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

499 N.W.2d 138, 1993 S.D. LEXIS 39, 1993 WL 124735
CourtSouth Dakota Supreme Court
DecidedApril 21, 1993
Docket17954
StatusPublished
Cited by36 cases

This text of 499 N.W.2d 138 (Werner v. Norwest Bank South Dakota, N.A.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Werner v. Norwest Bank South Dakota, N.A., 499 N.W.2d 138, 1993 S.D. LEXIS 39, 1993 WL 124735 (S.D. 1993).

Opinions

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 (Wer-ner) claim that appellee Norwest had [140]*140breached 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 es-toppel?

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. Nor-west 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 Nor-west loan officer, about financing an order of 10,000 to 20,000 picture frames for Zon-dervan. (Werner refers to this order as P03.) 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 P03. 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 non-moving 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 [141]*141more 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. Cory. 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 Wer-ner) 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, Wer-ner fails to specify terms that indicate the existence of a contract.

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Bluebook (online)
499 N.W.2d 138, 1993 S.D. LEXIS 39, 1993 WL 124735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/werner-v-norwest-bank-south-dakota-na-sd-1993.