FOR PUBLICATION
ATTORNEYS FOR APPELLANTS
: ATTORNEYS FOR APPELLEE:
GENE R. LEEUW THOMAS W. FARLOW
JOHN M. MEAD JULIA BLACKWELL GELINAS
Leeuw Oberlies & Campbell, P.C. LUCY R. DOLLENS
Indianapolis, Indiana Locke Reynolds LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CWE CONCRETE CONSTRUCTION, INC., )
d/b/a ELBRECHT CONCRETE, and )
CHRISTOPHER ELBRECHT, )
)
Appellants-Defendants, )
)
vs. ) No. 29A02-0311-CV-978
)
FIRST NATIONAL BANK, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven R. Nation, Judge
Cause No. 29D01-0203-CC-175
September 10, 2004
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
CWE Concrete Construction, Inc. d/b/a Elbrecht Concrete and Christopher Elbrecht (collectively, Elbrecht) appeal
the trial courts grant of summary judgment in favor of First National Bank
(FNB), raising several issues, one of which we find dispositive: whether Elbrechts
revolving line of credit had a borrowing base. Because we find that
the revolving line of credit did not have a borrowing base, we conclude
that Elbrecht was not in default at the time that FNB froze its
bank account, accelerated its other loans, and filed its complaint. Consequently, we
find that the trial court erred by granting summary judgment in favor of
FNB and reverse and remand for further proceedings.
Facts and Procedural History
On December 30, 1999, Elbrecht executed a promissory note for a $1.5 million
revolving credit line with Harrington Bank, FSB.
See footnote
The ADDITIONAL TERMS section of
the December 1999 Note advised that additional terms and requirements were contained in
a Letter Agreement dated December 10, 1999.
See footnote
The maturity date of the
December 1999 Note was September 30, 2000. On October 1, 2000, Elbrecht
executed a second promissory note, which renewed the December 1999 Notealthough with an
increased revolving credit line of $2 million. This renewal note was identified
as Loan No. 3980, Appellants App. p. 130, and provided, in pertinent part,
BACKGROUND. Borrower executed a promissory note payable to the order of Bank
dated December 30, 1999[,] . . . evidencing a loan . . .
which Note is further described as Note number 3980 in the principal amount
of $1,500,000.00. Borrower has requested that this Note be renewed. Appellants
App. p. 130. The October 2000 Note also referred to the December
1999 Letter Agreement for additional terms and requirements. On September 26, 2000,
a loan commitment letter was sent to Elbrecht, which set forth a borrowing
base for the $2,000,000 revolving line of credit as follows:
Borrowing Base: Loan outstanding shall never exceed the lesser of the $2,000,000
or 75% of all eligible receivables. Eligible receivables are defined as non-bonded,
non-retainage receivables less than 90 days from invoice date.
Appellants App. p. 133. Through a series of promissory notes, the revolving
credit line designated as Loan No. 3980 was eventually increased to $2.6 million.
Accordingly, another commitment letter was sent to Elbrecht on May 1, 2001,
which specified: This will serve to amend the previous commitment letters as
follows: . . . . 2. The line of credit shall be
the lesser of $2,600,000 or the borrowing base. Appellants App. p. 78.
On September 30, 2001, Elbrecht executed another promissory note. The September
2001 Note, which had a maturity date of October 30, 2001, incorporated by
reference the additional terms and requirements contained in the May 1, 2001, commitment
letter. Elbrecht renewed the Note on October 30, 2001, and this Note,
in pertinent part, provided:
DATE AND PARTIES: The date of this Promissory Note . . .
is October 30, 2001. This Note evidences a loan
which includes all
extensions, renewals, modifications and substitutions . . . .
BACKGROUND: Borrower executed a promissory note payable to the order of Bank
dated September 30, 2001, . . . evidencing a loan . . .
which Note is further described as Note number 3980 in the principal amount
of $2,600,000.00. Borrower has requested that this Note be renewed.
. . . .
21. GENERAL PROVISIONS.
. . . .
D. INTEGRATION CLAUSE. This written Note and all documents executed concurrently herewith, represent
the entire understanding between the parties as to the Obligations and may not
be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the
parties.
Appellants App. p. 79-81 (emphasis supplied). This Note was scheduled to mature
on February 28, 2002. Unlike the previous notes for Loan No. 3980,
the October 2001 Note did not contain an ADDITIONAL TERMS section incorporating any
of the previous commitment letters.
In addition to the series of notes for Loan No. 3980, Elbrecht also
executed two other promissory notes with Harrington Bank. The first Noteexecuted by
Elbrecht on April 25, 2000was for $286,213.00 and due to mature on April
30, 2005. The second Noteexecuted by Elbrecht on March 28, 2001was for
$250,000.00 and due to mature on March 28, 2006.
In late January 2002, Elbrecht submitted a borrowing base calculation to FNBthe successor-in-interest
by merger to Harrington Bankfor the period ending January 25, 2002. This
report revealed that the outstanding balance of the loan$2,453,903exceeded the borrowing base by
$1,016,364. FNB afforded Elbrecht the opportunity to cure this default by either
decreasing the outstanding balance on the loan or pledging additional collateral. Elbrecht
did not cure the default; however, Elbrecht did deposit $1 million in its
FNB deposit account.
Because Loan No. 3980 was not in compliance with the borrowing base requirement
contained in the May 1, 2001, commitment letter, FNB determined that Elbrecht was
in default on the Note for that loan and exercised its remedy on
default of cross-defaulting and accelerating all of Elbrechts outstanding Notes with FNB.
FNB also froze Elbrechts deposit account, causing several checks to be dishonored.
Based on these circumstances, on February 21, 2002, Elbrecht informed FNB that it
would not or could not pay the outstanding balance on Loan No. 3980
when it became due and payable on February 28, 2002. The day
after receiving this information from Elbrecht, FNB filed a complaint to collect the
unpaid loan balances on all of Elbrechts outstanding loans with FNB, plus interest
and fees. In response, Elbrecht filed a counterclaim that FNB wrongfully set-off
Elbrechts account with FNB. FNB then filed a motion for summary judgment
on its complaint but not on Elbrechts counterclaim. Following the submission of
briefs and designated evidence and a hearing on the matter, the trial court
determined that the October 2001 Note contained a borrowing base requirement that Elbrecht
violated, thereby causing Elbrecht to be in default:
5. That each of the aforementioned Notes, pursuant to the language in the loans
heading, evidence a renewal of a loan from Harrington Bank, FSB. Further,
each Note contains language in paragraph 1 stating that this Note evidences a
loan which includes all extensions, renewals, modifications and substitutions. It is clear
from the language contained in each Note that the terms of the October
1, 2000 and September 30, 2001 Notes are incorporated into the terms of
the October 30, 2001 Note. As such, the borrowing base requirement referenced
in the Letter Agreements dated September 26, 2000 and May 1, 2001 is
a term of the October 30, 2001 Note.
6. [Elbrecht does] not dispute that [it was] in violation of the borrowing base
requirement. Therefore, as a matter of law, [Elbrecht was] in default of
the October 30, 2001 Note on February 19, 2002.
Appellants App. p. 23. Therefore, the trial court granted summary judgment in
favor of FNB on its complaint andfinding no just reason for delayentered final
judgment.
See footnote
Elbrecht now appeals.
Discussion and Decision
Elbrecht appeals the trial courts Order granting summary judgment in favor of FNB.
The dispute at hand arises out of the construction of a promissory
note. The parties and the trial court agree that the language of
the October 2001 Note is not ambiguous.
See Appellants App. p. 22
([T]he parties agree and the Court does now find that the terms of
the October 30, 2001[,] Note are not ambiguous[.]). When the language of
a written contract is not ambiguous, its meaning is a question of law
for which summary judgment is particularly appropriate. Exide Corp. v. Millwright Riggers,
Inc., 727 N.E.2d 473, 477 (Ind. Ct. App. 2000). The purpose of
summary judgment is to terminate litigation about which there can be no factual
dispute and which may be determined as a matter of law. Bushong
v. Williamson, 790 N.E.2d 467, 474 (Ind. 2003).
In reviewing a decision upon a summary judgment motion, we apply the same
standard as the trial court: summary judgment is appropriate if there is
no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C); see Fort
Wayne Lodge, LLC v. EHB Corp., 805 N.E.2d 876, 882 (Ind. Ct. App.
2004). The moving party bears the burden of showing prima facie that
there are no genuine issues of material fact and that it is entitled
to judgment as a matter of law; once this burden has been met,
the non-moving party must respond by setting forth specific facts demonstrating a genuine
need for trial and cannot rest upon the allegations or denials in the
pleadings. See Fort Wayne Lodge, LLC, 805 N.E.2d at 882.
On appeal, the trial courts order granting a motion for summary judgment is
cloaked with a presumption of validity. Sizemore v. Erie Ins. Exch., 789
N.E.2d 1037, 1038 (Ind. Ct. App. 2003). A party appealing from an
order granting summary judgment has the burden of persuading the appellate tribunal that
the decision was erroneous. Id. at 1038-39.
In arguing that the trial court erroneously granted summary judgment in favor of
FNB, Elbrecht claims that the October 30, 2001, Note did not have a
borrowing base requirement and therefore any subsequent default was precipitated by FNBs actions
of wrongfully freezing his bank account and accelerating all of Elbrechts outstanding loans
with FNB. All the arguments raised by the parties depend on whether
the October 2001 Note contained a borrowing base as part of its terms.
Thus, we begin and end our inquiry with this dispositive issue.
As mentioned previously, the parties agree that the October 2001 Note is unambiguous.
Generally, where no ambiguity is present the trial court is constrained by
the four corners rule, which provides:
[I]n construing [a] written instrument, the language of the instrument, if unambiguous, determines
the intent of the instrument such that parol or extrinsic evidence is inadmissible
to expand, vary, or explain the instrument unless there has been a showing
of fraud, mistake, ambiguity, illegality, duress or undue influence. Even if ambiguity
exists, extrinsic evidence is only admissible to explain the instrument and not contradict
it.
Adams v. Reinaker, 808 N.E.2d 192, 195 (Ind. Ct. App. 2004) (citing Clark
v. CSX Transp., Inc., 737 N.E.2d 752, 757-58 (Ind. Ct. App. 2000)).
Extrinsic evidence is evidence relating to a contract but not appearing on the
face of the contract because it comes from other sources, such as statements
between the parties or the circumstances surrounding the agreement. Blacks Law Dictionary
578 (7th ed. 1999).
The October 2001 Note does not contain a borrowing base requirement within its
four corners. Furthermore, unlike the previous Notes for Loan No. 3980, it
also does not incorporate a borrowing base requirement from any other source.
The October 2001 Note simply specified, the amount of advances under this Note
that are outstanding and unpaid shall never exceed the Principal. Appellants App.
p. 79. To the extent that FNB argues that Elbrechts submission of
a Borrowing Base Calculation for Period Ending January 25, 2002, Appellants App. p.
91, evidences that the October 2001 Note had a borrowing base, we reiterate
that extrinsic evidence may not be used when construing an unambiguous contract.
See Reinaker, 808 N.E.2d at 195.
Furthermore, we are unconvinced by FNBs argument that the terms and requirements found
within the commitment letters were incorporated into the October 2001 Note through the
use of the language, This Note evidences a loan which includes all extensions,
renewals, modifications and substitutions. First, the previous Notes contained this same language,
yet they still incorporated the borrowing base requirements found in commitment letters by
direct reference to those letters. If the quoted languagewithout moreincorporated the terms
found in the commitment letters, then the ADDITIONAL TERMS sections found in previous
renewal Notes would be meaningless and mere surplusage. See United Consulting Engrs
v. Bd. of Commrs of Hancock County, 810 N.E.2d 351, 354 (Ind. Ct.
App. 2004) (The contract must be read as a whole and the language
construed so as not to render any words, phrases, or terms ineffective or
meaningless.). Moreover, the insertion of the ADDITIONAL TERMS section in previous Notes
evidences that the Bank knew how to incorporate the borrowing base from an
outside source. In the October 2001 Note, however, the Bank did not
incorporate any additional terms from other sources. Rather, the ADDITIONAL TERMS section
was deleted entirely from the October 2001 Note.
Second, and more importantly, the October 2001 Note also contained an integration clause
that provided: This written Note and all documents executed concurrently herewith, represent the
entire understanding between the parties as to the Obligations and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties.
Appellants App. p. 81 (emphasis supplied). As explained previously, the October
2001 Note did not contain a borrowing base requirement within its four corners
or incorporate one by reference. Nor were there any other documents executed
concurrently with or subsequent to the October 2001 Note that specified that the
Note had a borrowing base term. Thus, there was no indication within
the entire agreement that the October 2001 Note had a borrowing base requirement
as one of its terms.
Because we find that the October 2001 Note did not specify or incorporate
a borrowing base, we find that the trial court erred in finding that
Elbrecht defaulted on the Note by exceeding the borrowing base and entering summary
judgment in favor of FNB. Moreover, because a question of fact remains
as to whether Elbrecht would have been able to satisfy his obligation under
the October 2001 Note when it became due had FNB not frozen the
$1 million Elbrecht deposited with FNB and accelerated the other loans, we remand
for further proceedings.
Reversed and remanded.
SULLIVAN, J., and MAY, J., concur.
Footnote:
FNB is the successor-in-interest by merger to Harrington Bank.
Footnote:
The December 1999 Letter Agreement is not contained in any of
the materials before us nor was it designated to the trial court.
This omission does not hinder our review, however, as subsequent commitment letters that
amended this Letter Agreement have been included for our review. These subsequent
commitment letters are referenced below.
Footnote:
Elbrechts counterclaim was not at issue during the summary judgment proceedings
underlying this appeal. Moreover, because the trial court found Elbrecht to be
in violation of the purported borrowing base requirement, the trial court did not
consider the other arguments of [FNB] alleging that [Elbrecht was] in default of
the October 30, 2001 Note, nor the other arguments of [Elbrecht]. Appellants
App. p. 24.