Werner v. Norwest Bank South Dakota, N.A.

• Decision Date: 13 January 1993
• Docket Number: No. 17954,17954
• Citation: 499 N.W.2d 138
• Parties: Herb WERNER, d/b/a The Dakota American Company, Plaintiff and Appellant, v. NORWEST BANK SOUTH DAKOTA, N.A., Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 138

499 N.W.2d 138

Herb WERNER, d/b/a The Dakota American Company, Plaintiff and Appellant, v. NORWEST BANK SOUTH DAKOTA, N.A., Defendant and Appellee.

No. 17954.

Supreme Court of South Dakota.

Considered on Briefs Jan. 13, 1993.

Decided April 21, 1993.

Michael L. Buffington, Rapid City, for plaintiff and appellant.

Michael M. Hickey of Bangs, McCullen, Butler Foye and Simmons, Rapid City, for defendant and appellee.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

This matter arises from a grant of summary judgment to Norwest Bank South Dakota, N.A. (Norwest) on March 16, 1992, concerning appellant Herb Werner's (Werner) claim that appellee Norwest had breached an oral agreement to provide a commercial loan. Upon the trial court's finding that there was no genuine issue of material fact, Werner filed Notice of Appeal on May 29, 1992 raising the following issues:

I. Did the trial court err in granting summary judgment in regard to the existence and terms of an oral agreement to loan money?

II. Did the trial court err in granting summary judgment concerning partial performance and promissory estoppel?

We hold that there was no error and affirm the trial court in all respects.

FACTS

In 1979, Werner moved to Hot Springs, South Dakota to establish Dakota American, a manufacturer of art reproduction, books, and picture frames. Soon thereafter, he opened a checking account with Norwest and purchased five acres of land in the Hot Springs Industrial Park. Norwest loaned Werner $15,000 to construct a pre-fabricated building on the land, as well as several other loans of lesser amounts during the years 1979 through 1982. However, he failed to pay an $11,000 note due March 10, 1981, and defaulted on another note due in May 1982.

Prior to the May default, Zondervan Book Stores of Grand Rapids, Michigan placed two purchase orders for picture frames with Werner. In June of 1982, after completing the two orders, Werner met with Richard Brady (Brady), a Norwest loan officer, about financing an order of 10,000 to 20,000 picture frames for Zondervan. (Werner refers to this order as PO3.) Werner estimated that the materials would cost somewhere between $60,000 and $80,000. Although Brady indicated that Norwest could handle loans of that amount, at no time did they discuss a specific amount, interest rate, term, or collateral.

On June 15, 1982, Norwest obtained a security interest in Werner's accounts receivable and loaned Werner $6,000 to pay off old bills and raw materials. Later that same month, Werner wrote a check to purchase equipment from Wave Manufacturing. Although the check bounced, Norwest covered the overdraft.

In October, Norwest refused to loan $75,000 for the purchase of materials and supplies for PO3. After being denied loans by other banks, Werner obtained two $25,000 advances from Zondervan. In the meantime, Norwest loaned Werner lesser amounts, totaling over $19,000, to cover various expenses. In spite of these finances, Werner failed to complete the order because he ran out of money.

As a result, Werner filed this action claiming breach of an oral promise to loan money. However, the trial court granted summary judgment to Norwest.

DECISION

STANDARD OF REVIEW

In reviewing a grant of summary judgment, we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to any judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper. Waddell v. Dewey County Bank, 471 N.W.2d 591, 593 (S.D.1991); Garrett v. BankWest, Inc., 459 N.W.2d 833, 836-37 (S.D.1990).

When resisting a motion for summary judgment, the nonmoving party must be diligent. Mere allegations and denials which do not set forth specific facts will not prevent issuance of a judgment. Breen v. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221, 223 (S.D.1988). However, a party may not claim a version of the facts more favorable than the version given in the party's own testimony. Lalley v. Safway Steel Scaffolds, Inc., 364 N.W.2d 139 (S.D.1985); Swee v. Myrl & Roy's Paving, Inc., 283 N.W.2d 570 (S.D.1979).

I. CONTRACTS REQUIRE SPECIFIC TERMS

Werner asserts that his June 1982 conversation with Brady culminated in an oral loan agreement. Although Werner admits that not all terms were specific, he contends that those unspecified terms could be determined by viewing previous dealings between the parties. Norwest claims that this lack of material terms proves that no valid contract exists under the law.

The existence of a valid express contract is a question of law to be determined by a court, not a jury. Mid-America Mktg. Corp. v. Dakota Industries, 289 N.W.2d 797 (S.D.1980). An express contract results when the parties mutually express an intent to be bound by specific terms and conditions. Van Zee v. Witzke, 445 N.W.2d 34 (S.D.1989). Werner contends that these cites are inapplicable because the facts concerning the specific terms and conditions were not disputed or conflicting. He argues, on one hand, that these authorities are inapplicable because no express contract is involved. On the other hand, he claims the terms and conditions exist through discussions with Richard Brady and course of dealing, yet never argues for an implied contract. Therefore, the possibility of an implied contract must be deemed waived. SDCL 15-26A-60(6); Corbly v. Matheson, 335 N.W.2d 347 (S.D.1983).

Instead, Werner cites Belknap v. Belknap, 20 S.D. 482, 107 N.W. 692 (1906), which holds that the meaning of conflicting evidence in an oral contract is properly left to the jury. The major fault with Belknap (as well as most authorities cited by Werner) is that it applies where a contract is said to already exist. Such is not the case here.

When requesting summary judgment, Norwest claimed that too many essential terms were not specified, such as the amount of the loan, interest rate, term, security, time and method of repayment, closing date, and the preparation and execution of written documents. Where there is no showing that the terms of an alleged oral agreement were ever settled or agreed upon, the trial court is proper in granting summary judgment. Deadwood Lodge No. 508 v. Albert, 319 N.W.2d 823, 826 (S.D.1982), citing Engle v. Heier, 84 S.D. 535, 173 N.W.2d 454 (1970).

As evident in his own brief, Werner fails to specify terms that indicate the existence of a contract. He cannot specify the amount of the loan, rather he gives a ballpark figure of "between $70,000 and 80,000--$80,000 being the max." Yet, he has also testified that the amount needed could be as little as $60,000. He claims the interest rate could be inferred from his previous loan. For a security agreement on the alleged $70,000 to $80,000 loan, Werner points to a June 15, 1982 document. However, the June 15 note indicates a $6,000 loan. No evidence supports the security note's relation to PO3. In the past, whenever Werner received a loan from Norwest, notes were signed indicating a specified amount, due date, interest rate, method of payment and security. By failing to establish the specific terms, Werner purports an agreement that lacks the necessary elements required to create a binding contract. Nothing was reduced to a writing. According to Werner, the specifics are to be left to the jury to determine.

We disagree. Nowhere does Werner profess the exact terms of the alleged contract. Both Werner and Norwest agree that several terms were not specified. Thus, there is no factual dispute. If the complaining party cannot allege what the facts are, how can he expect the jury to decide them. An agreement must be sufficiently definite to enable a court to give it an exact meaning. Deadwood Lodge at 826. Essentially, Werner wants a jury to create a contract from his estimates of the terms. No enforceable obligation can be established from this lack of specific terms.

Other jurisdictions have granted summary judgments under the same circumstances. An oral contract is not established where essential terms are left open to future negotiations. Transamerica Equip. Leasing Corp. v. Union Bank, 426 F.2d 273 (9th Cir.1970). Where there was no understanding as to the exact amount of money, interest rate, time and method of repayment, and no exchange of documents, no enforceable contract can be said to exist. Champaign Nat'l. Bank v. Landers Seed Co., Inc., 165 Ill.App.3d 1090, 116 Ill.Dec. 742, 519 N.E.2d 957 (1988), cert. denied, 489 U.S. 1019, 109 S.Ct. 1138, 103 L.Ed.2d 199 (1989); Balter v. Pan American Bank, 383 So.2d 256 (Fla.App.1980); Marine Midland Bank v. Herriott, 10 Mass.App. 743, 412 N.E.2d 908 (1980); Willowood Condominium Ass'n, Inc. v. HNC Realty Co., 531 F.2d 1249 (5th Cir.1976).

Werner filed suit to show the existence of an oral loan agreement, a contract, with Norwest. Yet Werner's own briefs and testimony show the lack of specific terms. Finding that Werner had not met his burden, the lower court granted summary judgment to Norwest holding that no material facts are in dispute that would prove the existence of a contract. We concur.

II. THERE WAS NO JUSTIFIABLE RELIANCE.

Due to the lack of contractual certainty as previously indicated, Werner could not have reasonably relied on Norwest to grant him a loan in excess of $60,000. According to Werner, when he asked if Norwest could handle a $70,000 to $80,000 loan, Brady responded, "No problem." Even so, this affirmation does not constitute mutual assent to an oral contract. The agreement upon...