Equality Bank of Evansville v. Suomi

836 P.2d 325, 1992 Wyo. LEXIS 109, 1992 WL 195917

• Court: Wyoming Supreme Court
• Decided: August 18, 1992
• Docket: 91-195, 91-196
• Status: Published

Opinions

GOLDEN, Justice.

The Equality Bank of Evansville, Wyoming, f/d/b/a Jeffrey City State Bank (Bank), filed a deficiency action against Dale and Rebecca Suomi (Suomis) after the sale of a mobile home in which the Bank held a security interest. The Suomis denied liability in their answer and counterclaimed for damages. The Bank and the Suomis moved for summary judgment on the complaint. The Suomis moved for summary judgment on their counterclaims. The district court granted summary judgment to the Suomis on the Bank’s complaint, dismissing the deficiency action because the Suomis were not given adequate notice of sale. The district court denied the Suomis’ motion for summary judgment on their counterclaims because of an inadequately developed record. In appeal No. 91-195, the Bank appeals the summary judgment granted to the Suomis on the deficiency action. In appeal No. 91-196, the Suomis appeal the denial of their motion for summary judgment on their counterclaims. We will affirm appeal No. 91-195 and dismiss appeal No. 91-196.

ISSUES

The dispositive issues for the purpose of these appeals are:

(1) Whether the Bank presented evidence in its motion for summary judgment sufficient to create an issue of material fact regarding its right to bring a deficiency action against the Suomis.

(2) Whether the Suomis may appeal the district court’s denial of their motion for summary judgment on their counterclaims for damages.

FACTS

On June 18, 1979, Richard and Patty Burrus (Burruses) executed a promissory note to the Bank to obtain financing to buy a new mobile home. Under the terms of the promissory note, the Burruses agreed to pay the Bank 120 monthly installments of $290.71, totaling $34,885.20. The payments reflected a principal amount of $17,-575 financed at 15.65 percent interest for ten years. As security for the promissory note, the Burruses signed a security agreement/financing statement with the Bank, pledging the mobile home as collateral. The Bank duly perfected its purchase money security interest in the mobile home.

On July 24, 1980, the Burruses entered into a buy-sell agreement with the Suomis concerning the mobile home. The buy-sell agreement was expressly conditioned upon the Bank’s approval. As stated consideration for the sale, the buy-sell agreement obligated the Suomis to pay the Burruses $500 and to either refinance or assume the mobile home loan. In an attempt to refinance the loan, the Suomis submitted a loan application to the Bank. The Bank denied the Suomis’ loan application on October 10, 1980.

The Suomis occupied the mobile home for approximately one-and one-half years following the execution of the buy-sell agreement. It is not clear from the record or briefs whether the Suomis made payments during this period of time to the Bank or to the Burruses. The Suomis were, however, obligated to make the payments directly to the Bank under the terms of the buy-sell agreement. Nevertheless, the Suomis, in an attempt to wrap up their affairs in Wyoming before returning to Florida, entered into an agreement on February 21, 1982, to sell the mobile home to Mike and Lori Warren (Warrens). Under this agreement, the Warrens agreed to refinance the outstanding balance due on the Burrus’ promissory note as consideration for the sale. The Bank subsequently represented to the Suomis that the Warrens’ refinancing application had been approved and requested from the Suomis a “Release of Title” and “Power of Attorney” to consummate the transaction. The Suomis executed the requested documents on November 5, 1982, and December 22, 1982, respectively, and forwarded them to the Bank.

On March 1, 1983, the Bank, not having consummated the Warren sale, sent a “notice letter” to the Suomis. The notice letter provided in relevant part:

Be advised by this writing, as of this day March 1, 1983, the Jeffrey City State Bank has repossessed your 1979 Chateau Mobile Home used as security on loan number 20-12706 at this Bank.

You are hereby notified you have until March 18, 1983 to pay the balance of this note, $15,111.36 in full, or this bank will sell the mobile home to the highest bidder and you will be liable for any deficiency.

The Suomis apparently failed to respond to the notice letter. The Bank thereafter sold the mobile home for $7,509, leaving an unpaid balance of $8,676.13 upon which interest accrued at the rate of $3.72/day.

On March 10, 1990, the Bank filed a deficiency action against the Burruses and the Suomis, seeking to recover the unpaid balance on the promissory note, together with accrued interest, attorneys fees, and costs. The Suomis were appropriately served with process; the Burruses were never located. The Suomis answered the Bank’s complaint by denying any obligation on the promissory note executed by the Burruses and by counterclaiming for damages based on allegations of wrongful repossession and breach of fiduciary duty. Specifically, the Suomis contended that the March 1, 1983 notice letter did not comply with the requirements of Wyo.Stat. § 34-21-963 (recodified at § 34.1-9-504 (June 1991)), foreclosing the deficiency action and entitling them to damages under Wyo.Stat. § 34-21-966 (recodified at § 34.1-9-507 (June 1991)). The Suomis also asserted that they were entitled to damages because the Bank breached its fiduciary obligation to complete the Warren sale.

The Bank and the Suomis moved for summary judgment on the complaint. The Suomis moved for summary judgment on their counterclaims. The district court granted summary judgment to the Suomis on the deficiency action, dismissing the Bank’s complaint because the Suomis were not given adequate notice of sale. The district court denied the Suomis’ motion of summary judgment on their counterclaims because of an inadequately developed record. The Bank appeals the summary judgment granted to the Suomis on the deficiency action. The Suomis appeal the denial of their motion for summary judgment on their counterclaims.

STANDARD OF REVIEW

When reviewing the propriety of a summary judgment, this court examines the record from the vantage point most favorable to the party opposing summary judgment to determine whether there exists a genuine issue of material fact to preclude disposition of the case as a matter of law. A genuine issue of material fact exists when a disputed fact, if proved, would have the effect of establishing or refuting an essential element to the cause of action or defense asserted by the parties. If upon such review no genuine issue of material fact is found to exist, we will uphold a summary judgment under any legal theory properly supported by the record. Century Ready-Mix v. Campbell Co., 816 P.2d 795, 798-99 (Wyo.1991).

DISCUSSION

1. Appeal No. 91-195

The Bank appeals from the district court's order which granted to the Suomis their motion for summary judgment to dismiss its complaint for a deficiency judgment. The Bank specifically takes issue with the district court’s determination that the notice of sale given to the Suomis was deficient as a matter of law. The Suomis counter that the Bank failed to present evidence in its motion for summary judgment sufficient to create an issue of material fact regarding its right to bring a deficiency action against the Suomis. The Suomis argue alternatively that the district court was correct in determining that the notice of sale was legally deficient. We find the issue raised by the Suomis concerning the adequacy of the Bank’s motion for summary judgment to be dispositive for the purpose of this appeal. Accordingly, we address only that issue.

The Bank’s right to maintain a deficiency action against the Suomis hinges, at the most fundamental level, upon the validity of the Suomi-Burrus buy-sell agreement. The essence of the Bank’s position is that it is an intended third-party beneficiary to the agreement. Our objective, then, is to examine the motions for summary judgment filed by the parties to determine whether a genuine issue of material fact was raised concerning the validity of the buy-sell agreement. That both parties filed motions for summary judgment does not mean no genuine issue of material fact exists. Such a determination remains a question of law for the court. Seay v. Vialpando, 567 P.2d 285, 287 (Wyo.1977).

The Bank was the first to file a motion for summary judgment on its complaint. This motion was supported by the affidavit of Darrell Satterfield, an officer of the Bank. In his affidavit, Mr. Satter-field stated the facts alleged to be central to the Bank’s cause of action against the Suomis. They included: (1) that the Bur-ruses executed and delivered to the Bank a promissory note on June 18, 1979; (2) that the Suomis assumed the Burruses’ obligation on the promissory note via the buy-sell agreement on July 24, 1980; (3) that the promissory note was in default; (4) that due notice of repossession was given to the Suomis on March 5, 1983; (5) that the mobile home was sold on November 4, 1973, for $7,509, leaving a deficiency of $8,676.13; and (6) that the Suomis have failed to satisfy the unpaid balance upon demand. Attached as supporting documentation were copies of the Burruses’ promissory note, the Suomi-Burrus buy-sell agreement, notice of repossession, and receipt of notice.

The Suomis responded with a cross-motion for summary judgment on the complaint. This motion was supported by the affidavits of Dale Suomi and Rebecca Suo-mi. In their affidavits, the Suomis both stated that they never assumed, guaranteed, or otherwise agreed to be responsible for the Burruses’ promissory note. Attached as supporting documentation was a copy of a “Statement of Credit Denial, Termination, or Change” sent to the Suomis by the Bank on October 10, 1980 in response to the Suomis’ attempt to refinance the purchase of the mobile home. Each party relied upon its respective motion for summary judgment to oppose the motion of the other party.

On appeal, the Suomis contend that the affidavit of Darrell Satterfield, along with attached exhibits, failed to raise an issue of material fact regarding the Bank’s right to maintain a deficiency action against the Suomis. Specifically, the Suomis contend that Mr. Satterfield’s affidavit was not made on personal knowledge. For support of their contention, the Suomis cite Rule 56(e) of the Wyoming Rules of Civil Procedure. The rule provides, in relevant part: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

A review of Mr. Satterfield’s affidavit discloses that he is an officer of Equality Bank of Evansville. There is no indication in Mr. Satterfield’s affidavit that he possesses any independent, personal knowledge of the events that occurred some eight years earlier at Jeffrey City State Bank. Any knowledge that Mr. Satterfield has of events central to this case apparently came from his review of the loan file. Consequently, we examine the documents submitted in support of Mr. Satterfield’s affidavit to see if they raise a genuine issue of material fact concerning the Bank’s right to maintain a deficiency action against the Suomis.

The first document submitted in support of Mr. Satterfield’s affidavit was a copy of the Burruses’ promissory note. This note was signed by only Richard and Patricia Burrus. Standing alone, this note fails to raise a genuine issue of material fact concerning the Bank’s right to maintain a deficiency action against the Suomis. Wyo. Stat. § 34.1-3-401(a) (June 1991) provides that “A person is not liable on an instrument unless (1) the person signed the instrument, or (2) the person is represented by an agent or representative who signed the instrument and the signature is binding on the represented person under section 34.1-3-402.” There is absolutely no evidence that the Burruses were acting as agents of the Suomis at the time the note was executed.

The second document submitted in support of Mr. Satterfield’s affidavit was a copy of the Suomi-Burrus buy-sell agreement. Paragraph 1 of this agreement provides, in relevant part, “This agreement is conditional upon approval of the Jeffrey City State Bank.” Paragraph 3 provides, in relevant part, “Buyers [Suomis] shall assume or refinance the present indebtedness on said home to the Jeffrey City State Bank.” This document, even when coupled with the Burruses’ promissory note, also fails to raise a genuine issue of material fact concerning the Bank’s right to maintain a deficiency action against the Suomis. The Bank did not submit any evidence that it had approved the Suomi-Burrus buy-sell agreement. Rather, the only evidence submitted concerning the Bank’s actions in this regard was a copy of the “Statement of Credit Denial, Termination, or Change” sent to the Suomis in October of 1980.

The third and fourth documents submitted in support of Mr. Satterfield’s affidavit — the notice of sale and receipt — have no bearing upon the foundational question presently under consideration. Consequently, they will not be discussed.

We are left, then, with the following state of affairs: The Suomis moved for summary judgment on the Bank’s complaint. The Suomis' position was that the Bank had no right to maintain a deficiency action against them. In support of their position, the Suomis submitted affidavits of Dale and Rebecca Suomi. These affidavits were made on personal knowledge and concerned matters upon which the Suomis were competent to testify. The Suomis stated by affidavit that they never assumed, guaranteed, or otherwise agreed to become responsible for the Burruses’ debt. Supporting the Suomis’ statements was a copy of the Bank’s “Statement of Credit Denial, Termination or Change.” The Bank relied upon its original motion for summary judgment to oppose that of the Suomis. The Bank’s only evidence in opposition to the Suomis’ denial of liability was a copy of the Suomi-Burrus buy-sell agreement. However, this agreement was expressly conditional upon the Bank’s approval. The Bank submitted no evidence that it had approved the agreement.

Rule 56(e) provides that, when opposing a motion for summary judgment properly supported by affidavit, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” We have explained that the evidence that is relied upon to sustain or defeat a motion for summary judgment must be such as would be admissible at trial and that it should be as carefully tailored and professionally correct as any evidence which would be presented to the court at the time of trial. Gennings v. First Nat. Bank of Thermopolis, 654 P.2d 154, 155 (Wyo.1982); and Newton v. Hunter, 423 P.2d 648, 650 (Wyo.1967). Given the state of the evidence in the instant case, we are constrained to conclude that the Bank failed to meet its burden of demonstrating specific facts by competent evidence sufficient to create a genuine issue of material fact concerning its right to maintain a deficiency action against the Suomis. Accordingly, we hold that, on this record, the Suomis were not legally responsible to pay the Bank any outstanding deficiency on the Burruses’ promissory note. We uphold the summary judgment granted by the district court to the Suomis, albeit on different grounds.

2. Appeal No. 91-196

The Suomis appeal from the district court’s order which denied their motion for summary judgment on the counterclaims for wrongful repossession and breach of fiduciary duty. The Suomis’ counterclaims fall, however, in light of our holding that the Suomis were not obligated to the Bank on the mobile home. We note also that the right to appeal does not lie from a denial of a motion for summary judgment, as' such is not a final order. E.g., J Bar H, Inc. v. Johnson, 822 P.2d 849, 859 (Wyo.1991). Accordingly, we dismiss appeal No. 91-196.

DISPOSITION

The judgment and order of the district court which granted to the Suomis their motion for summary judgment on the Bank’s complaint is affirmed. The Suomis’ appeal from the district court’s denial of their motion for summary judgment on their counterclaims is dismissed.

ROONEY, J:, Retired, filed a dissenting opinion.