Edwards Petro, Inc. v. Midland Mortgage Co.

BACON, Judge,

dissenting.

The record presented on appeal convinces me that the trial court correctly entered summary judgment in favor of appellees.¹⁵

In early 1972, Edwards Petro, Inc., (Edwards), a truck stop operator that distributed Skelly Oil products, sought long-term financing to construct a truck stop in Oklahoma City, Oklahoma. Edwards contracted with Midland Mortgage Co., (MMC), a corn-pany that specializes in securing long-term financing, for its expertize in locating a long-term lender. A loan presentation was assembled and presented by MMC to State Farm Life Insurance Co., (State Farm), a company, which among other things, operates as a lender of large sums of money on a long-term basis to commercial borrowers. The security for the near $500,000 loan was a lease agreement between Edwards and Skelly whereby Skelly would enter into a 15 year lease with monthly rentals equal to principal and interest owed monthly on the loan. A lease back agreement provided that Edwards would be the actual operator of the truck stop. The loan proposal by MMC to State Farm contained a blank form of the lease.

State Farm replied to MMC that “the lease does not appear to be one that would present a great deal of problems to us and if you can work out a satisfactory interest rate, we would be willing to recommend this deal to committee.”

Later, Skelly submitted a second lease and sublease to Edwards. This new lease arrangement was forwarded to MMC who in turn sent it on to State Farm. State Farm reviewed the Skelly-Edwards sublease proposed by Skelly to Edwards and issued a permanent loan commitment to MMC subject to the meeting of certain loan conditions.¹⁶ MMC issued a “retread” of the commitment and loan conditions to Edwards.

When it became apparent to all parties that the loan conditions would not be met, because of Skelly’s refusal to modify the terms of the second lease, MMC and State Farm considered their commitments “dead” and returned to Edwards its “good faith” financial arrangement fees. The position of appellant, Edwards, will be discussed in relation to each party appellee.

To define the issue of a substantial controversy as to any material fact three questions must be asked concerning the allegations of breach of a commitment contract by promissory estoppel:

1. Does any substantial controversy as to a material issue of fact exist which if true would support a finding that Edwards complied with the condition precedent to the issuance of a permanent loan?

2. Does any substantial controversy as to a material issue of fact which if true constitute waiver of the condition precedent to issuance of a permanent loan?

3. Does any substantial controversy as to a material issue of fact exist which would give rise to estoppel?

Based upon my review of the record each should be answered in the negative.

I will first discuss the relationship of appellee, Midland Advisory Co., (MAC), to the commitment of long-term financing. After review of the pleadings, depositions and exhibits it is clear that MAC was not in any way involved in the procurement of the long-term loan. None of the communications, concerning the loan, even mention MAC. True, MAC was a party to interim construction lending but those funds were issued to appellant. Therefore, all contract obligations of MAC were met. The summary judgment on the issue of breach of contract by promissory estoppel, in MAC’s favor was proper.

As I view the foundational facts regarding Edwards, MMC and State Farm, they could be simply stated as follows:

1. Edwards contracted with MMC for aid in securing 100 percent financing of a construction project costing approximately $500,000.

2. MMC contacted State Farm with a loan proposal containing a lease from Edwards to Skelly wherein Skelly would pay a monthly rental equal to the monthly principal and interest payment of the loan.

3. State Farm commits to MMC that if MMC can arrange a satisfactory interest rate and obtain a net lease or bond type lease it would buy the mortgage.

4. MMC commits to Edwards on the same terms.

5. Skelly did not execute a lease meeting the requirements.

6. Service funds were returned to Edwards as conditions precedent could not be met.

The exhibits clearly reflect that State Farm from the beginning of negotiations with MMC insisted and demanded that the lease place all liabilities of the loan upon Skelly, via the Edwards-Skelly lease. The record reflects nothing upon which to base an inference of waiver of State Farm’s position. The lease requirement was not obtained, therefore, summary judgment in favor of State Farm was proper.

Edwards further argues that at the date of closing of the commitment letter, it inquired of MMC and MAC if it was all right to begin to let construction contracts and they replied that it was. Edwards was at that time aware that certain conditions precedent — the required lease — would have to be met before long-term financing would be secured. However, Edwards had just obtained interim construction financing from MMC and MAC. Edwards relied only upon the fact that MMC and MAC were providing interim construction financing and was well aware of the fact that it must meet the commitment requirements before the long-term financing would be issued. MMC did not, under the record, waive any of the conditions nor make any promise causing Edwards to act to its detriment.

Edwards lastly complains that the trial court erred by denying its oral motion to amend its petition to allege “civil conspiracy” upon the grounds of the statute of limitations. After the motions for summary judgment were sustained Edwards made a motion for a new trial wherein it stated:

“Plaintiff, [Edwards], respectfully moves the court to reconsider its Order Sustaining Defendants’ Motion for Summary Judgment in the above entitled cause and grant Plaintiff a new trial, by reason that the Court erred in sustaining said motions as a matter of law.”

However, no error was alleged as to the overruling of the motion to amend the petition.

Further, the petition in error reads:

(f) The precise points of law to be urged are that the order of the trial court sustaining Appellees’ Motions for Summary Judgment is contrary to law and is not sustained by the law or evidence and that the Appellant duly excepted to such rulings in due time, expecially with respect to the following rulings contained in said order, as follows:

* * * * * *

(h) The trial court’s denial of Appellant’s oral motion to amend its Petition to allege fully a cayse of action for “detrimental reliance” on the acts and words of MIDLAND MORTGAGE CO. was not in the furtherance of justice in this case inasmuch as the motion to amend the Petition was made before the trial of this case on its merits and was within the court’s discretion to allow, (emphasis added)

Examination of the journal entry of judgment reveals the following:

This matter comes on for hearing this 20th day of December, 1978, upon the Motions for Defendants, and each of them, for Summary Judgment as against Plaintiff. Plaintiff appears by counsel, Manville T. Buford; Defendant appears by counsel, Richard A. Procter. The Court having reviewed the files, exhibits and depositions on file herein and after hearing argument of counsel and upon considering the memorandums of law submitted, finds as follows:

That the oral motion of Plaintiff for leave to amend its Petition to allege fully a cause of action for “detrimental reliance” on the acts and words of Defendant Midland Mortgage Co. should be denied by reason that such amendment is barred by the Statutes of Limitation, (emphasis added)

Therefore, from the record it is clear that Edwards raises for the first time on appeal the issue of amendment of its petition to allege “civil conspiracy.” This it cannot do.

I would affirm the trial court in all respects.

15 . The Oklahoma Supreme Court in Weeks v. Wedgewood, Okl., 554 P.2d 780 (1976), and Runyon v. Reid, Okl., 510 P.2d 943 (1973), quoted with favor from Aktiengesellschaft Der Harlander, etc. v. Lawrence Walker Cotton, 60 N.M. 154, 288 P.2d 691 (1955), wherein it was said:

[T]he moving party has the burden of showing that there is no genuine issue as to a material fact and that he is entitled to judgment as a matter of law but . .. when he has made a prima facie showing to this effect the opposing party cannot defeat a motion for summary judgment and require a trial by a bare contention that an issue of fact exists. He must show that evidence is available which would justify a trial of the issue. When on the basis of established facts, the [defendant] is entitled to summary judgment as a matter of law, the [plaintiff] contending and arguing that there is a genuine issue of material fact cannot and will not make it so.

16 . A condition, that Skelly’s rental payments be equal to principal and interest owed monthly on the loan, was in fact abrogated by the sublease agreement between Skelly and Edwards. It provided that any sums owed by Edwards to Skelly would be deducted from Skelly’s monthly rental. True, Skelly later agreed to pay a higher rental but the new rate still remained subject to rental reduction by the sum, if any, owed by Edwards to Skelly. A lease wherein rentals are subject to reduction through a lease back agreement does not meet State Farm’s initial loan condition that Skelly, via main lease become primarily liable for the loan. When Skelly advised all parties that no further modification (except increased rental) would be forthcoming, the loan was declared dead because of failure to satisfy the condition precedent.

The death of the loan, did not come by legal assassination after a firm unconditional commitment, but came by natural causes because the antidote, meeting the required condition precedent, was not administered. The motive for declaring the loan dead bears no consequence because the record reveals no substantial controversy as to any material issue of fact that the loan’s death was induced by something other than natural causes.