FIRST SOUTHEAST BANK v. McALLISTER, 705 N.W.2d 105 (Iowa App. 2005)

No. 5-319 / 04-0757Court of Appeals of Iowa.
Filed June 15, 2005

Appeal from the Iowa District Court for HowardCounty, James L. Beeghly, Judge.

Defendants appeal from the district court’s order granting summary judgment in favor of plaintiff, First Southeast Bank.AFFIRMED.

Michael Pedersen, Waterloo, for appellant.

Michael Dove and Peter Favorite of Gislason Hunter, L.L.P., New Ulm, Minnesota, and Loree Nelson of Gislason Hunter, L.L.P., Des Moines, for appellee.

Considered by Mahan, P.J., and Zimmer and Miller, JJ.

ZIMMER, J.

Defendants-appellants, John and Marie McAllister, appeal from the district court’s order granting summary judgment in favor of plaintiff, First Southeast Bank. We affirm the district court.

I. Background Facts Proceedings

In July 2003 First Southeast Bank (Bank) filed a verified petition against the McAllisters seeking amounts owed under four promissory notes and a mortgage executed by the McAllisters between 1998 and 2000.[1] The McAllisters have never filed or served an answer denying any allegations of the petition.

On March 18, 2004, the Bank filed a motion for summary judgment. On April 5, 2004, the McAllisters filed a resistance that relied solely on the affidavit of John McAllister. Following a hearing at which no additional evidence was received, the district court granted the Bank’s motion for summary judgment. The court stated, “While the defendants have raised generic allegations disputing plaintiff’s proof, they have set forth no specific facts to support their allegations.”

The McAllisters have appealed from this ruling. They contend the trial court erred in finding no genuine issue of material fact existed. They also claim the court erred in failing to delay its summary judgment ruling.

II. Scope of Review

Our review of a grant of summary judgment is for correction of errors of law. Wiedmeyer v. Equitable Life Assur. Soc’y of U.S., 644 N.W.2d 31, 33 (Iowa 2003). Summary judgment is appropriate only when the moving party shows there are no genuine issues of material fact. Wright v. American Cyanamid Co., 599 N.W.2d 668, 670 (Iowa 1999). We examine the record in the light most favorable to the party opposing summary judgment. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2001).

III. Discussion

We begin our discussion by mentioning that the appellants’ brief on appeal contains factual assertions and arguments regarding matters which are not part of the summary judgment record. A number of the factual assertions concern events which occurred long after the district court entered its summary judgment ruling. Under our rules of appellate procedure, we are not permitted to consider material which was not before the district court when it entered summary judgment. See Iowa R. App. P. 6.10(1). Accordingly, we have not considered any such material and we express our disapproval of its inclusion in the appellants’ brief.

The McAllisters first claim the district court erred in finding that there were no genuine issues of material fact which precluded entry of summary judgment. The Bank responds that the affidavit relied upon by the McAllisters failed to set forth disputed material facts and authorities and contained only vague allegations.

Because the Bank’s motion for summary judgment was properly supported as required by our rules of civil procedure, it was incumbent on the defendants to set forth specific facts showing there is a genuine issue for trial.[2] Upon review of the summary judgment record, we agree with the district court’s conclusion that the affidavit filed in resistance to the bank’s motion is insufficient to avoid summary judgment.

As we have already mentioned, the McAllisters have never filed or served an answer disputing their execution and delivery of the four notes and the mortgage at issue. The affidavit filed in resistance to the bank’s motion claims there are “serious discrepancies” with the bank’s claims regarding the amount owing. The affidavit suggests that over a period of approximately eight years, some of the McAllisters’ previous notes with the Bank had been paid more than once, and that notes had been generated where the proceeds were not applied for the McAllisters’ benefit. The affidavit does not identify any notes which are thought to be a problem and the affidavit does not address any specific instances of alleged deceit or any specific mistakes by the Bank. Significantly, none of the four notes at issue in this lawsuit are addressed in the affidavit and the McAllisters have not alleged fraud or mistake in connection with these notes. We conclude the district court properly sustained the Bank’s motion for summary judgment.

The McAllisters also claim the district court erred in failing to grant their request for a delayed ruling pursuant to Iowa Rule of Civil Procedure 1.981(6).[3] The problem with this contention is that the record on appeal contains no indication that this issue was preserved for our review.[4] The appellants’ affidavit states that the Bank’s motion is premature, but the summary judgment record contains no request for a continuance or delay and makes no mention of rule 1.981(6). Moreover, the district court’s summary judgment ruling makes no mention of any request for a continuance or a delay, and provides no basis for concluding that the court explicitly or implicitly “refused to delay” hearing on the Bank’s motion as appellants suggest.

The McAllisters’ brief on appeal appears to recognize a problem with error preservation exists regarding this issue because it states that the appellants’ “request for a delay was set forth more fully in the oral argument on the motion for summary judgment which unfortunately was not reported.” This explanation does not solve the problem. It is the appellants’ duty to provide a record on appeal which affirmatively discloses the alleged error relied upon. State v. Ludwig, 305 N.W.2d 511, 513 (Iowa 2002). Iowa Rule of Appellate Procedure 6.10(3) provides an appellant with the opportunity to develop a record on appeal when the lower court does not report the proceedings. The appellants have made no attempt to utilize this rule to develop a record for us to review on appeal. Obviously, we are not in a position to speculate regarding what took place at an unreported hearing. Since this issue was not preserved, we need not address it.

We conclude the district court properly granted summary judgment in this case. Accordingly, we affirm the district court.

AFFIRMED.