Doud v. First Interstate Bank of Gillette, No. 88-268

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before CARDINE; MACY
• Citation: 769 P.2d 927
• Parties: Ben R. DOUD, debtor-in-possession, and Lakeway Development, a partnership, Appellants (Plaintiffs), v. FIRST INTERSTATE BANK OF GILLETTE and Homer A. Scott, Jr., Appellees (Defendants).
• Docket Number: No. 88-268
• Decision Date: 01 March 1989

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769 P.2d 927 Ben R. DOUD, debtor-in-possession, and Lakeway Development, a partnership, Appellants (Plaintiffs),
v.
FIRST INTERSTATE BANK OF GILLETTE and Homer A. Scott, Jr., Appellees (Defendants). No. 88-268. Supreme Court of Wyoming. March 1, 1989.

Georg Jensen of Law Offices of Georg Jensen, Cheyenne, for appellants.

Robert G. Berger of Lonabaugh and Riggs, Sheridan, for appellee First Interstate Bank of Gillette.

Kim D. Cannon of Burgess & Davis, Sheridan; and Myron L. Listrom and Ann L. Hoover of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, Kan., for appellee Homer A. Scott, Jr.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

MACY, Justice.

Appellants Ben R. Doud and Lakeway Development filed an action against appellee First Interstate Bank of Gillette alleging breach of a contract to lend money and against appellee Homer A. Scott, Jr. alleging tortious interference with contractual rights between appellants and First Interstate Bank. The district court granted summary judgments in favor of appellees.

We affirm.

Appellants present the following issues for our review:

1. Did the District Court err in granting summary judgment on the question of whether a contract existed between [appellants] and [appellee] First Interstate Bank--Gillette[?]

2. Did the District Court err in granting summary judgment on the question of whether [appellee] Scott tortiously interfered with a contractual relationship between [appellants] and [appellee] First Interstate Bank--Gillette or others[?]

Doud served on the board of directors of First Interstate Bank during the years 1983 and 1984, and he was a partner in Lakeway Development. During his term as a director of First Interstate Bank, Doud received a line of credit for the year 1983. He also received a line of credit for the year 1984, with that credit line to expire on January 17, 1985. In late 1985, Doud, who was no longer a director of the bank, sought financing for a business purchase

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to be made through Lakeway Development. Consequently, Doud approached Ronald Ostermiller, who was then president of First Interstate Bank, regarding a loan or a line of credit. In January 1986, First Interstate Bank, through Ostermiller, informed Doud that the requested funds would not be advanced.

On December 31, 1987, Doud filed this action alleging, inter alia, breach of contract to loan money against First Interstate Bank and tortious interference with contract against Scott, a director of First Interstate Bank throughout all times material to this suit. Due to his involvement in bankruptcy proceedings and the involvement of Lakeway Development in the transaction for which Doud had sought financing, Doud was allowed to amend his complaint to designate himself, as debtor-in-possession of the claim against First Interstate Bank, and Lakeway Development as the proper party plaintiffs. Both appellees filed motions for summary judgment with supporting affidavits and discovery materials. After separate hearings the district court granted summary judgment for each appellee. With respect to the claim against First Interstate Bank, the district court found there was no enforceable contract, and thus there was no breach. The district court consequently found, with respect to the claim against Scott, that, since there was no contract, there could be no interference therewith.

I.

Appellants first contend that there are genuine issues of material fact regarding the existence of a contract precluding the entry of summary judgment on that issue. In reviewing the grant of summary judgment,

we review the judgment in the same light as the district court, using the same information. A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. Material fact has been defined as one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts.

Garner v. Hickman, 709 P.2d 407, 410 (Wyo.1985) (citations omitted), quoted in Albrecht v. Zwaanshoek Holding En Financiering, B.V., 762 P.2d 1174, 1176 (Wyo.1988). A proper grant of summary judgment depends upon the dual findings that there are no genuine issues of material fact and that the prevailing party is entitled to judgment as a matter of law. Teton Plumbing and Heating, Inc. v. Board of Trustees, Laramie County School District Number One, 763 P.2d 843 (Wyo.1988); St. Paul Fire and Marine Insurance Co. v. Albany County School District No. 1, 763 P.2d 1255 (Wyo.1988).

Appellants, in...