KAUGER, Judge:
Three issues are presented: 1) whether, on appeal, a party must contest the procedural aspects of a motion to dismiss with prejudice for failure to state a claim upon which relief may be granted to preserve substantive issues for review; 2) whether the requirement of 15 O.S.1991 § 140
that credit agreements in excess of $15,000.00 be in writing will bar a cause of action for fraud; and 3) whether the alleged facts may be sufficient to support a finding of a violation of the Bank Tying Act (Tying Act), 12 U.S.C. § 1971 (1989) et seq.
We find that: 1) an order dismissing a cause ■with prejudice entered pursuant to 12 O.S. 1991 § 2012(G)
constitutes a final appeal-able order from which the merits of the substantive claim for relief may be reviewed; 2) the requirement of 15 O.S.1991 § 140 that credit agreements in excess of $15,000.00 be in writing will not bar a cause of action for fraud; and 3) allegations that a violation of 12 U.S.C. § 1972 (1989)
resulted in damage to the borrower coupled with a claim for relief are sufficient to satisfy the pleading requirements of 12 O.S.1991 § 2008(A).
ALLEGED FACTS
This action arises from an agreement entered in 1990 to construct a truck stop in Oklahoma City. After managing a successful truck stop and restaurant (original location) for twenty-four years, the appellant, Jerry D. Brown (Brown/borrower), entered an agreement with Terry and Gary Spencer (Spenc-ers) to create 1-35 Truck Stop, Inc. The Spencers contacted Brown before August, 1990; and they advised him that the appellee, Founders Bank
&
Trust Company (Founders/bank/lender), was interested in developing a truck stop at N.E. 120th and 1-35 (new location). Although Founders dictated the location of the proposed truck stop, the bank did not disclose that it owned the property targeted for development.
The Spencers and Brown contracted for the construction, funding and management for the proposed truck stop; and a loan agreement was finalized with Founders. As a condition of the loan, Founders required that Brown assign all the inventory, the accounts receivable and the assets of the original location to the new business. Additionally, the bank demanded that Brown guarantee two promissory notes in the amount of $1,784,000.00. Founders also required that the loan be assigned or guaranteed by the Small Business Administration. As a further condition to the loan, Brown was required to keep his original truck stop in operation during construction of the N.E. 120th location.
A number of problems arose during construction. Brown alleges that Founders induced him to continue with the construction project through oral misrepresentations. He contends that the bank promised that: 1) it would provide additional financing once the small business loan was in place; 2) it would not require strict adherence to the repayment schedule during the first year; and 3) it would assist in funding the operation of Brown’s original truck stop and with the new location. Brown insists that the bank’s representations were not fulfilled. He asserts that Founders did not advance funds guaranteed for the construction of a restaurant at
the new facility and that inadequate working capítol for both locations was provided. He also contends that Founders failed to pay creditors pursuant to a line of credit. Brown maintains that Founders insisted on the continued operation of his original truck stop and that he would not have incurred over $700,000.00 in debt in association with the operation absent Founder’s promises. When the new location was forced to close for lack of funds and operating capítol, Brown lost his entire interest. However, because of the guaranteed small business loan, Founders’ was not adversely affected by the closing.
Founder’s filed a motion to dismiss Brown’s original petition for failure to state a claim upon which relief can be granted pursuant to 12 O.S.1991 § 2012(G).
The motion to dismiss was sustained on June 9,1992, and Brown was given until June 26,1992, to file a second amended petition. An extension was granted
ex parte;
and Brown was allowed until July 28 to file. He did not do so until July 29, 1992.
The trial court sustained Founders’ § 2012(G) motion to dismiss on August 28, 1992; and the journal entry of judgment was filed on September 18, 1992. The judgment indicates that the cause was dismissed for its failure to state a claim upon which relief may be granted rather than because the second amended petition was filed one day out of time.
The Court of Appeals affirmed. It held that Brown waived any opportunity to address the substantive issues of his appeal by not addressing the issue of the propriety of the dismissal either in his petition in error or in his brief. We granted certiorari on March 4, 1994.
I.
AN ORDER DISMISSING A CAUSE WITH PREJUDICE ENTERED PURSUANT TO 12 O.S.1991 § 2012(G) CONSTITUTES A FINAL APPEAL-ABLE ORDER FROM WHICH THE MERITS OF THE SUBSTANTIVE CLAIM FOR RELIEF MAY BE REVIEWED.
Brown argues that his failure to address the procedural matters associated with the trial court’s dismissal with prejudice is not prejudicial to a consideration of the merits of his cause. Instead, he insists that the dismissal of his cause for failure to state a claim upon which relief may be granted with prejudice pursuant to 12 O.S.1991 § 2012(G)
provides the opportunity for the appeal of a final judgment. Founders asserts that Brown’s failure to challenge the dismissal limits authority on appeal to consider the substantive issues of the instant cause. We disagree. The dismissal merely constitutes a final appealable order from which the merits of the substantive claim for relief may be reviewed.
The issue presented is what effect the dismissal had on the consideration of the substantive issues presented. When the trial court granted Founders’ initial motion to dismiss with leave to amend, Brown could not have appealed on the merits of his claim. Such an order is interlocutory; it is not a final judgment. The order may ripen into a final judgment upon the motion of an adverse party if the pleading is not amended within the time set by the trial court.
A motion to
dismiss for failure to state a claim upon which relief can be granted may not be sustained unless it appears without doubt that the plaintiff can prove no set of facts in support of the claim entitling relief.
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KAUGER, Judge:
Three issues are presented: 1) whether, on appeal, a party must contest the procedural aspects of a motion to dismiss with prejudice for failure to state a claim upon which relief may be granted to preserve substantive issues for review; 2) whether the requirement of 15 O.S.1991 § 140
that credit agreements in excess of $15,000.00 be in writing will bar a cause of action for fraud; and 3) whether the alleged facts may be sufficient to support a finding of a violation of the Bank Tying Act (Tying Act), 12 U.S.C. § 1971 (1989) et seq.
We find that: 1) an order dismissing a cause ■with prejudice entered pursuant to 12 O.S. 1991 § 2012(G)
constitutes a final appeal-able order from which the merits of the substantive claim for relief may be reviewed; 2) the requirement of 15 O.S.1991 § 140 that credit agreements in excess of $15,000.00 be in writing will not bar a cause of action for fraud; and 3) allegations that a violation of 12 U.S.C. § 1972 (1989)
resulted in damage to the borrower coupled with a claim for relief are sufficient to satisfy the pleading requirements of 12 O.S.1991 § 2008(A).
ALLEGED FACTS
This action arises from an agreement entered in 1990 to construct a truck stop in Oklahoma City. After managing a successful truck stop and restaurant (original location) for twenty-four years, the appellant, Jerry D. Brown (Brown/borrower), entered an agreement with Terry and Gary Spencer (Spenc-ers) to create 1-35 Truck Stop, Inc. The Spencers contacted Brown before August, 1990; and they advised him that the appellee, Founders Bank
&
Trust Company (Founders/bank/lender), was interested in developing a truck stop at N.E. 120th and 1-35 (new location). Although Founders dictated the location of the proposed truck stop, the bank did not disclose that it owned the property targeted for development.
The Spencers and Brown contracted for the construction, funding and management for the proposed truck stop; and a loan agreement was finalized with Founders. As a condition of the loan, Founders required that Brown assign all the inventory, the accounts receivable and the assets of the original location to the new business. Additionally, the bank demanded that Brown guarantee two promissory notes in the amount of $1,784,000.00. Founders also required that the loan be assigned or guaranteed by the Small Business Administration. As a further condition to the loan, Brown was required to keep his original truck stop in operation during construction of the N.E. 120th location.
A number of problems arose during construction. Brown alleges that Founders induced him to continue with the construction project through oral misrepresentations. He contends that the bank promised that: 1) it would provide additional financing once the small business loan was in place; 2) it would not require strict adherence to the repayment schedule during the first year; and 3) it would assist in funding the operation of Brown’s original truck stop and with the new location. Brown insists that the bank’s representations were not fulfilled. He asserts that Founders did not advance funds guaranteed for the construction of a restaurant at
the new facility and that inadequate working capítol for both locations was provided. He also contends that Founders failed to pay creditors pursuant to a line of credit. Brown maintains that Founders insisted on the continued operation of his original truck stop and that he would not have incurred over $700,000.00 in debt in association with the operation absent Founder’s promises. When the new location was forced to close for lack of funds and operating capítol, Brown lost his entire interest. However, because of the guaranteed small business loan, Founders’ was not adversely affected by the closing.
Founder’s filed a motion to dismiss Brown’s original petition for failure to state a claim upon which relief can be granted pursuant to 12 O.S.1991 § 2012(G).
The motion to dismiss was sustained on June 9,1992, and Brown was given until June 26,1992, to file a second amended petition. An extension was granted
ex parte;
and Brown was allowed until July 28 to file. He did not do so until July 29, 1992.
The trial court sustained Founders’ § 2012(G) motion to dismiss on August 28, 1992; and the journal entry of judgment was filed on September 18, 1992. The judgment indicates that the cause was dismissed for its failure to state a claim upon which relief may be granted rather than because the second amended petition was filed one day out of time.
The Court of Appeals affirmed. It held that Brown waived any opportunity to address the substantive issues of his appeal by not addressing the issue of the propriety of the dismissal either in his petition in error or in his brief. We granted certiorari on March 4, 1994.
I.
AN ORDER DISMISSING A CAUSE WITH PREJUDICE ENTERED PURSUANT TO 12 O.S.1991 § 2012(G) CONSTITUTES A FINAL APPEAL-ABLE ORDER FROM WHICH THE MERITS OF THE SUBSTANTIVE CLAIM FOR RELIEF MAY BE REVIEWED.
Brown argues that his failure to address the procedural matters associated with the trial court’s dismissal with prejudice is not prejudicial to a consideration of the merits of his cause. Instead, he insists that the dismissal of his cause for failure to state a claim upon which relief may be granted with prejudice pursuant to 12 O.S.1991 § 2012(G)
provides the opportunity for the appeal of a final judgment. Founders asserts that Brown’s failure to challenge the dismissal limits authority on appeal to consider the substantive issues of the instant cause. We disagree. The dismissal merely constitutes a final appealable order from which the merits of the substantive claim for relief may be reviewed.
The issue presented is what effect the dismissal had on the consideration of the substantive issues presented. When the trial court granted Founders’ initial motion to dismiss with leave to amend, Brown could not have appealed on the merits of his claim. Such an order is interlocutory; it is not a final judgment. The order may ripen into a final judgment upon the motion of an adverse party if the pleading is not amended within the time set by the trial court.
A motion to
dismiss for failure to state a claim upon which relief can be granted may not be sustained unless it appears without doubt that the plaintiff can prove no set of facts in support of the claim entitling relief.
Therefore, if a motion to dismiss is granted for failure to state a cognizable claim after opportunity for amendment, the precise issue presented on appeal is whether the facts pled may support a claim for relief.
Rules of pleading both at the trial and the appellate levels have been liberalized to allow courts to focus attention on the substantive merits of the dispute rather than upon procedural niceties.
Gunn v. Consolidated Rural Water & Sewer Dist. No. 1,
839 P.2d 1345,1347 (Okla.1992) is instructive. In
Gunn,
the plaintiff-appellant elected to stand on his petition which was dismissed by the trial court. On appeal, we considered the merits of the cause. Where, as in
Gunn
and here, the issue is the substance of the claim and not the trial court’s authority to enter the order of dismissal, it is unnecessary to argue on appeal the procedural aspects of the dismissal. Dismissal of the action merely results in a final judgment ripe for determination of the substantive issues on appeal.
An order dismissing a cause with prejudice entered pursuant to 12 O.S.1991 § 2012(G)
constitutes a final appealable order from which the merits of the substantive claim for relief may be reviewed.
II.
THE REQUIREMENT OF 15 O.S.1991 § 140 THAT CREDIT AGREEMENTS IN EXCESS OF $15,000 BE IN WRITING WILL NOT BAR A CAUSE OF ACTION FOR FRAUD.
Brown acknowledges that the agreement with Founders is a credit agreement within the meaning of 15 O.S.1991 § 140
and that, under the statute, agreements in excess of $15,000.00 must be in writing to be enforceable. However, he insists that the necessity of a writing may be avoided in the instance of a claim for fraud. Founders argues that no fraud was committed; and it asserts, in any case, that the lack of a writing outlining the terms and conditions of the agreement bars any action on the borrower’s part.
Our research reveals no case in which courts have allowed a borrower to avoid the statute of frauds for credit agreements by alleging fraud.
However, a federal court
applying Minnesota law has recognized that the doctrines of fraud and equitable estoppel may be invoked, under proper circumstances, to enforce or avoid a credit agreement otherwise required to be in writing. In
Pako Corp. v. Citytrust,
109 B.R. 368, 377-79 (D.Minn.1989), the borrower sued the lender on the basis of alleged oral promises in association with a credit agreement. Pako contended that the borrower agreed to assignment and transfer of rights under the loan agreement to a third party, to keep a $100,-000 balance outstanding under a note until some time in the future, and to reinstatement of the note after cancellation. Citytrust did not honor these alleged promises. The federal court refused to apply the doctrines of equitable estoppel or fraud in circumstances where there were no allegations of unfair dealing or deception.
The
Pako
case does not foreclose the possibility of application of equitable doctrines to avoid an agreement required to be in writing by the credit agreement statute of frauds. Instead, it implies that certain facts may support an action based on fraud — where there are allegations of fraudulent or material misrepresentations.
The allegations of wrongdoing missing in
Pako
are present here. Brown contends that Founders failed to reveal its ownership of the property identified as the location of the second truck stop. His first amended petition also contains allegations that the bank made false, fraudulent and material misrepresentations during construction and before closing of the business. These purported promises concerned guarantees of reimbursement after the small business loan was in place, that additional operating capítol would be supplied and that strict compliance with the repayment schedule would not be required. Brown insists that the bank failed to honor promises to his suppliers, to provide a line of credit, and to approve financing to construct a restaurant at the new location. He contends that he relied and acted upon these misrepresentations losing the interest in the new location when Founders foreclosed and incurring a debt of $700,000.00 in maintaining and operating the original location.
Statutes similar to 15 O.S.1991 § 140 have been enacted to protect lenders from liability for actions or statements a lender might make in the context of counseling or negotiating with a borrower which the borrower construes as an agreement. They are intended to discourage lender liability litigation and to promote certainty into credit agreements.
The statutes are intended as
a reform measure
to regulate the number and variety of causes arising as lender liability actions.
Despite the intended protection afforded lenders under these statutes, their goal should be to protect the lender against claims raised by sophisticated borrowers not unsophisticated individuals who either because of lack of representation or bargaining power fail to be in a position to insist that the full agreements be reduced to writing.
Statutes of frauds are enacted to prevent frauds not to perpetrate them.
Such statutes are not intended to be used as shield or breastwork for a wrongdoer. Remaining silent when the duty to speak exists may constitute a wrongful act.
The issue of whether a claim of fraud may be used to avoid the writing requirement of 15 O.S.1991 § 140 for a credit agreement is one of first impression in Oklahoma. One jurisdiction has acknowledged that borrowers are not precluded from using equitable defenses in an action by the lender to enforce a credit agreement required to be in writing. However, the court refused to allow the same allegations to be used in the maintenance of an action by the borrower.
The Task Force drafting the model statute opted not to preclude allegations of fraud, even if the fraud alleged is that the party against whom the action is brought did not intend to perform the alleged promise, undertaking, accepted offer, commitment, or agreement. The Task Force believed it unnecessary to prohibit allegations of fraud because of the standards necessary to prove its existence
— material misrepresentation knowingly or recklessly made with intent that it be relied upon with the result that the party relying on the false statements suffers damages.
Generally, a statute of frauds does not abolish the common law remedy for fraud merely because the fraudulent misrepresentation is not in writing.
The common law is intact in Oklahoma to the extent that it has not been modified by the constitution, statutes, judicial decisions and the conditions and wants of the people.
It may not be abrogated by implication; rather, its alteration must be clearly and plainly expressed.
In enacting its credit agreement statute of frauds, the Colorado Legislature specifically included equitable defenses within the ambit of the statute.
Our Legislature could have
similarly expressed itself. It is this Court’s duty to give effect to legislative acts, not to amend, repeal or circumvent them.
In the absence of a clear legislative statement that fraud will not take a credit agreement out of the statute of frauds found in 15 O.S.1991 § 140, we find the reasoning of the
Pako
court and the Task Force persuasive. Given the burden necessary to establish its existence, the intent of the Legislature to limit lender liability suits will not be defeated by allowing fraud to be used to avoid the writing required by 15 O.S.1991 § 140. Therefore, we find that the requirement of 15 O.S.1991 § 140
that credit agreements in excess of $15,000.00 be in writing will not bar a cause of action for fraud.
III.
ALLEGATIONS THAT A VIOLATION OF 12 U.S.C. § 1972 (1989) RESULTED IN DAMAGE TO THE BORROWER COUPLED WITH A CLAIM FOR RELIEF ARE SUFFICIENT TO SATISFY THE PLEADING REQUIREMENTS OF 12 O.S.1991 § 2008(A).
Brown contends that his allegations
that Founders violated the Bank Tying Act (Tying Act), 12 U.S.C. § 1971 (1989) et seq. and that he was damaged by the violation coupled with a prayer for relief is sufficient to withstand a motion to dismiss for failure to state a claim upon which relief may be granted. Founders insists that the borrower’s failure to allege any anti-competitive practices is fatal to the charge.
We disagree.
Section 2008(A) of the Oklahoma Pleading Code (Pleading Code) requires that a party set forth a short and plain statement of the claim consisting of simple, concise, and direct averments showing that the pleader is entitled to relief.
Under 12 O.S.1991 § 2012(B)(6),
a dismissal for failure to state
a claim upon which relief may be granted is appropriate only if it is clear beyond a doubt that no factual situation exists entitling the claimant to relief.
Section 1972 of the Tying Act
prohibits a bank from conditioning an extension of credit upon the customer obtaining additional property from the bank. Brown’s petition contains allegations that Founders required him to purchase real estate it owned as a condition of the loan to construct the new location, that he was damaged thereby, and that he is entitled to relief.
These allegations satisfy the notice pleading requirements of 12 O.S.1991 § 2008(A).
CONCLUSION
The precise issue presented when a claim is dismissed pursuant to 12 O.S.1991 § 2012(G)
is whether the facts pled may support a claim for relief. Therefore, the order dismissing the cause with prejudice entered pursuant to 12 O.S.1991 § 2012(G) constitutes a final appealable order from which the merits of the substantive claim for relief may be. reviewed.
Statutes of frauds are enacted to prevent frauds not to perpetrate them.
These statutes are not intended to be used as shield or breastwork for a wrongdoer. Remaining silent when the duty to speak exists may constitute a wrongful act.
A statute of fraud does not abolish the common law remedy for fraud merely because the fraudulent misrepresentation is not in writing.
The Legislature has not chosen to specifically include allegations of fraud within the credit agreement statute of frauds. We may not do so by judicial fiat. Therefore, the requirement of 15 O.S.1991 § 140
that credit agreements in excess of $15,000.00 be in writing will not bar a cause of action for fraud.
Title 12 O.S.1991 § 2008(A) requires a short and plain statement of the claim showing that the pleader is entitled to relief.
Allegations that a violation of 12 U.S.C. § 1972 (1989) resulted in damage to the borrower coupled with a claim for relief are sufficient to satisfy these pleading requirements.
The cause is remanded for further action consistent with this opinion. We express no opinion on the merits of the cause; rather, we find that the petition is sufficient to withstand a motion to dismiss for failure to state a claim upon which relief may be granted.
CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; CAUSE REMANDED.
HODGES, C.J., LAVENDER, V.C.J., and HARGRAVE, WILSON, KAUGER and WATT, JJ. concur.
SIMMS, J. concurs in result.
OPALA, J. concurs in result in Part I; concurs in Part II; concurs in result in Part III.
SUMMERS, J. not participating.