Summary
applying Homier to a joint sales and financing agreement
Summary of this case from In re United Air Lines, Inc.Opinion
No. 95SC284
Decided April 22, 1996
Certiorari to the Colorado Court of Appeals
JUDGMENT AFFIRMED
Quiat, Schlueter, Mahoney Ross, P.C., Laurin D. Quiat, Denver, Colorado, Attorneys for Petitioners.
Parcel, Mauro, Hultin Spaanstra, P.C., Edward W. Stern, Laurie L. Korneffel, Denver, Colorado, Attorneys for Respondent.
We granted certiorari to review the court of appeals' decision in Univex International, Inc. v. Orix Credit Alliance, Inc., 902 P.2d 877 (Colo.App. 1995). The court of appeals held that the statute of frauds applicable to credit agreements, section 38-10-124(1)(a), 16A C.R.S. (1994 Supp.), precludes enforcement of an oral agreement to sell collateral which accompanies an oral purchase money credit agreement. We affirm.
I.
The petitioners, Univex International, Inc. and CPC, Inc., n/k/a Data Packaging Corporation (hereinafter referred to collectively as "Univex"), are manufacturers of packaging products. In January of 1991, representatives of Robert Rose, d/b/a Communications Packaging Corporation and Media Packaging, Inc. (hereinafter referred to collectively as "Rose"), a company in competition with Univex, contacted Univex. Rose explained to Univex that Rose was experiencing severe financial problems which included being in default on equipment loans with Orix Credit Alliance, Inc. ("Orix") and First Interstate Bank. Rose suggested to Univex that Univex purchase the machinery which secured the Orix loan and the First Interstate Bank loan. Univex subsequently met with Orix to discuss the purchase of the machinery securing Orix's loan.
Orix and First Interstate Bank had separate security interests in different items of Rose's equipment.
The facts related to the First Interstate Bank loan will not be discussed here as that loan is not pertinent to the case before us.
On January 23, 1991, Univex and Orix negotiated for a transaction whereby Orix would acquire the machinery from Rose by voluntary repossession, and Univex would acquire the machinery from Orix for $221,647.03. Because Univex desired to finance through Orix the purchase of the machinery, Univex delivered to Orix financial statements and a check in the amount of $25,000.00 to serve as a deposit for the transaction. Subsequently, Univex and Orix representatives exchanged drafts of a security agreement, promissory note, and bill of sale.
However, during the first week of March 1991, before the sales documents were executed by Orix and Univex, Rose told Orix that it would not execute a voluntary foreclosure agreement. Instead, Rose procured a buyer who purchased Orix's security interest for the amount outstanding on the loan. Approximately two weeks later, Univex received the return of its $25,000.00 security deposit from Orix. At no time during this process did Univex and Orix reach a written agreement as to Univex's proposal for a financed purchase of the machinery.
In July of 1991, Univex filed suit against Orix and Rose in the Arapahoe County District Court, claiming breach of contract, promissory estoppel, fraud, conspiracy, conversion, trade defamation, accounting, interference with foreclosure, and interference with prospective business relations. Prior to trial, Rose filed for bankruptcy protection. Univex's claims against Rose were ultimately settled and Rose was dismissed from the case. Univex's claims against Orix for breach of contract and promissory estoppel proceeded toward trial. Prior to trial, Orix filed a motion for summary judgment as to both of Univex's claims, asserting that the oral sales agreement was void pursuant to the statute of frauds provision set forth in the Uniform Commercial Code (UCC). § 4-2-201, 2 C.R.S. (1992).
On July 28, 1993, the trial court entered its order granting summary judgment against Univex as to the claims of promissory estoppel and breach of contract. The trial court held that (1) the transaction between Univex and Orix was governed by Article 9 (Secured Transactions) and Article 2 (Sale of Goods) of the UCC; (2) Univex's breach of contract claim was barred by section 4-2-201 of the UCC; and (3) Univex's promissory estoppel claim must be dismissed because it was per se unreasonable for Univex to rely upon an unwritten agreement. On August 8, 1993, Univex filed a motion for reconsideration, on which the trial court did not rule. The motion was therefore deemed denied on October 8, 1993, pursuant to C.R.C.P. 59(j).
On appeal, the court of appeals affirmed the trial court order for summary judgment, but on grounds different from that on which the trial court relied. Instead, the court of appeals based its decision solely on its finding that any sales agreement between Univex and Orix was a credit agreement as defined by section 38-10-124(1)(a), 16A C.R.S. (1994 Supp.), and must therefore be in writing and signed by Orix. The court of appeals did not address the applicability of section 4-2-201 of the UCC statute of frauds to this case.
II.
Univex contends that section 4-2-201, with its lenient statute of frauds provisions, applies to the negotiations between Univex and Orix. Univex also argues that section 38-10-124, 16A C.R.S. (1994 Supp.), does not preclude enforcement of an oral agreement to sell assets which is accompanied by an oral purchase money credit agreement. We reject both these contentions and affirm the court of appeals.
A.
The court of appeals relied solely on section 38-10-124 in concluding that Univex was barred from enforcing the oral credit agreement between Univex and Orix. The court of appeals did not address the question of whether section 4-2-201, the statute of frauds applicable to sales generally, applies to the negotiations between Univex and Orix. Univex now argues that the court of appeals erroneously relied on section 38-10-124 in its holding because section 4-2-201 governs this case.
The UCC statute of frauds applicable to sales provides that if the parties are merchants, a confirmatory memorandum will satisfy the requirement of a writing unless the receiving party timely objects. § 4-2-201(1),(2), 2 C.R.S. (1992). Furthermore, the UCC statute of frauds allows enforcement of oral agreements where promissory estoppel is asserted. § 4-1-103, 2 C.R.S. (1992). Thus, the UCC statute of frauds applicable to sales provides Univex the potential ability to enforce its negotiations with Orix.
In Colorado, Article 2 of the UCC has been applied to only a limited number of cases, all of which have involved simple sales of goods not including credit transactions. See, e.g., Colorado-Kansas Grain Co. v. Reifschneider, 817 P.2d 637 (Colo.App. 1991) (sale of corn with no additional credit transactions); Lockhart v. Elm, 736 P.2d 429 (Colo.App. 1987) (sale of apparel with no credit transactions); Colorado Carpet Installation, Inc. v. Palermo, 668 P.2d 1384 (Colo. 1983) (sale and installation of carpet). Additionally, under Colorado law, a contract cannot be severed unless the language of the contract manifests each party's intent to treat the contract as divisible. Homier v. Faricy Truck Equip. Co., 784 P.2d 798, 801 (Colo.App. 1989); accord Prospero Assocs. v. Burroughs Corp., 714 F.2d 1022 (10th Cir. 1983) (holding that a bill of sale cannot be severed from an agreement where the language of the contract did not manifest an intent by the parties to form a severable contract). Accordingly, the transaction between Univex and Orix was not a simple sale of goods because it involved Univex financing the purchase of goods through Orix, a creditor. Also, contrary to Univex's assertion, the negotiations between Univex and Orix cannot be severed into two separate parts so that Univex may enforce the transaction as a simple sales agreement.
Because the transaction between Univex and Orix was not a simple sale of goods, we reject Univex's argument that section 4-2-201 is applicable to the transaction. We now turn to the question of whether the court of appeals properly determined that section 38-10-124 bars Univex from enforcing its oral agreement with Orix.
B.
The court of appeals held that section 38-10-124, the statute of frauds applicable to credit agreements, applies in this case and thus bars Univex's claim to enforce the oral credit agreement between Univex and Orix. We agree.
In construing statutory provisions, we should give effect to the intent of the legislature. PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 545 (Colo. 1995). We must look first to the statutory language itself, giving words and phrases their commonly accepted meaning. Id. Where the language of a statute is plain and the meaning is clear, we need not resort to interpretive rules of statutory construction, but must apply the statute as written. Id.
The legislature enacted the statute of frauds applicable to credit agreements in an effort to discourage lender liability litigation and to promote certainty in credit agreements. Norwest Bank Lakewood Nat'l Ass'n v. GCC Partnership, 886 P.2d 299, 301 (Colo.App. 1994). The statute defines a credit agreement as:
A contract, promise, undertaking, offer, or commitment to lend, borrow, repay, or forbear repayment of money, to otherwise extend or receive credit, or to make any other financial accommodation.
§ 38-10-124(1)(a)(I), 16A C.R.S. (1994 Supp.). This statutory definition of a credit agreement is broadly applied to credit agreements that also serve as an instrument for the sale of assets. See, e.g., Pima Fin. Servs. Corp. v. Selby, 820 P.2d 1124 (Colo.App. 1991). Moreover, section 38-10-124(2), 16A C.R.S. (1994 Supp.), bars any "action or claim relating to a credit agreement" which involves a principal amount of more than $25,000.00 unless it is in writing and signed by the party against whom enforcement is sought. (Emphasis added.) As the plain language of the statute indicates, section 38-10-124 does not apply only to claims involving transactions which are characterized exclusively as credit agreements, but also applies to claims which merely relate to credit agreements involving a principal amount exceeding $25,000.00. Unlike section 4-2-201, section 38-10-124(3), 16A C.R.S. (1994 Supp.), specifically provides that credit agreements may not be implied under any circumstances, including by promissory estoppel.
The requirements of § 38-10-124 only apply to creditors who are financial institutions. § 38-10-124(1)(b), 16A C.R.S. (1994 Supp). Orix is a financial institution and thus is subject to this statute.
In the case before us, section 38-10-124 applies rather than section 4-2-201 because the alleged agreement at issue related to a credit agreement, as supported by the record. Application of section 38-10-124 in this case promotes the legislative intent of discouraging lender liability litigation in these kinds of circumstances. Here, Orix and Univex were negotiating for financing that would enable Univex to purchase goods from Orix. The transaction between Orix and Univex was thus a credit agreement, as is broadly defined by section 38-10-124(1)(a)(I). Furthermore, Orix and Univex were negotiating for a credit agreement with a principal amount of well over $25,000.00. The transaction between Orix and Univex is therefore subject to the statute's unambiguous requirement that credit agreements be in writing and signed by the party against whom enforcement is sought. However, any agreement between Orix and Univex was merely verbal and Orix did not sign any credit agreement with Univex. Thus, in applying the plain language of section 38-10-124, we conclude that the credit agreement between Univex and Orix did not meet the statutory requirements and cannot be enforced.
It is undisputed in the record that the alleged oral agreement between Univex and Orix included a credit agreement. Univex, in its complaint, admits that the oral agreement between the parties included financing of the proposed sale. Plaintiff's Complaint ¶ 20.
Additionally, the trial court stated that its order granting Orix's motion for summary judgment was based on its "review of all the briefs and exhibits" in this case. Tr. Ct. Order, July 28, 1993. The exhibits in this case include a draft of a promissory note which delineates financing terms for a credit agreement, as well as several other documents exchanged by the parties which evidence that the parties contemplated a credit agreement.
III.
For the foregoing reasons, we hold that section 38-10-124 applies to the alleged agreement between Univex and Orix, thereby precluding Univex from enforcing the parties' oral agreement to sell collateral accompanied by an oral purchase money credit agreement. We therefore affirm the court of appeals and find that the trial court's summary judgment against Univex was proper.
JUSTICE KIRSHBAUM dissents, and JUSTICE LOHR joins in the dissent.