant failed to pay accruing interest after August 19, 1999. This constituted a default of the note, and the debt was accelerated. On January 7, 2000, appellee filed a complaint for foreclosure.

On February 17, 2000, appellee filed a motion for summary judgment. Appellants did not file a response. However, appellants requested and were granted a hearing on appellee's motion for summary judgment. At the hearing, appellants presented an affidavit of appellant George Mackey. The affidavit alleged that appellee's president, Mark Ferguson, caused appellants to allow Scott McLain, an alleged friend of Mr. Ferguson's, to stay in the house rent free. On May 19, 2000, an order granting summary judgment and foreclosure was entered in favor of appellee. Subsequently, appellants filed a motion for a new trial which was denied. It is from these adverse decisions that appellants bring this appeal.

As a side note, during the pendency of this case on appeal, appellee filed with this court a motion to dismiss the appeal. Appellee argued that the May 19, 2000, order was not a final appealable order. A decree that orders a judicial sale of property and places the court's directive into execution is a final order and appealable under Ark. R. App. P. -Civ. 2(a)1. Alberty v. Wideman, 312 Ark. 434, 850 S.W.2d 314 (1993). Thus, we hold that the May 19, 2000, order was a final appealable order, and as such appellee's motion is denied.

In reviewing summary judgment cases, we determine whether the trial court's grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Norris v. State Farm & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). Once the moving party meets the burden of establishing a prima facie entitlement to summary judgment, the party resisting the motion must demonstrate that there is indeed a genuine issue of material fact to be determined. Sanders v. Bradley Co. Human Servs. Pub.Facilities Bd., 330 Ark. 675, 956 S.W.2d 187 (1997). This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Appellants argue on appeal that George Mackey's affidavit contained allegations sufficient to create a genuine issue of material fact, and as such summary judgment was improper. Appellants argue that they were implicitly forced by Mr. Ferguson to let Mr. McLain stay in the house rent free until Mr. Mackey finished construction of Mr. McLain's new house. Mr. Mackey's affidavit alleged that he allowed Mr. McLain to live in the house due to fear of future retaliation by appellee if he removed him. The affidavit alleged that Mr. McLain was occupying the house when appellants had placed the house on the market for sale and had two buyers who were ready, willing, and able to purchase the property. Appellants argue that there is a "genuine issue as to whether Ferguson, as a bona fide agent of the appellee, caused the appellants to default on their obligation to pay rents up to the amount of the monthly note payment."

Appellants' argument fails to address the real issue of whether they defaulted on their obligation to pay monthly interest, which was not contingent on their receipt of rental payments. Allegedly, appellants received no rent from Mr. McLain, and appellee concedes that it never made a request for payment of rents. Thus, appellants never had anything to pay over, and could not have been in violation of the agreement regarding assignment of rents.

Appellants fail to present any genuine issue of material fact with respect to the issue of their obligation to pay monthly interest or else be in breach of the July 19, 1999, promissory note. Therefore, we hold the chancellor did not err when she granted summary judgment and foreclosure in favor of appellee.

Affirmed.

Stroud, C.J., and Hart, J., agree.