Wabash Grain, Inc. v. Bank OneWabash Grain, Inc. v. Bank One
OPINION
Wabash Grain, Inc., Stephen M. Syfrett, and The First National Bank of Dana (collectively “Wabash”) appeal the trial court’s order granting Bank One, Crawfordsville, NA.’s (“Bank One”) renewed motion for summary judgment. Wabash raises three issues which we consolidate and restate as:
(1) whether the trial court erred in ruling on the renewed motion for summary judgment; and,
(2) whether the trial court erred in granting Bank One’s renewed motion for summary judgment.
In addition, Bank One raises one issue on cross-appeal which we restate as whether the trial court erred in denying Bank One’s alternative motion for summary judgment. We affirm.
The facts most favorable to Wabash follow. In 1993, Bank One loaned Wabash money to finance inventory and a recently constructed grain bin. Bank One extended the grain bin construction loan several times. Bоth parties signed all of these agreements and extensions. In addition, Syfrett personally guaranteed the loan. Eventually, the parties executed a note on July 14,1994, for $260,000 that extended the grain bin construction loan to August 31, 1994. Wabash then defaulted on the note.
In 1995, Bank One filed a complaint against Wabash and Syfrett seeking to collect on both the note and Syfrett’s personal guaranty. Wabаsh filed a counterclaim based upon theories of promissory estoppel, fraud, and breach of an alleged oral agreement. Specifically, Wabash claimed that Bank Onе had orally agreed to lend Wabash the $260,000 on a seven year repayment schedule. In response, Bank One filed a motion for summary judgment on both its complaint and Wabash’s counterclaim designating and relying upon Wabash’s admission that it had defaulted on the promissory note. The trial court denied the motion. Bank One later filed a second motion for summary judgment arguing the parole evidеnce rule excluded any evidence contradictory to the promissory note. Again, the trial court denied the motion.
Bank One later renewed its first motion for summary judgment asking the trial court to reconsider its decision in light of
Ohio Valley Plastics, Inc. v. Nat’l City Bank,
I.
The first issue is whether the trial court erred in ruling on the renewеd motion
II.
The seсond issue is whether, in reconsidering its previous order, the trial court erred in granting Bank One’s motion for summary judgment. Wabash contends that the applicable statute of frauds does not require a single writing signed by both parties and the statute does not preclude the use of waiver and estoppel defenses. Bank One argues that the statute requires a single writing signed by both parties and that such a writing does not exist between it and Wabash that extends the $260,000 note for seven years.
Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
The applicable statute of frauds,
“A debtor may bring an action upon an agreement with a creditor to еnter into a new credit agreement, amend or modify a prior credit agreement, forbear from exercising rights under a prior credit agreement, or grant an extension under a prior credit agreement only if the agreement:
(1) is in writing;
(2) sets forth all the material terms and conditions of the agreement; and
(3) is signed by the creditor and the debtor.”
“(1) lend ... money, ...;
(2) otherwise extend credit; or
(3) make any other financial accommodation.”
Wabash first argues that
Wabash next argues that
“The substance of an action, rather than its form, controls whether a particular statute has application in a particular lawsuit ... [and] ... [r]egardless of whether the present cause of action is labeled as a breach of contract, misrepresentation, fraud, deceit, promissory estoppel, its substance is that of an action upon an agreement by a bank to loan money.
* * * * *
... a claim of estoppel or fraud will not operate to remove a case from a Statutе of Frauds where the promise relied upon is the very promise that the Statute declares unenforceable if not in writing.
Were this not the rule the statute would be rendered virtually meaningless becаuse the frustrated claimant would always assert an oral promise/agreement to defeat by means of estoppel the statute’s requirement for a written one. The contest would then сoncern the credibility of the evidence of an oral promise of agreement. That of course, is precisely what the statute seeks to avoid.’ ”
Ohio Valley Plastics,
Nonetheless, a case may be removed from the operation of the statute of frauds where an estoppel has been established by showing:
“ ‘ ... that the other party’s refusal to carry out the terms of the agreement has resulted not merely in a denial of the rights which the agreement was intended to confer, but the infliction of an unjust and unconscionable injury and loss.’
In other words, neither the benefit of the bargain itself, nor mere inconvenience, incidental expenses, etc. short of a reliance injury so substantial and independent as to constitute an unjust and unconscionable injury are sufficient to remove the claim from the operation of the Statute of Frauds.”
Id. (quoting Whiteco Industries, Inc. v. Kopani,
III.
Finally, Bank One argues that the trial court erred in denying its second motion for summary judgment. Specifically, Bank One sought to have the trial court order any parole evidence excluded from consideration. As we have resolved the first two issues in Bank One’s favor, we need not address this issue further because under the circumstances of this appeal it is moot.
For the foregoing reasons, we affirm the trial court’s order granting Bank One’s motion for summary judgment.
Affirmed.
Notes
. Although the failure to cite any support for one’s argument may result in waiver, we decide to address this issue on the merits. See Ind. Appellate R. 8.3(A)(7).