Dugan v. First Nat'l Bank in Wichita

606 P.2d 1009, 227 Kan. 201, 1980 Kan. LEXIS 222

• Court: Supreme Court of Kansas
• Decided: February 7, 1980
• Docket: 49,827
• Status: Published

Opinions

The opinion of the court was delivered by

Miller, J.:

The plaintiff, Mrs. Nancy Dugan, appeals from the order of the trial court granting summary judgment to all defendants. Mrs. Dugan brought this action for damages and for reformation or cancellation of two mortgages and two subordination agreements against defendants First National Bank in Wichita, K & B Development Corporation, and Harry D. Bledsoe. The Bank impleaded defendants Emmet A. Blaes, William D. Shirk, Claire E. Shirk, and Dolores J. Engels, as interested parties.

The primary issue is the propriety of the entry of summary judgment. Other of the numerous issues raised will be stated and discussed later in this opinion. The facts are somewhat lengthy and complex, but a statement of the background facts is necessary to an understanding of the issues presented.

Mrs. Dugan is a widow in her seventies. She has some infirmities and suffers from Parkinson’s disease and coronary disease. She owns a large tract of farm land located in the west part of Wichita, adjoining or near the municipal airport. Parts of the land, and particularly that along Kellogg, have been extensively developed through various arrangements, often including long-term leases of parcels to commercial developers. Most of the development occurred prior to the death of her husband in 1971.

Mrs. Dugan, as lessor, entered into an 87-year lease with defendant Bledsoe, as lessee, in 1972. The lease covers slightly over one acre of land. The provisions of an earlier recorded lease are included by reference. Of interest here is the following special provision:

“a) If the Lessee in financing new construction on the leased premises encounters a requirement requiring Lessors to subordinate in favor of a first mortgage, Lessors agree to cooperate with Lessee in said financial arrangements and subordinate their leasehold interest thereto.”

Bledsoe, in 1973, assigned his interest in the 1972 lease to K & B Development Corporation, of which Bledsoe was the principal (51%) stockholder. K & B then secured a construction loan of $275,000 and executed a note and mortgage to the Bank. Mrs. Dugan, on August 8, 1973, executed a subordination agreement, whereby she subordinated her fee simple interest in the leased land to the lien of the Bank’s mortgage. The subordination agreement executed by Mrs. Dugan and also by corporate officers on behalf of K & B and the Bank contained the following provision:

“WHEREAS, in order to induce Lessors to execute this Subordination Agreement, Lessee does hereby covenant, warrant and represent that the actual costs of new construction of improvements on the leased premises described in Exhibit “A” shall exceed the sum of $275,000.00.”

This document was prepared by an attorney for the Bank.

Mrs. Dugan and her late husband were customers of the First National Bank in Wichita from the 1930’s up until the time of the events giving rise to this litigation, and during the same period they were clients of the Wichita law firm of Jochems, Sargent & Blaes. In later years Mr. Robert Braden of that firm handled their affairs. Mrs. Dugan sought Mr. Braden’s advice before signing the $275,000 subordination agreement; thereafter she signed it, the mortgage and subordination agreement were placed of record, and the loan was disbursed to K & B.

The leased land included a building which was operated as a restaurant by Mr. Wong. Mrs. Dugan was aware that K & B was buying his business, including furniture and fixtures, at a cost of $40,000. K & B utilized the old building or at least portions of it, remodeled extensively, built an extensive new addition, installed all new furniture and fixtures, and opened the new club and restaurant for business in late 1973. At that time K & B had outstanding debts in addition to the bank loan, and when the financial picture did not improve in 1974, K & B sought unsuccessfully to increase the bank loan. Mr. Bledsoe consulted his attorney, Mr. Blaes, and eventually Blaes and the other impleaded defendants agreed to loan K & B the sum of $100,000, conditioned upon Mrs. Dugan again subordinating her fee interest.

K & B agreed to execute a mortgage to the First National Bank in Wichita. The Bank, as escrow agent and the named mortgagee, was to handle the loan. Mr. Blaes and his associates, William S. Shirk, Claire E. Shirk and Dolores J. Engels, were to advance the money; the Bank was to receive all loan payments and remit to the actual lenders in their appropriate proportionate shares. Documents to accomplish these ends were prepared and executed.

Meanwhile, Mr. Blaes prepared a subordination agreement for Mrs. Dugan’s signature, and this was presented to her at her home one evening in April, 1975, by Mr. Bledsoe. Mrs. Dugan was not informed as to the actual parties involved in the loan or as to the intended use of the money. According to her deposition testimony, Mr. Bledsoe told her that it had taken more for construction and equipment than had been anticipated; and he told her or led her to believe that he would take the document to Mr. Braden so that he might look it over for her. With that understanding, she signed the second subordination agreement. Bledsoe did not present the document to Braden for review. Instead, the second subordination agreement and the new mortgage were placed of record, and the loan proceeds were delivered to K & B.

When the original subordination agreement was executed in 1973, construction was nearing completion. Bledsoe informed Mrs. Dugan that the loan proceeds of $275,000 would be used for building construction costs and equipment. The loan proceeds were disbursed by the Bank under the following authorizations:

“Working Capital ............................ $ 10,000.00

Architect .................................. $ 5,946.28

Equipment and Fixtures ...................... $ 82,131.82

Contractor................................. $176,171.90

Engineering................................ $ 750.00”

Mrs. Dugan complains of the “working capital” disbursement. In 1976, Mrs. Dugan discovered that Bledsoe had not taken the second subordination agreement to Braden; that Braden had not examined and approved it on her behalf; that the $100,000 loan proceeds had not gone into building and construction costs but instead had gone to pay debts of K & B; and that Mr. Blaes and other persons, and not the Bank, had made the second loan. Soon thereafter this action was filed.

The plaintiff claims that a portion of the funds from the 1973 mortgage was not used for the construction of improvements and to that extent the mortgage and the subordination agreement are void:

(1) for failure of consideration;

(2) because the representations by K & B in the subordination agreement were false, or negligent, and constitute a breach of the lease;

(3) because the Bank was negligent in advancing mortgage proceeds for purposes other than for new construction; and

(4) because both Bledsoe and the Bank breached a fiduciary duty to plaintiff by permitting the use of such funds for such purposes, and by failing to advise plaintiff of the consequences of the misuse of funds.

She asks that the 1973 mortgage be reformed. As to the 1975 mortgage and subordination agreement, she claims that these instruments are void:

(2) because of an implied obligation of K & B not to request plaintiff’s subordination except when required by a mortgagee to finance new construction;

(3) because of false representations by Bledsoe and K & B that the mortgage proceeds would be used for construction of improvements on the real estate; in stating that the instrument would be presented to her attorney for examination prior to filing; and in advising her that the Bank would be the mortgagee; and

(4) because the Bank, K & B, and Bledsoe each breached fiduciary duties owed to the plaintiff.

Plaintiff asks that the 1975 mortgage be declared void; and she seeks damages as against the Bank, K & B, and Bledsoe. She asserts no claim against the impleaded defendants, and no cross-claim and no third party claim is made against them. After the completion of discovery, motions for summary judgment were sustained. The trial court made findings of fact (some of which are disputed) and conclusions of law, and entered judgment for the defendants. In substance, its conclusions of law were:

(1) that the Bank owed plaintiff no duty to supervise the disbursement of the proceeds of either loan, and therefore could not be negligent towards her;

(2) that neither the Bank, Bledsoe, nor K & B occupied a fiduciary relationship with or owed a fiduciary duty to plaintiff;

(3) that Bledsoe was not the agent of Shirk, Shirk, or Engles in obtaining the $100,000 subordination;

(4) that there is no clear and convincing evidence that K & B fraudulently obtained the subordination agreement to the $100,000 mortgage; and that even if there were fraud, there is no evidence of complicity in or knowledge of such fraud by the Bank or the impleaded defendants, and the mortgage must be held valid with respect to them;

(5) that on the basis of G. Credit Co. v. Mid-West Land Development, Inc., 207 Kan. 325, 485 P.2d 205 (1971), plaintiff was obligated to subordinate for equipment, inventory and operating capital;

(6) that plaintiff’s' action against the bank on the basis of fraud, negligence or breach of fiduciary duty with respect to the 1973 mortgage is barred by K.S.A. 60-513; and

(7) that the consideration for the original lease is sufficient consideration for the subsequent subordination agreements.

The first issue presented is the claim of plaintiff that the trial court erred in entering summary judgment when there were disputed facts. The rules to be applied when considering motions for summary judgment have been set forth in many of our decisions. Mildfelt v. Lair, 221 Kan. 557, 559, 561 P.2d 805 (1977); Stripling v. Star Lumber & Supply Co., Inc., 216 Kan. 507, 509, 532 P.2d 1101 (1975). Summary judgment is proper only if there are no genuine issues as to any material fact. The trial court, in ruling upon motions for summary judgment, may not determine factual issues; instead, the trial court should search the record to determine whether issues of material fact do exist. Pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. If there is a reasonable doubt as to the existence of issues of fact, a motion for summary judgment should not be sustained. And finally, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment.

Plaintiff’s contentions regarding the second subordination agreement center upon the events surrounding her signing of that instrument. Her version is substantially as related above. Mr. Bledsoe, when his deposition was taken, did not recall where the document was signed, nor did he have any recollection of specific conversations with Mrs. Dugan at that time. Mrs. Dugan’s deposition testimony is to the effect that Bledsoe told her that the Bank was making the loan; he promised to deliver the document to her attorney for examination prior to recording; and he misled her as to the proposed use of the proceeds of the $100,000 mortgage. These facts were material; they were in dispute; and we conclude that the trial court erred in entering summary judgment as to these issues.

In this connection we should also discuss the appropriate standard to be applied when considering a motion for summary judgment against a claim of fraudulent conduct. The trial court found “no clear and convincing evidence” of fraud. Although to withstand a motion for summary judgment, an allegation of fraud must be pleaded with particularity under K.S.A. 60-209(¿>), and the party resisting the motion cannot rely solely upon pleadings, there is no special test of the evidence presented different from the usual standards on summary judgment. Neither K.S.A. 60-256 nor Rule 141, 224 Kan. lxviii, make any distinction between fraud and other causes of action, when a motion for summary judgment is before the court. We find no Kansas cases where this matter has been considered, but we note that federal courts apply the usual summary judgment rules to actions based upon fraud. Knoshaug v. Pollman, 148 F. Supp. 16 (D.N.D.), aff’d 245 F.2d 271 (8th Cir. 1957); United States v. Gill, 156 F. Supp. 955 (W.D. Pa. 1957). We conclude that a party resisting a motion for summary judgment in an action based upon fraud need not present “clear and convincing evidence” of fraud in opposing the motion.

The second issue presented is plaintiff’s claim that there was a fiduciary relationship between Mrs. Dugan and the Bank, and that the Bank had a duty to tell her the purposes for which disbursements were being made out of the $275,000, and the use being made of the $100,000.

Kansas recognizes the general rule that the relationship between a bank and its depositor is that of creditor-debtor and not of a fiduciary. Baker, Administrator v. Brial, 185 Kan. 322, 341 P.2d 987 (1959); Herbel v. Peoples State Bank, 170 Kan. 620, 228 P.2d 929 (1951); Epley v. Bank, 104 Kan. 489, 180 Pac. 187 (1919). Mrs. Dugan and her husband were long-time customers of the Bank; they had both a checking account and a savings account. Through the years they occasionally borrowed from the Bank, and after Mr. Dugan’s death, Mrs. Dugan borrowed a sum of money in order to pay the estate and inheritance taxes. Mrs. Dugan saw one of the bank officers at the site during construction of the restaurant and club, and exchanged pleasantries with him. At no time did she seek the advice of any bank officer or employee, nor did she have any discussion with anyone at the Bank concerning the lease, the construction, the mortgages, or the subordination agreements. There is no evidence that the Bank served as Mrs. Dugan’s financial adviser.

The determination of a fiduciary relationship is essentially a factual one. In Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, Syl. ¶ 4, 553 P.2d 254 (1976), we said:

“A fiduciary relation does not depend upon some technical relation created by, or defined in, law. It may exist under a variety of circumstances, and does exist in cases where there has been a special confidence reposed in one v^ho, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence.”

The existence of a fiduciary relationship between a bank and a customer has arisen under unusual circumstances; usually, the bank had dealt directly with the customer regarding the matters involved in the litigation, and the bank had knowledge of the reliance and confidence of the customer; in some instances the bank stood to profit from non-disclosure to the customer. Many of these cases are collected in the annotation found at 70 A.L.R.3d 1344. We have been unable to locate any case in which a fiduciary relationship was held to arise solely through a long-standing creditor-debtor relationship or prior dealings between the customer and the bank.

In the case of Amortibanc Investment Co. v. Jehan, 220 Kan. 33, 551 P.2d 918 (1976), relied upon by plaintiff, there were direct dealings between Jehan and Amortibanc, both orally and in writing; Amortibanc knew that Jehan was relying upon it to inspect and to make proper disbursement of mortgage proceeds during construction. In Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50 (1928), plaintiff was improvident, had no sound business judgment of the value of property, and practically her only business experience had been with Nelson, a banker, and Holmquist, the administrator of her husband’s estate. Nelson was held to owe plaintiff a fiduciary duty; his purchase of all of plaintiff’s assets for a fraction of their worth was set aside. Similarly, a fiduciary relationship was found to exist, giving rise to a fiduciary duty, under the particular facts of the following cases: Brasher v. First Nat. Bank of Birmingham, 232 Ala. 340, 168 So. 42 (1936), where the plaintiff employed a bank’s trust department to advise and assist her in the probate of her deceased husband’s will, and the bank failed to make certain disclosures; Tone v. Halsey, Stuart & Co., Inc., 286 Ill. App. 169, 3 N.E.2d 142 (1936), where a bank employee made false and fraudulent representations to the plaintiff regarding the financial conditions of a business whose bonds plaintiff was purchasing through the bank; First National Bank in Lenox v. Brown, 181 N.W.2d 178 (Iowa 1970), where the bank loaned money to a customer to purchase a business, and the bank failed to disclose its superior information about the business being purchased, and where the bank stood to benefit from the transaction; and Richfield Bank and Trust Co. v. Sjogren, 309 Minn. 362, 244 N.W.2d 648 (1976), where the bank made a loan for a particular purpose, knowing that the purpose could not be fulfilled.

Mrs. Dugan and her husband had a long-standing relationship with the Bank, but there is no indication that the Bank served as a financial adviser to Mrs. Dugan, and there was no direct contact regarding the present transaction. The Bank made no false representations; it did not induce Mrs. Dugan to enter into the subordination agreements; it was not requested by her to disclose any information; and it did not withhold any information which it should, in good conscience, have disclosed. We conclude that there was no fiduciary relationship between the Bank and Mrs. Dugan as a matter of law, and there was no breach of fiduciary duty. Likewise, the Bank had no obligation to Mrs. Dugan to supervise the expenditure of the mortgage proceeds, or to see that each dollar was spent for actual construction. The Bank was not negligent as a matter of law. We therefore conclude that the trial court was correct in entering summary judgment in favor of the Bank on these issues. We have not overlooked other cases and authorities cited by industrious counsel for plaintiff, but we find them distinguishable upon the facts and not persuasive.

Next, plaintiff contends that her evidence of fraud on the part of Bledsoe and K & B was clear, as was her evidence that Bledsoe breached his fiduciary duty to her. The question of fraud or fraudulent misrepresentation, as we have noted above, is one which is based upon disputed facts, and which remains for the trier of facts to resolve. We turn then to the plaintiff’s claim that Bledsoe owed her a fiduciary duty at the time of the execution of the second subordination agreement. The relationship between Mr. Bledsoe and Mrs. Dugan was primarily that of lessor-lessee, and under usual circumstances this is not a confidential relationship. Although confirming this rule, Robinson v. Eagle-Picher Lead Co., 132 Kan. 860, Syl. ¶ 1, 297 Pac. 697 (1931), also qualifies the rule, stating:

“[Pjeculiar and unusual facts, circumstances or provisions in the lease may impose such duties and obligations as to constitute the relationship as fiduciary.”

The record indicates that Mrs. Dugan had been a party to other leases in which Bledsoe was involved; however, it appears that all of their dealings had been at arms’ length, and there is no indication that she reposed special confidence in him or relied upon him for guidance and advice. Construing her deposition most favorably for her position, we conclude that the facts may support a finding of misrepresentation or fraud, but the facts do not support the legal conclusion that Bledsoe occupied a fiduciary relationship with Mrs. Dugan.

Plaintiff contends that there was a failure of consideration to the extent that mortgage proceeds were not used to improve the real estate. She strictly construes the provision of the lease, and seeks to have the mortgage construed to secure only that portion of the funds which is directly traceable into construction. The appellees, on the other hand, would not measure the required subordination against the disbursements, but against the value of the improvements, and the total cost to K & B. In G. Credit Co. v. Mid-West Land Development, Inc., 207 Kan. 325, 485 P.2d 205 (1971), we considered the phrase “for purposes of financing the improvements to be placed upon said property” to include the cost of incidental and preliminary expenses prior to actual construction. We mentioned fees for engineering and architectural plans and specifications, lease rental, and interest during construction, as examples of such preliminary expenses. From the record before us, it appears that in excess of the $275,000 mortgage proceeds were used for actual construction or for items allowable under the Mid-West rule. Bledsoe and K & B contend that much more than $375,000 was spent on the improvements, including construction, architect’s fees, equipment, and fixtures; and they claim that the present value of the improvements exceeds $500,000. The latter we regard as immaterial. It is undisputed that very substantial improvements were made on the property. It is not necessary that every mortgage dollar be traceable directly into the project; K & B may well have spent some funds directly for improvements while the original loan papers were being prepared, but prior to receipt of the loan proceeds. Substantial improvements were made, and we conclude that there was ample consideration to support the 1973 subordination agreement.

The second or 1975 subordination agreement, however, is a different kettle of fish. Mrs. Dugan claims that none of the proceeds from the 1975 loan was spent for improvements of any kind to her property. She was obligated under the lease to subordinate her fee interest only “in financing new construction on the leased premises.” Nothing in the lease requires her to subordinate her fee interest in order to bail the lessee out of a financial predicament. The lease contemplates improvement to the land in exchange for subordination. A promise of improvement is the consideration; here plaintiff alleges in effect that no improvements to the land were contemplated or intended by K & B and none were made. Ordinarily, where there is some consideration, a valid contract may result; but where there is a complete lack of consideration, there can be no contract. Every contract, to be legally enforceable, must be supported by a consideration. Feaster Trucking Service, Inc. v. Parks-Davis Auctioneers, Inc., 211 Kan. 78, 85, 505 P.2d 612 (1973); Alliance Mutual Casualty Co. v. Scheufler, 203 Kan. 171, 176, 453 P.2d 15 (1969); Coder v. Smith, 156 Kan. 512, 134 P.2d 408 (1943); and see 17 C.J.S., Contracts § 71. We conclude that the trial court, on the facts before it, was correct in holding that there was consideration for the 1973 agreement, but that the court erred in holding as a matter of law that there was consideration for the 1975 subordination agreement. Consideration for the original lease is not consideration for a subsequent subordination agreement, at least where the latter is one not required by the terms of the lease.

The next issue is whether the Bank, Blaes, the Shirks, and Engels are necessary parties to this action. Plaintiff seeks reformation or cancellation of the 1975 mortgage and subordination agreement. The Bank is the escrow agent of the others, who advanced the money for the loan. The mortgage and the subordination agreement provide security for the loan. Should the trial court hold, after trial, that those documents are void as to Mrs. Dugan, then while such a holding would not affect the obligation of K & B to make payment of the funds advanced, it would directly affect the efficacy of the mortgage and wipe out the lien created by that instrument on the land. We conclude that Blaes, the Shirks, Engels, and the Bank are necessary parties to a complete determination of this action. See K.S.A. 60-219. The Bank, however, will be affected only tangentially in its position as designated mortgagee and escrow agent; it has no financial interest in the 1975 mortgage.

The statute of limitations issue, and all other issues raised in the briefs, have been carefully considered but need not be determined in view of our disposition of this appeal.

We affirm the trial court’s judgment in favor of the defendants and against the plaintiff as to all issues concerning the 1973 mortgage and subordination agreement, for the reasons that neither the Bank nor Bledsoe occupied a fiduciary relationship towards plaintiff; there was no breach of fiduciary duty; there was no actionable negligence; there was consideration sufficient to support the subordination agreement; and the mortgage proceeds were spent substantially to pay the cost and related expenses of the project.

We reverse the judgment as to all issues (except the claims of breach of fiduciary duty) arising from the 1975 mortgage and subordination agreement, and we remand this case for trial of those issues.

Fromme, J., not participating.