
    Dorothy MESA v. Delores Wares, wife of/and Alphonse SPURLOCK.
    No. 99-CA-0868.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 3, 2000.
    Herman C. Hoffman, Jr., John F. Shreves, Christina H. Beleu, Simon, Pera-gine, Smith & Redfearn, L.L.P., New Orleans, Louisiana, Counsel for Plaintiff/Appellant.
    William W. Rosen, Rosen & Lundeen, New Orleans, Louisiana, Counsel for Defendants/Appellees.
    (Court composed of Judge WILLIAM H. BYRNES, III, Judge CHARLES R. JONES, Judge MOON LANDRIEU, Judge DENNIS R. BAGNERIS, Sr., and Judge MICHAEL E. KIRBY).
   J^LANDRIEU, Judge.

Dorothy Mesa appeals from the district court’s summary judgment granted in favor of Delores Wares and her husband, Alphonse Spurlock. The trial court ruled that the plaintiff, Dorothy Mesa, is es-topped from enforcement of her claim for additional interest payments from the defendants, as the mortgage debt has been paid in full. We reverse the district court’s granting of the motion for summary judgment and remand for a trial on the merits.

FACTS

On May 10, 1973, Dorothy Mesa and her husband Raymond Mesa, by act of credit sale, sold the real property located at 1333 Saratoga Street to Deloris Rowe (a.k.a. Delores Wares) and her husband, Alphonse Spurlock. The sale price was $78,-000. The Spurlocks paid $12,000 in cash and signed a promissory note for the $66,000 balance. The note was payable to “Order of Bearer” in equal consecutive monthly installments of $620.93 for a total of 234 months. The note was paraphed “Ne Varietur” for identification with an authentic act of credit sale executed on May 14, 1973. In the act of credit sale, the Spurlocks granted a mortgage on the property in favor of any holder of the note to secure its payment.

The Spurlocks paid each one of the 234 installments on the note; however, these payments were not always timely. The Spurlocks failed to pay the installments on the note in accordance with its terms and repeatedly failed to pay installments when due. Each payment was accepted regardless of its untimeliness. The only written demand from Mrs. Mesa to the Spurlocks was one letter in August of 1995. This letter advised them to “Please pay at least one payment per month, if not more, so that this debt can be retired.” Mrs. Mesa neither threatened |?nor took legal action to enforce the time limits of the payments. The final payment was paid on January 7, 1996, some twenty-six months later than the date set forth in the amortization schedule to make the 234th payment.

The Spurlocks then requested that Mrs. Mesa cancel the mortgage. Mrs. Mesa refused, and she filed suit against the Spurlocks. Mrs. Mesa claimed there was a principal balance of $19,218 on the note because of the multitude of late payments. The late payments were credited first to the interest by authority of Civil Code article 1866. Therefore, as Mrs. Mesa applied the delinquent payments to the interest first, and the interest had increased due to the delinquent payments, the Spur-locks still owed a principal balance. The Spurlocks answered the suit and filed a reconventional demand.

Mrs. Mesa moved for summary judgment against the Spurlocks in the principal amount of $19, 218 plus interest at the rate of 9)6 % per annum from January 10, 1996 until paid, and attorney’s fees in the amount of 15% of the principal and interest and for all costs of the proceedings, all in accordance with the terms of the note. Also, Mrs. Mesa sought to have the mortgage granted by the Spurlocks recognized and the property described therein seized and sold to satisfy the amount of any judgment rendered. The Spurlocks filed a cross motion for summary judgment contending that the note had been satisfied and that Mrs. Mesa was compelled to release the mortgage. The trial court granted the Spurlocks’ motion and denied Mrs. Mesa’s motion. Mrs. Mesa has appealed the granting of summary judgment in favor of the Spurlocks.

| «LAW AND DISCUSSION

On appeal, we address only the summary judgment rendered in favor of the Spurlocks. We do not consider the denial of Mrs. Mesa’s motion for summary judgment, as that ruling is not a final judgment. See La. Code Civ. Pro. Art. 968.

Appellate courts review summary judgment decisions de novo. See Walker v. Kroop, 96-0618 pp. 1-2 (La.App. 4 Cir. 7/24/96), 678 So.2d 580, 582. The motion for summary judgment is proper when the pleadings, depositions, answers, and omissions on file, together with the affidavits submitted, show there is no genuine issue of material fact, so that the mover is entitled to judgment as a matter of law. See Bijou v. Alton Ochsner Medical Foundation, 95-3074 p. 6 (La.9/5/96), 679 So.2d 893, 897. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute. See Godfrey v. Boston Old Colony Ins. Co., 97-2569, p. 4 (La.App. 4 Cir. 5/27/98), 718 So.2d 455, 457, writ denied, 98-2412 (La.11/20/98), 729 So.2d 556; Walker, supra, 678 So.2d at 583.

Paragraph C(2) of Code of Civil Procedure Article 966, added by Acts 1997, No. 483, sets forth the burden of proof in a motion for summary judgment:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The mover for summary judgment has the burden of affirmatively showing the absence of a genuine issue of material fact. See City of Carencro v. Faulk, 97 p.4014 p.4 (La.App. 3 Cir. 6/10/98), 715 So.2d 569, 571. Once the party moving for summary judgment meets his burden, the adverse party must present evidence demonstrating that material factual issues remain by producing factual support sufficient to establish that the adverse party will satisfy his evidentiary burden at trial. See Harrison v. Parker, 31-844, p. 3 (La.App. 2 Cir. 5/5/99), 737 So.2d 160, 162-63, writ denied, 99-1597 (La.9/17/99), 747 So.2d 565.

In support of their motion for summary judgment, the Spurlocks rely on the doctrine of forbearance, which they raised as an affirmative defense in their answer to plaintiffs petition. Therefore, to uphold the granting of summary judgment, we must first find that the defendants have affirmatively proved the defense of forbearance or forgiveness; i.e., that they do not owe the additional interest specified in the mortgage instrument for late payments because the plaintiff has either forgiven their debt or is es-topped from collecting it on account of forbearance. Secondly, we must find that the plaintiff has failed to establish the existence of a disputed material fact with regard to this issue.

The doctrine of forbearance is succinctly defined in First National Bank v. Higgs, 406 So.2d 673, 675 n. 1 (La.App. 2d Cir. 1981), as follows:

Forbearance is a circumstance which can give rise to estoppel. Forbearance exists when a creditor acquiesces in or tolerates substandard performance of an obligation by the debtor without exercising his rights to enforce the obligation, thereby implying that such conduct is sufficient.
When forbearance reaches the level of equitable estoppel the creditor will be barred from suddenly demanding strict performance in order to avoid injustice to the debtor. Calhoun v. Huffman, 217 So.2d 733 (La.App. 3d Cir.1969); Sternberg v. Mason, 339 So.2d 373 (La.App. 1st Cir.1976). However, the creditor’s mere acquiescence or forbearance by not using all of his rights, when accompanied by protest or complaints to the debtor, does not rise to the level of estoppel which will later bar the creditor from using those rights to enforce the obligation. Burris v. Gay, 324 So.2d 11, 14 (La.App. 2d Cir.1975), writs denied 326 So.2d 377.

An obligee’s mere gratuitous forbearance from exercising its legal rights under the instrument of indebtedness does not create an agreement to extend the period of indebtedness. John M. Parker & Co. v. Guillot, 118 La. 223, 42 So. 782 (1907). Similarly, an extension of the debt cannot be inferred from a mere forbearance to sue where no extension of time is ever expressly granted by the holder. See Mutual Nat’l Bank v. Coco, 107 La. 268, 31 So. 628 (1902).

After reviewing the record in the instant case, we find that the Spurlocks failed to meet their burden of affirmatively showing forbearance or forgiveness of their debt by the plaintiff because there remain genuine issues of material fact. The Spurlocks contend Mrs. Mesa accepted their late payments without complaining or putting them on notice that further interest was due. However, the additional interest accrued by operation of law as the payments were applied to interest first. Plaintiffs mere acceptance of the untimely payments without reminding the debtors of this fact does not, in itself, prove forbearance such that she is estopped from collecting the additional interest.

The only affirmative evidence of forbearance or forgiveness in the record is Defendant’s Exhibit C, an amortization schedule on which the plaintiff has initialed each payment made and acknowledged the remaining balance. However, several questions prevent this schedule from being sufficient proof of forbearance or forgiveness at this stage of the proceedings. The document in the record is only a partial schedule, beginning with payment number 121 made in 1985, some twelve years after the inception of the loan. More important, it is unclear how this schedule got into the record. Although it is a defendants’ exhibit, we are unable to | (¡determine whether this schedule was sent by plaintiff to defendants as payments were made during the course of the loan, or whether it was merely something the plaintiff kept for her own records that was placed in the record in response to a discovery request. These questions are significant as to the existence of forbearance. Since discovery requests no longer have to be filed in the record, it is impossible to discern answers to these questions without further proceedings in the trial court.

Moreover, there is a genuine issue of fact raised as to whether the plaintiff com-plainéd sufficiently about the untimeliness of the Spurlocks’ payments so as to defeat their defense of forbearance. This issue is raised by the plaintiffs August 1995 letter informing the Spurlocks of the balance of $25,796.78 due on the loan at that time “because of the lack of payments,” and exhorting them to please make at least one payment per month so that the debt might be retired. In addition, the plaintiff asserts, in her response to a request for production filed by defendants, that she believes she repeatedly advised Mr. Spur-lock orally of her dissatisfaction with his failure to pay the note timely. The document and the assertion of oral complaints are clearly enough to raise an issue for trial.

Because the defendants failed in meeting their burden of showing the absence of a genuine issue of material fact, we find the trial court erred in granting summary judgment in their favor. Accordingly, for the reasons stated, the judgment of the district court is reversed and the matter is remanded to the trial court.

REVERSED AND REMANDED.

BYRNES and BAGNERIS, JJ., dissent with reasons.

pBYRNBS, J.,

dissenting.

. I respectfully dissent. A careful review of the record indicates that there was forbearance and waiver on the part of the creditor/plaintiff, I must agree with the result reached by Judge Bagneris. The amortization schedule and handwritten notes thereon found at page 47 in the record are acknowledged by plaintiff at page 3 of her appellate brief. Plaintiff further acknowledges her handwritten initials next to each payment on the schedule in her answers to interrogatories. Plaintiff does not contest the authenticity of this payment schedule in the record, nor does she offer any explanation that would overcome the legal implications of the handwritten annotations on the face of the amortization schedule. In the absence of evidence to the contrary evidence, the only reasonable inference one would draw from plaintiffs initials next to each payment on the amortization schedule is that each such payment was accepted and allocated as between principal and interest by the plaintiff in accordance with that schedule. This should be sufficient to establish a prima facie case in favor of the defendants and shift the burden to the plaintiff. The majority characterizes the actions of the plaintiff as the “mere acceptance of the untimely payments,” but the initialing by the plaintiff of the amortization schedule, which shows how payments are to be apportioned as |?between principal and interest, is far more than the “mere acceptance of the untimely payments.”

The majority also expresses concern that the amortization schedule in the record begins with payment number 121 and lacks all prior payments. However, the plaintiff does not even begin to suggest that the production of that portion of the payment schedule dealing with the first 120 payments would tend to show anything inconsistent with that portion of the schedule that is in the record. The burden should be on the plaintiff to show that the earlier portion of the schedule would lead to a different conclusion.

This payment schedule, together with the defendants’ affidavit and answers to interrogatories, is sufficient to support the defendants’ motion for summary judgment and to shift the burden to the plaintiff. At trial plaintiff bears the burden of proving her case by a preponderance of the evidence. The plaintiffs conclusory affidavit and the copy of the solitary letter found at page 49 of the record are insufficient to show that the plaintiff will be able to discharge her burden of proof at trial. Summary judgment in favor of the defendants would be consistent with the current philosophy expressed by the legislature of favoring summary judgments. Accordingly, I would affirm the judgment of the trial court

hBAGNERIS, J.,

dissenting.

I respectfully dissent from the majority opinion in the above captioned case. The doctrine of forbearance defined in First National Bank v. Higgs, 406 So.2d 673, at footnote 1 (La.App. 2 nd Cir.1981), as follows

Forbearance is a circumstance, which can give rise to estoppel. Forbearance exists when a creditor acquiesces in or tolerates substandard performance of an obligation by the debtor without exercising his right to enforce the obligation; thereby implying the conduct is sufficient.

When the forbearance reaches the level of equitable estoppel the creditor will be barred from suddenly demanding strict performance in order to avoid injustice to the debtor, Calhoun v. Huffman, 217 So.2d 733 (La.App. 3rd Cir.1969);
Sternberg v. Mason, 339 So.2d 373, 377 (La.App. 1st Cir.1976). However, the creditor’s mere acquiescence or forbearance by not rising all of his rights, when accompanied by protest or complaints to the debtor, does not rise to the level of estoppel which will later bar the creditor from using those rights to enforce the obligation. Burris v. Gay, 324 So.2d 11, 14 (La.App. 2nd Cir.1975), writs denied 326 So.2d 377 (La.1976). (Emphasis added.)

The Spurlocks rely upon the doctrine of forbearance in their contention that Mrs. Mesa is estopped from claiming that the late payments caused interest to accrue on the debt, so that the payments calculated according to the amortization schedule did not completely satisfy the indebtedness.

Mrs. Mesa contends that under the law, if one takes longer to pay a debt than originally scheduled, one will owe additional interest at the rate stated in the note. The late payments will be credited first to the interest by authority of the LSA-C.C. IgArt. 1866. Therefore, as Mrs. Mesa applied the delinquent payments to the interest first, and the interest had increased due to delinquent payments, the Spurlocks still owes a principal balance. Mrs. Mesa acknowledges that under the doctrine of forbearance, her acceptance of late payments may mean that she cannot complain about or accelerate the debt because of future late payments. However, Mrs. Mesa contends that forbearance is not the same as forgiveness of a debt, the running of interest on the debt was not “ magically suspended” during the time that" the month payments were late, and therefore the Spurlocks still owed a principal balance.

The issue to decided is whether the doctrine of forbearance estops a creditor from collecting the additional interest owed on a note, due to habitual late payments by the makes of that note, when the creditor has failed to inform the maker that she will no longer tolerate late payments and will enforce all the rights she has by that note. Mrs. Mesa relies upon a federal fifth Court of Appeals opinion that discusses applicable Louisiana law, for the proposition that forbearance does not effect an extension or waiver of an obligation. Federal Deposit Ins. Corp. v. Louisiana National Bank, 653 F.2d 927, 928 (5th Cir.1981), involved two banks, the ICB and LNB, and their relationship after with the FDIC took over the failed ICB. At trial one of the issues litigated was whether LNB in some way waived rights upon default either by failing to immediately offset the deposits against the $500,000 owed by ICB on the notes and by allowing numerous withdrawals to be made on ICB-accounts after the date of acceleration, or by failing to take affirmative steps to collect the debt after sending the notice. The court found that absent an express agreement by LNB to forbear, LNB’s failure to file suit on the debt or to undertake other collection efforts was not sufficient to constitute a waiver. See Id. at 941. The Court relied upon Louisiana jurisprudence, which held that the obligee’s mere gratuitous forbearance from exercising its legal rights under the instrument of indebtedness does not create an agreement to extend |3the period of indebtedness. See Id. at 940 (citing Parker v. Guillot, 118 La. 223, 42 So. 782 (1907)). Similarly, an extension of the debt cannot be inferred from a mere forbearance to sue where the holder never expressly grants any extension of time. See Id. (citing Mutual National Bank v. Coco, 107 La. 268, 31 So. 628 (1902)).

The FDIC case is distinguishable from the issue before this court. In FDIC, the forbearance had not reached the level of equitable estoppel. LNB sent two letters to ICB stating that an event of default had occurred and declared the principal and accrued interest on tile notes were immediately due and payable. See id. at 929. The one letter sent by Mrs. Mesa to the Spurlocks did not deny that they bring the debt to a current status or that she would foreclose. The letter said, “Please pay at least one payment per month, if not more, so that this dept, [sic] can be retired.”

No payments had been made by ICB on the indebtedness. .The Spurlocks made all payments, albeit they were severely delinquent. Seven months after the letters from LNB, ICB was placed in receivership to the FDIC because of its unsound condition. At that time, LNB set off ICB deposits with LNB in order to partially recoup the amount owed on the note. The issue in FDIC was whether the dividends paid by ICB constituted default under the note agreement. The court found that the actions of ICB did constitute default. The Court found that the contract was modified absent an express agreement between LNB and ICB. The forbearance of LNB did not extend the period of the indebtedness or waive the obligation: LNB could set off the debt by seizing the deposits of ICB held by LNB.

In the instant case, the Spurlocks are not claiming that the promissory note was modified such' that there was a waiver of the obligation or extension of the due date. The Spurlocks claim that Mrs. Mesa’s action reached the level of equitable estoppel so that she is barred from suddenly demanding strict performance. In addition, Mrs. Mesa claims that her forbearance did not result in modification of |4the promissory note. In Resolution Trust Corp. v. Murray, 935 F.2d 89, 96 (5th Cir.1991), the Court found under Louisiana law that a savings and loan did not consent to modification of the original notes by continuing to accept maker’s inadequate monthly payments. The holders of the notes brought suit to enforce the notes executed by the makers. The two notes each had a substantial balloon payment that had not been paid. While the Murrays had made several payments toward the debt, they failed to make the required balloon payments of the remaining balances and truly cure the defaults on the two notes. See id. at 95.

The holder filed suit on the two notes approximately three months after the maturity date of the later note had passed with no payment made by the Murrays on the substantial balance owed. See id. at 91. Before the suit was filed, the holders made written demand for the Murrays to pay the matured loans. The balanced owed by the Murrays was in excess of eight hundred thousand dollars, yet the Murrays contended that a proffered payment of $4,160 would have brought the loan current, but the holder returned-the payment as insufficient. See id. at- 95. The court states in a footnote, “[wjere we to construe this contention to mean that (the Holder) somehow modified the original contracts by accepting monthly payments after the maturity dates of the notes, we would nevertheless have to hold that Louisiana law does not support it.... The loans were already in default and demandable. While Louisiana law recognizes modification of written contracts by oral agreement or by the conduct of the parties in certain contexts (citation omitted),implication that the December bill is a modification, accompanied with the Mur-rays’ “impression” of the status of the loans, without more, is not sufficiently specific to raise a fact issue and defeat summary judgment.” Id. at 96.

This situation is. not analogous to the issue before this Court in the instant case. In Murray, the makers owed a substantial balance and the holders, after |snotifying the makers, refused to accept any payment other than the full amount due. Well after the loan matured, the Murrays continued to offer inadequate payment. If Mrs. Mesa had returned the payments made by the Spurlocks after the maturity of the note, demanding that the comply with the terms, this would be a situation analogous to the one in Mwiray. The Murray court addressed contract modification, not forbearance.

Mrs. Mesa’s action would constitute forbearance if she had notified the Spurlocks of her refusal to continue accepting inadequate payments, then returned the inadequate payments and sought legal redress to compel the payments owed. Between the Mesas and the Spurlocks there developed “a course of conduct, i.e., routine late payments without complaint or objection over an extended period of time sufficient to create a justifiable belief that it is of no moment.” Sternberg v. Mason 339 So.2d 373, 377 (La. Ct.App.1st Cir.1976). When such a course of conduct has developed, it is essential in the interest of fairness that the obligee make known to the obligor his intent to discontinue acceptance of late payments. Id.

The court in Sternberg discussed the doctrine of forbearance at length. The maker did not make payment on time. The holder’s attorney sent a demand letter in which it was indicated that the suit would be instituted because of continuing delinquency. The maker them forwarded two payments to the holder, which were rejected; the holder declared that the entire balance was due. The trial court, relying upon Motor Liens v. Motion Picture Adver. Serv. Co., 164 La. 440, 114 So. 89 (1927), held that the holder was not barred from accelerating the note because of her repeated acceptance of late payments.

The Louisiana Second Circuit Court of Appeals overturned the decision of the trial court. The law applicable to situations such as the one before the \ (Sternberg court was set out with particularity in Rex Credit Co. v. Kirsch, 4 So.2d 797, 799 (La. Ct.App. 4th Cir.1941). See Sternberg, 339 So.2d at 376.

It thus appears there are two lines of cases, one holding that a stipulation providing for acceleration or for some other such harsh right is waived where the holder of the note, or an obligee in a contract, permits a departure front the strict provisions of the contract, and the other line of cases which does not seem to be in conflict, which holds that there is no waiver if the obligor or the maker of the note is put on notice in advance that the granting of such indulgences or delays will not be considered as a waiver of the right to insist upon the strict enforcement of the stipulation of the note or contract. See Id. citing Rex Credit

The fiurst line of cases emanates front the holding in Standard Brewing Co. v. Anderson, 121 La. 935, 46 So. 926 (1908), which stands generally for the proposition that where a series of installment payments are due and the payee customarily permits payments to be made after the date on which they are due, there is established a course of conduct whereby the payee, by acquiescence therein is deemed to have waived his right to demand than an acceleration clause be enforced without first placing the payor in default thereby signaling an end to such conduct. See id. The basis for such a rule is to prevent an obligee from lulling an obligor into a false sense of security by accepting late payments over an extended period of time, without demand for punctuality, and, then at a future date of his own choosing accelerate the entire balance due on the obligation when the “late” payment complained of fall within the same pattern. Id.

The court addressed the issue of contracts that contains a provision that failure to strictly and promptly enforce the conditions of the agreement shall not operate as a waiver to enforce the terms thereof at any time and without the necessity of demand or putting in default. The court declared that it did not view the jurisprudence as authority for the proposition that in each and every case where a contract contains such provision the conduct of the obligee is immaterial and that |7such obli-gee is immaterial and that such obligee is entitled to strict enforcement of an acceleration clause regardless of the circumstances. See id. at 377. Of course, an obligee is entitled to have the contract strictly complied with. But when there has developed a course of conduct sufficient to create a justifiable belief that it is of no moment, it is essential in the interest of fairness that the obligee make known to the obligor his intent to discontinue acceptance of late payments. See id.

The third case relied upon by the appellant is not applicable to the issue before this court. Society of Roman Catholic Church v. Interstate Fire & Cas. 126 F.3d 727 (5th Cir.1997), is lengthy opinion concerning insurance contracts, a completely separate laws. The Court discussed in detail the Louisiana regarding contract modification, but did not discuss forbearance or the effect of forbearance on a contract.

The issue and the fact pattern before this court is better addressed by applying the holding of Sternberg 339 So.2d at 373 and Fred H. Moran Construction Corp. v. Elnaggar, 441 So.2d 260 (La.App. 1st Cir. 1983). In Elnaggar, the court affirmed the trial court decision that the creditor acquiesced in a course of conduct that tolerated routine late installment payments without complaint, that the creditor did not put the debtor on notice that no additional late payments would be accepted and that if payment, was not timely executory proceedings would be initiated. See id. at 263. The collection ledger shows the debtors monthly installment payments for ten month period; of these ten payments, three were made on time, five were less than five days late and two were ten or more days late. When the eleventh payment was three days late, the creditor chose not to accept it and sue for executory process on the mortgage note. The creditor may have been motivated to sue for executory process as the debtors had filed an action | Rin redhibition against him. Nonetheless, the court found that the mortgagor proved the affirmative defense of forbearance on the part of the mortgagee.

The situation before this court differs from the facts in Elnaggar and Sternberg in that Mrs. Mesa, after sending one complaint notice, received the rest of the payments according to the amortization schedule, and then instituted legal proceeding to collect additional interest because of the untimeliness of the payments. In Elnag-gar and Sternberg, the creditors weary of the delinquent behavior of the debtors, took legal action before the debt had been fully paid. The courts found that the creditors in Elnaggar and Sternberg were prevented by forbearance from lulling the obligor into a false sense of security by accepting late payments over an extended period of time and then at a future date accelerating the balance of security and waited until the entire original loan amount was paid before demanding compensation for the untimely payments. Mrs.Mesa tolerated the substandard performance of the Spurlocks without exercising her right to enforce the obligation, therefore implying that such conduct was sufficient. The forbearance reached the level of equitable estoppel so that she was barred from suddenly demanding, after many years, strict performance of the obligation.

CONCLUSION

Accordingly, I find no error in the trial court granting of Spurlocks’ motion for summary judgment. Therefore, I would affirm the trial court’s granting of summary judgment in favor of the Spurlock and affirm the denial of Mrs. Mesa’s motion for summary judgment.  