Churchill Business Credit, Inc. v. Pacific Mut. Door Co., 94-2712

• Decision Date: 10 March 1995
• Docket Number: No. 94-2712,94-2712
• Citation: 49 F.3d 1334
• Parties: 25 UCC Rep.Serv.2d 1287 CHURCHILL BUSINESS CREDIT, INC., Plaintiff-Appellee, v. PACIFIC MUTUAL DOOR COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1334

49 F.3d 1334

25 UCC Rep.Serv.2d 1287

CHURCHILL BUSINESS CREDIT, INC., Plaintiff-Appellee, v. PACIFIC MUTUAL DOOR COMPANY, Defendant-Appellant.

No. 94-2712.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1995.

Decided March 10, 1995.

Thomas J. Okeneski, Minneapolis, MN, argued for appellant.

Paul Laurin Ratelle, Minneapolis, MN, argued for appellee (Richard G. Jensen, on brief).

Before FAGG, LOKEN, and MURPHY, Circuit Judges.

DIANA E. MURPHY, Circuit Judge.

Pacific Mutual Door Company (PMD) appeals from the summary judgment ordered by the district court ¹ in favor of Churchill Business Credit, Inc. (Churchill) on its claim of conversion. We affirm.

This controversy grows out of a business loan Churchill made to Sawyer-Cleator Lumber Company and its subsidiaries, Window Warehouse, Inc., and Millwork Supply Company (collectively Sawyer-Cleator) in March, 1990. As a condition of advancing funds, Churchill entered into security agreements with the companies which gave it security interests in their personal property, including existing and after-acquired inventory. The security agreements, which were properly filed with state and local authorities, provided that Sawyer-Cleator would not change "the location of any Collateral (except for sales of Inventory in the normal course of business) until [it] obtained the written consent of [Churchill]." Churchill Security Agreement at 15 (Sawyer dep. exh. 15, Appellant's app. at 161.) Sawyer-Cleator later turned over some of the collateral to PMD without Churchill's written consent, and Churchill claimed conversion. PMD responded that Churchill orally waived the consent requirement so the collateral was not converted.

PMD, a wholesale supplier of millwork products, had a longstanding business relationship with Sawyer-Cleator and permitted it to pay for goods with a thirty day revolving credit account. In 1990, however, PMD began requiring Sawyer-Cleator to pay cash on delivery because of an outstanding account balance. In August PMD refused to make any further sales to Sawyer-Cleator which then sought to return inventory to PMD in order to reduce its account balance. Although PMD was aware of Churchill's security interest in property of Sawyer-Cleator, it agreed to the return of the inventory, which was delivered on September 11, 1990. PMD credited Sawyer-Cleator's account with $95,665.10. ² Although Sawyer-Cleator hoped the return would restore the parties' business relationship, PMD did not resume sales. Instead, it sued Sawyer-Cleator in September, 1990 to recover on the past due accounts.

After Sawyer-Cleator went out of business in late 1990, Churchill brought this diversity action against PMD, ³ alleging that PMD unlawfully converted the returned collateral. The district court granted Churchill's motion for summary judgment, ruling that PMD failed to submit admissible evidence to support its affirmative defense that Churchill had waived the terms of its security agreement. On appeal, PMD contends that genuine issues of material fact preclude summary judgment on the question of waiver.

We review a district court's grant of summary judgment de novo, applying the same standards as the district court. Dillaha v. Yamaha Motor Corp., 23 F.3d 1376, 1377 (8th Cir.1994). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). The mere existence of some alleged factual dispute will not defeat a properly supported summary judgment motion; the dispute must be genuine. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; Matsushita Elec. Indus. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The record must, however, be read in the light most favorable to the nonmoving party. Celotex v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986).

Under the Uniform Commercial Code as adopted by Minnesota, a security interest continues in collateral "notwithstanding sale, exchange, or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise." Minn.Stat. Sec. 336.9-306(2). If the secured party authorizes a sale, exchange, or other disposition, its interest is extinguished. Authorization may be shown by oral consent which acts as a waiver of a security agreement provision requiring that authorization to dispose of collateral be in writing. Citizens Nat'l Bank v. Mankato Implement, 441 N.W.2d 483, 486-87 (Minn.1989). Waiver is the "intentional relinquishment of a known right" and must be clearly apparent from the circumstances. Hauenstein & Bermeister, Inc. v. Met-Fab. Indus., 320 N.W.2d 886, 892 (Minn.1982).

PMD asserts it has submitted evidence which raises a genuine issue about waiver under Minnesota law. It points to the affidavit and deposition testimony of Sawyer-Cleator official Charlie Sawyer, who asserts that he told Churchill president Karen Turnquist and other Churchill employees that PMD was willing to accept inventory for return and would credit Sawyer-Cleator's accounts. He claims that Churchill "authorized [him] to negotiate and conclude the return for credit" with the understanding that PMD would continue to supply Sawyer-Cleator with materials. Sawyer aff. p 11; Sawyer dep. at 92. PMD also points to the affidavit and deposition testimony of its St. Paul branch manager, Bruce Schneider, who stated that Sawyer told him Churchill had authorized the return. PMD argues that Sawyer's testimony, substantiated by Schneider's, raises an issue of fact about whether Churchill waived the written consent provision in the security agreement.

PMD's evidence indicates at most that there is a factual dispute about whether Churchill authorized release of the collateral. ⁴ The existence of a factual dispute is not sufficient to preclude entry of summary judgment, however, where the evidence presented by the nonmoving party is insufficient to permit a finding in its favor on the disputed issue. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54; Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510; Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. PMD presented no evidence about the details of the alleged authorization or of Sawyer's discussions with Turnquist. Sawyer's vague testimony is conclusory and lacks detail. It is insufficient under Minnesota law to raise a genuine question about whether Churchill knowingly waived its right to consent in writing before Sawyer-Cleator changed the location of the collateral. ⁵ See Citizens Nat'l Bank v. Mankato Implement, 441 N.W.2d at 487; Hauenstein & Bermeister, 320 N.W.2d at 892. Moreover, Schneider's testimony recounting what Sawyer allegedly told him does not raise a genuine fact issue because it is hearsay. ⁶ A party opposing a motion for summary judgment "must show that admissible evidence...