Gilmore v. Ute City Mortg. Co., Civ. A. No. 85-K-882.

• Decision Date: 05 December 1986
• Docket Number: Civ. A. No. 85-K-882.
• Citation: 660 F. Supp. 437
• Parties: John F. GILMORE, Individually, and Jerome Hotel Company, a Michigan limited partnership consisting of General Partner John F. Gilmore, Plaintiffs, v. UTE CITY MORTGAGE COMPANY, a Colorado corporation, and Imperial Savings and Loan Association, a California corporation, Defendants.
• Court: U.S. District Court — District of Colorado

660 F. Supp. 437

John F. GILMORE, Individually, and Jerome Hotel Company, a Michigan limited partnership consisting of General Partner John F. Gilmore, Plaintiffs, v. UTE CITY MORTGAGE COMPANY, a Colorado corporation, and Imperial Savings and Loan Association, a California corporation, Defendants.

Civ. A. No. 85-K-882.

United States District Court, D. Colorado.

October 30, 1986.

Order on Motion for Reconsideration December 5, 1986.

Sandra L. Spencer, White & Steele, P.C., Denver, Colo., John E. Anding, Clary, Nantz, Wood, Hoffius, Rankin & Cooper, Grand Rapids, Mich., for plaintiffs.

Thomas C. Hill, Seigle, Drabacher, Hill & Schiffer, P.C., Aspen, Colo., for Ute City Mortg. Co.

Michael J. Wadle, James W. Marks, Gorsuch, Krigis, Campbell, Walker and Grover, Denver, Colo., for defendant Imperial S & L Assn.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

I. FINDINGS OF FACT

Plaintiffs, collectively "Gilmore," sought capital for renovation of the Jerome Hotel in Aspen, Colorado. On December 6, 1983, Gilmore signed a construction financing loan commitment with the lender defendants. A permanent financing commitment was executed, on the same day, among the identical three parties. The two agreements were amended in writing on January 6, 1984. Following execution of the commitment letters, Gilmore paid defendants a $165,000 commitment fee. At a meeting held on May 25, 1984 to discuss closing on the loan, Gilmore was informed defendants would not lend him the money.

Gilmore subsequently brought this diversity-based action¹ to recover damages occasioned by defendants' alleged failure to fulfill the terms of the commitment letters. Gilmore's amended complaint states five separate counts: breach of contract, promissory estoppel, breach of implied warranty of good faith and fair dealing, negligence, and negligent misrepresentation. The two defendants are named jointly in each count. Imperial has moved for summary judgment on each of the five claims. Ute City has adopted the motion. Gilmore has requested oral argument, but I find argument unnecessary and so deny the request.

II. CONCLUSIONS OF LAW

A. Standards for Decision

Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining the existence of any genuine issue of material fact, the record is construed in the light most favorable to the party against whom the motion has been made. Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980). However, the adverse party "may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

B. Count I: Breach of Contract

Paragraph 4 of the construction financing commitment² states, in relevant part: "Lender commitment herein is conditioned upon lender's loan committee approval." Further, paragraph 10 provides for return to Gilmore of all but $5,000 of the loan commitment fee "if all conditions herein are met and Imperial's loan committee declines to make said loan." Gilmore has admitted return receipt of his $160,000. Gilmore Deposition at 65.

Defendants contend summary judgment is warranted because Gilmore "agreed, pursuant to paragraphs 4 and 10 of the commitment for construction financing that Imperial could decide not to make the loan even if plaintiffs met all the conditions stated in the commitment letter." Imperial's Motion for Summary Judgment, at 8.

The language of paragraphs 4 and 10 is unambiguous and must be enforced as written. Lowell Staats Mining Co., Inc. v. Pioneer Uravan, Inc., 596 F.Supp. 1428, 1430 (D.Colo.1984). Moreover, "the determination of the meaning and effect" of the provisions of an unambiguous document "is a question of law for the court, proper for resolution by summary judgment." Id. at 1430.

Gilmore seeks to avoid the clear impact of paragraphs 4 and 10 by pointing to page 294 of the deposition testimony transcript of Richard Geiler, Imperial's executive vice-president in charge of the loan. The relevant deposition exchange consisted of the following question and answer:

Q. In this particular instance the loan committee as a body never acted to approve or disapprove this loan; correct? A. As a body the loan committee never met to approve or disapprove this loan, that is correct. And that is not unusual with a loan application coming into a bank or a savings and loan.

Geiler's response raises a fact question concerning compliance with paragraph 10. Specifically, the loan committee may never have had the opportunity to review the loan. Defendants' motion for summary judgment is therefore denied on the breach of contract claim.

C. Count II: Promissory Estoppel

Colorado has adopted the doctrine of promissory estoppel as stated in section 90 of the Restatement (Second) of Contracts. Vigoda v. Denver Urban Renewal Authority, 646 P.2d 900, 905 (Colo.1982). This doctrine

should be applied to prevent injustice where there has not been mutual agreement by the parties on all essential terms of a contract, but a promise was made which the promisor should reasonably have expected would induce action or forbearance, and the promise in fact induced such action or forbearance.

Id. at 905 (emphasis added).

Promissory estoppel is therefore applicable only in the absence of an otherwise enforceable contract. See Calamari & Perillo, The Law of Contracts, § 6-7 (2d ed. West 1977) ("before looking to the doctrine of promissory estoppel the courts ordinarily look to see if conventional consideration is present").

In the case at bar, the parties have participated in a fully "bargained for" exchange of conventional consideration. The first sentence of the final paragraph of the construction financing commitment letter explicitly makes the letter "the full and complete agreement between the borrower and lender." Gilmore does not allege fraud, duress, or other illegality which would render the contract void or voidable. Therefore the commitment letter is a valid, mutually enforceable agreement. The rights and duties of the parties must be determined by reference to specific contractual terms. The alternative remedy of promissory estoppel is never reached where, as here, "there has been mutual agreement by the parties on all essential terms of a contract." Vigoda, at 905. Defendants' motion for summary judgment is therefore granted on the promissory estoppel claim.

D. Count III: Breach of Implied Warranty of Good Faith and Fair Dealing

Gilmore claims defendants' refusal to perform in accordance with the terms of the loan commitments constitutes a breach of the implied covenant of fair dealing and good faith. Gilmore's argument posits that paragraph 10 cannot be exercised by defendants in a manner inconsistent with Gilmore's expectations. Brief in Opposition to Imperial's Motion for Summary Judgment, at 18. Gilmore analogizes paragraphs 4 and 10 to a satisfaction clause. He finds a violation by defendants because "the reasons for termination of the commitment agreement were other than Imperial's dissatisfaction." Id. at 19.

I have recently examined this same issue in the context of a breach of contract action governed by the Uniform Commercial Code. Power Motive Corporation v. Mannesmann Demag Corporation, Action No. 85-K-13 (D.Colo. October 21, 1986) Available on WESTLAW, DCT-CS database. I cannot rewrite an unambiguous termination clause so as to impose an extrinsic condition on its exercise. Id. at 4. "The implied obligation cannot override express contractual terms, at least not in the circumstances present in this case," id., because like Power Motive, Gilmore executed the commitment letters with his eyes open.

As noted above, Gilmore has made no allegations of fraud, duress or other illegality "which would nullify the termination provision." Id. at 5. Gilmore was aware of defendants' contractual right to decline to fund the loan and to return all but $5,000 of the commitment fee. Having accepted these risks when he signed the agreement, Gilmore cannot use the good faith argument to extricate himself from an agreement which hindsight has shown to be financially undesirable. Id. at 5. Defendants' motion for summary judgment is therefore granted for Count III.

E. Count IV: Negligence

In this count, Gilmore alleges defendants' negligent processing of the loan commitments. Gilmore contends his loan application was not handled in a commercially reasonable and diligent manner.

This count is a mere restatement, in tort form, of the first count's claim for breach of contract. I have already found a genuine issue of material fact to exist regarding review of the loan by the loan committee. Colorado law does not recognize an independent tort action for breach of such contractual duties. Strey v. Hunt International Resources Corporation, 749 F.2d 1437, 1441 (10th Cir.1984), cert. denied, ___ U.S. ___, 107 S.Ct. 237, 93 L.Ed.2d 162 (1986); Bloomfield Financial Corporation v. National Home Life Assurance Company, 734 F.2d 1408, 1414-1415 (10th Cir.1984). The motion for summary judgment is granted for Count IV.

F. Count V: Negligent Misrepresentation

In this count, Gilmore bases its claim for negligent misrepresentation on Geiler's assurances "that there would be no difficulty in obtaining approval of the loan from Imperial's loan committee." Amended Complaint, ¶ 51. See also Gilmore affidavit of July 7, 1986, ¶ 16, and Gilmore affidavit of October 20, 1986, which describe alleged misrepresentations by Michael Logsdon, a Ute City employee.

Colorado has adopted § 552 of the Re-statement (Second) of Torts on negligent misrepresentation. First National Bank...