Swier v. Norwest Bank

409 N.W.2d 121, 1987 S.D. LEXIS 300

• Court: South Dakota Supreme Court
• Decided: July 8, 1987
• Docket: 15248
• Status: Published

Opinions

FOSHEIM, Retired Justice.

Floyd R. and Eileen B. Swier (Swiers) sued Norwest Bank (Bank) on third-party beneficiary and negligence theories. The trial court granted motions to dismiss both causes of action. We affirm.

In October of 1978, Swiers received a $179,982.93 loan from Bank on a demand note. The loan was ninety percent guaranteed by the Farmers Home Administration (FmHA) and scheduled to be paid over seven years with an interest rate originally established at 9¾%. By the following summer, Swiers consistently fell short of meeting the full amount of their principal and interest payments. By March of 1981, Swi-ers were approximately $20,000 delinquent. That same month Bank informed Swiers that due to higher interest rates in the market it would either have to raise their interest rate or call in the loan. Swiers reluctantly consented to this increase, and also to subsequent increases during the term of the loan. Due to the interest increases, Swiers paid Bank $30,555.12 more in interest than they would have paid had the original rate remained in effect. Swi-ers paid Bank back in January of 1985, apparently with the proceeds of a new FmHA loan.

A form committing FmHA to guarantee loans made to Swiers stated that “[a]ny change in interest rates from date of issuance of this form must be approved by the FmHA County Supervisor.” The document was dated approximately the same date Bank extended Swiers the loan. FmHA approval was never obtained prior to the interest modifications,, However, Bank sent the agency semi-annual reports which kept the agency abreast of the interest rates being assessed. Neither Swiers nor Bank were aware of the approval requirement until after the loan was paid off.

Swiers sued Bank, claiming that as borrowers they were third-party beneficiaries of the Bank/FmHA guarantee agreement. They claimed the $30,555.12 as damages, as well as physical and emotional losses and punitive damages. Their action was dismissed for failure to state a claim upon which relief could be granted. Prior to dismissing the action, the trial court granted Swiers’ motion to amend their complaint to include a negligence cause of action. The negligence claim was added after a deposition of a bank official revealed that Bank’s agents were unaware of the FmHA approval provision. Bank did not resist the motion to amend.

We must first identify the true nature of the motions before the trial court. In deciding Bank’s motion to dismiss, the court went beyond the face of the pleadings and considered deposition testimony, the words of the contract, and other evidence. In deciding motions to dismiss, SDCL 15-6-12(c) provides that where “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment....” The lower court’s order and memorandum opinion denominated the motion as it was framed by Bank — a motion for dismissal.¹ Regardless of the label attached by the lower court, however, “an appellate court will review a dismissal under the standards of summary judgment if outside matters were relied upon." 2A J. Moore & J. Lucas, Moore’s Federal Practice If 12.09[3] (2d ed. 1986). Therefore, although classified as a motion to dismiss below, this court will apply the familiar Wilson v. Great Northern Railway Co., 83 S.D. 207, 157 N.W.2d 19 (1968), standards applicable to summary judgment review. Under these standards we must view the evidence most favorably to Swiers, the non-moving parties, and place the burden of proof upon Bank to demonstrate clearly that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. E.g. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180 (S.D.1986); Wilson, supra.

It is undisputed that Bank failed to request FmHA approval prior to the interest increases. However, it is equally undisputed that FmHA was informed of the interest increases through the semi-annual reports furnished by Bank. Also, Mr. Swier personally informed two agents of FmHA of the increased rates while the loan was outstanding.² Under these circumstances, we hold FmHA approved the increased interest rates. Because Swiers’ complaint is premised on alleged injuries flowing from Bank’s failure to obtain FmHA approval, the trial court correctly dismissed the complaint.

Finally, we address Swiers’ claim that under FmHA regulations Bank had no right to increase the interest rate. Swiers cite 7 CFR § 1980.170(e)(1) (1986), which provides in part: “The interest rate initially established for each loan will remain constant during the existence of the FmHA guarantee.” This regulation governs FmHA loans of a type not in question here and therefore does not apply in this case. See 7 CFR § 1980.101(a) (1986). Swiers received an FmHA emergency livestock (EL) loan. The regulations governing Swi-ers’ EL loan are contained in 7 CFR § 1980.201 through .294 (1978). These provisions contain nothing which would prohibit raising the interest rate while the loan is outstanding. See 7 CFR § 1980,224 (1978).

Affirmed.

WUEST, C.J., MORGAN and SABERS, JJ., concur. HENDERSON, J., dissents. MILLER, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.

1 . Swiers do not argue that this court should reverse the lower court for failing to consider Bank’s motion as one for summary judgment.

2 . Mr. Swier asked the agents whether Bank had the right to raise the rates. According to Mr. Swier’s deposition, one of the agents told him he would check into whether Bank had the right to raise the rates. This agent was transferred out of Brookings shortly thereafter and never replied to Mr. Swier regarding his inquiry. There is no evidence in the record whether the second agent ever replied to his inquiry.