Doud v. First Interstate Bank of Gillette

CourtUnited States State Supreme Court of Wyoming
Citation769 P.2d 927
Docket NumberNo. 88-268,88-268
PartiesBen 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).
Decision Date01 March 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 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 their complaint and amended complaint, alleged that in November 1985 Doud approached First Interstate Bank, through Ostermiller, regarding Doud's need for a $90,000 line of credit; that Doud was advised that such a draw was "not any problem"; that Doud and First Interstate Bank agreed to conclude the loan immediately after the first of the new year; and that First Interstate Bank thereafter breached such agreement by refusing to advance the agreed upon funds. In support of its motion for summary judgment, however, First Interstate Bank produced bank records and affidavits from bank personnel which indicated that no loan application had been filed with the bank with respect to the alleged agreement; that Doud had applied for and received lines of credit for the years 1983 and 1984 after submission of written applications to and approval by the board of directors; that no subsequent lines of credit had been approved; that in late 1985 or early 1986 Doud verbally inquired about a line of credit on behalf of the Lakeway Development partnership; that First Interstate Bank did not agree to loan appellants money at that time; that no loan amount, interest rate, repayment schedule, or acceptable collateral was agreed upon during this oral discussion; and that in January 1986 Ostermiller became aware of Doud's delinquency on an obligation due another bank whereupon he advised Doud that a new loan would not be approved.

First Interstate Bank, therefore, established a prima facie case for summary judgment, and the burden shifted to appellants to come forth with competent evidence of specific facts, rather than general allegations, to counter the facts presented by the movant. Roth v. First Security Bank of Rock Springs, Wyoming, 684 P.2d 93 (Wyo.1984); W.R.C.P. 56(e). Appellants, accordingly, submitted the affidavit of Doud in opposition to First Interstate Bank's motion for summary judgment. In this affidavit Doud stated that, in prior dealings with the bank, he had never submitted written loan requests or applications before the loans had been approved. He stated that in past transactions his loan requests were granted verbally and later reduced to writing at board meetings. Doud stated that the alleged loan commitment at issue was made in the same manner as these prior transactions and that he always had been able to rely upon such course of business. Doud further stated in this affidavit that the terms of the alleged loan agreement had not been specifically set out because they were known to both himself and Ostermiller pursuant to their positions with the bank and past course of dealing. Doud additionally stated that it was well known to himself and "all other directors" that directors' loans were granted at the bank's base rate and were evidenced by demand notes. Doud maintained in this affidavit that Ostermiller had committed verbally to extend a line of credit to...

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25 cases
  • Adoption of JLP, Matter of, C-88-12
    • United States
    • United States State Supreme Court of Wyoming
    • 25 Mayo 1989
    ...genuine issue of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c); Doud v. First Interstate Bank of Gillette, 769 P.2d 927 (Wyo.1989); St. Paul Fire and Marine Insurance Co. v. Albany County School District No. 1, 763 P.2d 1255 [W]e review the ju......
  • Allmaras v. Mudge, 90-275
    • United States
    • United States State Supreme Court of Wyoming
    • 8 Noviembre 1991
    ...of all favorable inferences which may fairly be drawn from the record. Baros, 780 P.2d 341; Doud v. First Interstate Bank of Gillette, 769 P.2d 927 (Wyo.1989). The character and classification of Wyoming summary judgment law is comprehensively analyzed in Cordova v. Gosar, 719 P.2d 625 (Wyo......
  • Birt v. Wells Fargo Home Mortg., Inc.
    • United States
    • United States State Supreme Court of Wyoming
    • 27 Agosto 2003
    ...Id. at 959.7 The court may not supply the missing terms to create an agreement. Id. (quoting Doud v. First Interstate Bank of Gillette, 769 P.2d 927, 928-29 [¶ 32] Our conclusion that the district court correctly found that the Birts had failed to establish the first element of promissory e......
  • Baros v. Wells, 89-37
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Octubre 1989
    ...and the prevailing party is entitled to judgment as a matter of law. Roybal v. Bell, 778 P.2d 108 (Wyo.1989); Doud v. First Interstate Bank of Gillette, 769 P.2d 927 (Wyo.1989). We review a summary judgment in the same light as the district court, using the same materials and following the ......
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1 books & journal articles
  • Limiting Lender Liability Through the Statute of Frauds
    • United States
    • Colorado Bar Association Colorado Lawyer No. 18-9, September 1989
    • Invalid date
    ...defended on grounds that the terms were not sufficiently definite to enforce. See, e.g., Doud v. First Interstate Bank of Gillette, 769 P.2d 927 (Wyo. 1989) (affirming summary judgment against plaintiff for breach of alleged oral commitment to extend line of credit); Champaign National Bank......

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