Synergy4 Enters. v. Pinnacle Bank ( 2015 )

Nebraska Advance Sheets
SYNERGY4 ENTERS. v. PINNACLE BANK 241
Cite as 290 Neb. 241
of the district court regarding Sebade Brothers’ liability for
its material breach of the contract, but we reverse the court’s
award of damages and prejudgment interest, and remand the
cause for further proceedings.
Affirmed in part, and in part reversed and
remanded for further proceedings.
Heavican, C.J., and Miller-Lerman, J., not participating.
Synergy4 Enterprises, Inc., a Nebraska
corporation, et al., appellants, v.
Pinnacle Bank, appellee.
___ N.W.2d ___
Filed February 27, 2015. No. S-14-176.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
2. Statutes: Judgments: Appeal and Error. The meaning and interpretation of a
statute are questions of law. An appellate court independently reviews questions
of law decided by a lower court.
3. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
4. Statutes: Legislature: Intent. In order for a court to inquire into a statute’s leg-
islative history, the statute in question must be open to construction, and a statute
is open to construction when its terms require interpretation or may reasonably be
considered ambiguous.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed.
James S. Mitchell, of Law Offices of James S. Mitchell,
P.C., and, on brief, Clifford T. Lee for appellants.
Steven D. Davidson, of Baird Holm, L.L.P., for appellee.
Robert J. Hallstrom, of Brandt, Horan, Hallstrom & Stilmock,
for amicus curiae Nebraska Bankers Association, Inc.
Heavican, C.J., Connolly, McCormack, and Cassel, JJ.
Nebraska Advance Sheets
242 290 NEBRASKA REPORTS
P er Curiam.
NATURE OF CASE
Synergy4 Enterprises, Inc.; Michele K. Quinn; and Darold
A. Bauer (collectively Synergy4) brought an action against
Pinnacle Bank (Pinnacle) alleging three causes of action in
tort: promissory estoppel, negligent misrepresentation, and
fraud. Pinnacle asserted Synergy4’s claims were barred by
the credit agreement statutes of frauds1 because they consti-
tuted an action based on an oral promise to loan money. The
district court granted Pinnacle summary judgment on all three
claims, determining that the claims were barred by § 45-1,113.
We affirm.
FACTS
Synergy4 is a Nebraska corporation. Quinn and Bauer are
the sole shareholders and officers of Synergy4. Pinnacle is
a banking corporation that operates in Nebraska and whose
business includes providing loans to individuals and busi-
nesses. Scott Bradley was president of a Pinnacle branch with
whom Quinn had developed a longstanding banking relation-
ship of approximately 20 years. Synergy4 alleged that Quinn
and Bradley had a long-established course of dealing and that
Quinn and Bradley entered into lending agreements that were
often conducted on the basis of an oral lending commitment
considered binding by both parties.
In November 2008, Quinn was given the opportunity to
purchase a company at which she was the chief financial offi-
cer. On November 12, Quinn and Bauer met with Bradley to
discuss a loan and line of credit with which Quinn and Bauer
would be able to operate the business. Synergy4 alleges that
at that meeting, Bradley orally approved Quinn and Bauer’s
proposal for a line of credit of at least $1 million. The parties
also discussed Quinn’s upcoming trip to China in the spring of
2009 to purchase inventory and the need for substantial credit
advances to make the anticipated purchases.
After the meeting, Pinnacle provided Quinn and Bradley with
a commitment letter for a loan of $400,000. Notwithstanding
1
Neb. Rev. Stat. §§ 45-1,112 to 45-1,115 (Reissue 2010).
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SYNERGY4 ENTERS. v. PINNACLE BANK 243
Cite as 290 Neb. 241
the commitment letter, it was alleged that Bradley orally
assured Quinn and Bradley that Pinnacle would still provide a
loan for $1 million. On March 6, 2009, before Quinn went on
the purchasing trip to China, Bradley again assured Quinn that
she could proceed with the trip and that the $1 million credit
line was in place.
After receiving Bradley’s oral assurances, Quinn and Bauer
incorporated Synergy4 and entered into a 5-year lease on a
location and Quinn went to China on a 5-week purchasing trip.
During this trip, Quinn committed Synergy4 to approximately
$1.6 million in inventory purchases. On May 8, 2009, Bradley
advised Synergy4 that Pinnacle would not be lending more
than the $400,000 provided for in the commitment letter.
Throughout the summer of 2009, Quinn and Bauer attempted
to meet Synergy4’s financial commitments in operating their
business. In July or August 2009, Pinnacle provided Quinn
and Bauer an unsecured personal loan of $50,000 to pay
Synergy4’s payroll while Quinn and Bauer again attempted to
secure additional loans from Pinnacle. On August 13, Bradley
informed Synergy4 that Pinnacle would not make any further
advances on Synergy4’s credit line.
Synergy4 filed this lawsuit against Pinnacle in May 2013
alleging three causes of action: promissory estoppel, negligent
misrepresentation, and fraud. Pinnacle moved for summary
judgment, alleging that Synergy4’s claims were barred by
§ 45-1,113 of Nebraska’s credit agreement statute of frauds
because the purported $1 million credit agreement was not in
writing. The district court sustained the motion, concluding
that the plain language of § 45-1,113 barred Synergy4’s claim
for promissory estoppel. The court also dismissed Synergy4’s
claims for negligent misrepresentation and fraud.
ASSIGNMENTS OF ERROR
Synergy4 asserts that the district court erred in determining
that the Nebraska credit agreement statute of frauds bars its
claims. It asserts that the credit agreement statute of frauds is
coextensive with the general statute of frauds and, therefore,
allows claims based on all the common-law exceptions to the
statute of frauds.
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244 290 NEBRASKA REPORTS
STANDARD OF REVIEW
[1,2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, and gives that party
the benefit of all reasonable inferences deducible from the
evidence.2 The meaning and interpretation of a statute are ques-
tions of law.3 An appellate court independently reviews ques-
tions of law decided by a lower court.4
ANALYSIS
The issue presented is whether §§ 45-1,112 and 45-1,113 bar
Synergy4’s action based on oral promises and assurances made
by Pinnacle or its agents.
[3] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.5
Section 45-1,113(1) provides:
A debtor or a creditor may not maintain an action or
assert a defense in an action based on a credit agreement
unless the credit agreement is in writing, expresses con-
sideration, sets forth the relevant terms and conditions of
the credit agreement, and is signed by the creditor and by
the debtor.
For purposes of § 45-1,113, “credit agreement” means: “A
contract, promise, undertaking, offer, or commitment to loan
money or to grant or extend credit.”6
[4] Synergy4 argues that the statute was not intended to
bar common-law exceptions to the general statute of frauds
and cites to the statute’s legislative history. In order for a
court to inquire into a statute’s legislative history, the statute
in question must be open to construction, and a statute is
2
Harris v. O’Connor, 287 Neb. 182, 842 N.W.2d 50 (2014).
3
Pinnacle Enters. v. City of Papillion, 286 Neb. 322, 836 N.W.2d 588
(2013).
4
Id.
5
Watkins v. Watkins, 285 Neb. 693, 829 N.W.2d 643 (2013).
6
§ 45-1,112(1)(a)(i).
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SYNERGY4 ENTERS. v. PINNACLE BANK 245
Cite as 290 Neb. 241
open to construction when its terms require interpretation
or may reasonably be considered ambiguous.7 The language
of §§ 45-1,112 and 45-1,113 is not ambiguous or unclear.
Therefore, we decline to consider any statements made during
the committee hearings or floor debates. Instead, we look to the
plain language of the statutes to reach our conclusion.
Synergy4 contends that the Nebraska credit agreement stat-
ute of frauds is coextensive with Nebraska’s general statute of
frauds. It argues that because promissory estoppel applies to
the state’s general statute of frauds, it also applies to unwrit-
ten credit agreements. We have stated that a promise which
the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and
which does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the promise.8
Promissory estoppel, therefore, is based on a party’s detrimen-
tal reliance on another party’s promise that would otherwise
be an unenforceable contract.9 In this case, Synergy4 alleges
it incurred damages as a result of relying on Bradley’s oral
promises and assurances that a $1 million line of credit was
in place.
However, § 45-1,113 supersedes the common-law theory of
promissory estoppel insofar as it applies to unwritten credit
agreements or oral promises to loan money or extend credit.
The plain language of § 45-1,113 prohibits an action based
on a credit agreement unless the credit agreement is in writ-
ing. Our review finds no exception or limitation in the stat-
ute’s language.
This conclusion is supported by the broad language in the
definition of credit agreements, which includes any “contract,
promise, undertaking, offer, or commitment to loan money
or to grant or extend credit.”10 This precludes recovery for a
7
Zach v. Eacker, 271 Neb. 868, 716 N.W.2d 437 (2006).
8
Rosnick v. Dinsmore, 235 Neb. 738, 457 N.W.2d 793 (1990).
9
See id. (stating that promissory estoppel claim has traditionally been
used where to refuse promise unsupported by consideration would work
injustice to party who relied to his detriment on promise).
10
§ 45-1,112(1)(a)(i) (emphasis supplied).
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246 290 NEBRASKA REPORTS
credit agreement based on the promissory estoppel doctrine,
which is wholly dependent on reliance on a promise or assur-
ance. As a result, Synergy4 cannot maintain an action based
on the oral promises or commitments of Bradley that Pinnacle
would lend or extend credit of $1 million. Synergy4’s causes
of action are all based upon the unwritten credit agreement.
Our conclusion is supported by Fortress Systems, L.L.C. v.
Bank of West.11 In that case, the Eighth Circuit found that a loan
officer’s oral promise to lend money if the borrower settled its
lawsuit with investors did not satisfy § 45-1,113, because the
alleged promise was neither in writing nor signed by both par-
ties. The court held, “Nebraska’s statute of frauds for credit
agreements is broadly written to include any ‘contract, prom-
ise, undertaking, offer, or commitment to loan money or to
grant or extend credit.’”12
Our own jurisprudence reflects a reluctance to allow prom-
issory estoppel to sustain an action for unwritten contracts.
In Farmland Service Coop, Inc. v. Klein,13 a buyer sought to
enforce an oral agreement to sell 90,000 bushels of corn at a
set price. We determined that the buyer could not sue under the
theory of promissory estoppel to enforce the oral agreement
barred by the statute of frauds. We held:
The mere pleading of reliance on the contract to his
detriment should not be sufficient to permit a party to
assert rights and defenses based on a contract barred
by the statute of frauds. If he were permitted to do so,
the statute of frauds would be rendered meaningless
and nugatory.14
In Rosnick v. Dinsmore,15 we reiterated that promissory
estoppel could not be used to circumvent the protection pro-
vided by the statute of frauds.
11
Fortress Systems, L.L.C. v. Bank of West, 559 F.3d 848 (8th Cir. 2009).
12
Id. at 853 (emphasis in original).
13
Farmland Service Coop, Inc. v. Klein, 196 Neb. 538, 244 N.W.2d 86
(1976).
14
Id. at 543, 244 N.W.2d at 90.
15
Rosnick v. Dinsmore, supra note 8.
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We disagree with Synergy4’s assertion that the Legislature,
in failing to use the “‘complete bar’” language in § 45-1,113,
intended it to be coextensive with the general statute of frauds16
with all the common-law exceptions. However, even assuming
arguendo that the language did not explicitly bar such excep-
tions, it would be illogical for the Legislature to enact a sepa-
rate statute of frauds for credit agreements if the Legislature
had intended that it be coextensive with the general statute
of frauds.
We similarly conclude that § 45-1,113 bars Synergy4’s
claims for negligent misrepresentation. “Regardless of whether
the present cause of action is labeled as a breach of contract,
misrepresentation, fraud, deceit [or] promissory estoppel, its
substance is that of an action upon an agreement by a bank
to loan money. Therefore, [the credit agreement statute of
frauds] applies.”17
We find that because Synergy4’s claims are based on a
credit agreement that was not in writing, they are barred by
§ 45-1,113.
CONCLUSION
For the above reasons, we affirm the judgment of the dis-
trict court.
Affirmed.
Wright, J., participating on briefs.
Stephan and Miller-Lerman, JJ., not participating.
16
Brief for appellants at 10. See Neb. Rev. Stat. § 36-202 (Reissue 2008).
17
Ohio Valley Plastics v. Nat. City Bank, 687 N.E.2d 260, 263-64 (Ind. App.
1997).