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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1927-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
BANK ONE, GREEN BAY,
Plaintiff-Respondent,
v.
D&J PARTNERSHIP
and
DANIEL R. ANGOTTI,
JR.,
Defendants,
MICHAEL J. STEPHANI
and
JANICE M. STEPHANI,
Defendants-Third Party
Plaintiffs-Appellants,
v.
DARLENE ANGOTTI,
Third Party Defendant.
APPEAL from a judgment
of the circuit court for Brown County:
N. PATRICK CROOKS, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Michael and Janice Stephani appeal a summary judgment
awarding Bank One, Green Bay, $189,255.80 on a debt incurred by D&J
Partnership and guaranteed by the Stephanis.[1] The judgment foreclosed a lien on a
certificate of deposit pledged by the Stephanis. They argue that the Partnership's inventory, livestock, was the
primary collateral for the loan and, because the bank failed to perfect its
security interest in the livestock, the bank should lose its right to recover
from the guarantors. We reject this
argument and affirm the judgment.
Michael Stephani and
Daniel Angotti formed D&J Partnership whose purpose was acquiring, owning
and selling cattle. The Partnership
received two loans totaling approximately $163,000 from Bank One. Payment on the first $150,000 loan was due
on demand. On the same date that loan
was made, the Stephanis executed and delivered to the bank an unlimited
continuing guarantee of all "debts, obligations and liabilities of every
kind and description, whether of the same or a different nature, arising out of
a credit previously granted, credit contemporaneously granted or credit granted
in the future" by Bank One to the Partnership. The Stephanis also executed and delivered to the bank a
collateral pledge agreement in which they pledged as collateral on the loans
made by Bank One to the Partnership "all Lender deposit accounts, certificates
of deposit, repurchase agreements and money market instruments ... up to a
maximum market value amount of $150,000."
Four years later, the
Partnership borrowed an additional $13,073.68 from Bank One. Payment on this note was due June 1,
1995. On June 2, 1995, the bank
demanded payment in full on both notes.
When the Partnership failed to repay the loan, the bank brought this
action to recover on the notes and foreclose on the collateral.
The bank was not
required to perfect its security interest in the livestock before seeking
recovery from the guarantors because the various notes, guarantees and
collateral pledge agreements do not contain that provision. Under the terms of these contracts, when the
Partnership failed to pay the amounts due within the time specified, the bank
was entitled to bring this action against Michael Stephani as a partner and
against Michael and Janice as guarantors.
The Stephanis argue that
summary judgment was not appropriate because there are outstanding issues of
material fact regarding the parties' intentions. They argue that it was their understanding that the bank was
obligated to perfect its security interest in the livestock and seek payment on
the Partnership debt from the Stephanis only if the proceeds from the sale of
the livestock failed to satisfy the Partnership debts. We disagree.
Michael Stephani's
affidavit states that "the understanding between Mr. Frost, on behalf of
Bank One, and D&J was that Bank One loans would be paid with the proceeds
from the sale of D&J cattle." When
the parties to a contract embody their agreement in writing and intend the
writing to be the final expression of their agreement, the terms of the writing
may not be varied or contradicted by parol evidence. In re Spring Valley Meats, Inc., 94 Wis.2d 600,
607, 288 N.W.2d 852, 855 (1980). The
unlimited continuing guarantee signed at the time of the original loan
specifically allowed the bank to "fail to perfect its security interest or
realize upon any security or collateral."
This provision is unambiguous and may not be contradicted by parol
evidence. Even if other writings are
considered, none of the written agreements or other writings embody Stephani's
statement regarding the bank's understanding.
As the trial court noted, Frost's letters indicate the bank's interest
in the Partnership cattle, but it cannot be interpreted to indicate that the
bank agreed to seek payment from the sale of the Partnership cattle before
seeking payment from the Stephanis. The
Stephanis' unilateral, undocumented expectations are immaterial in the face of
unambiguous written agreements. Because
the issues of fact raised in the Stephanis' affidavits are not material, the
trial court properly granted summary judgment.
See Hilkert v. Zimmer, 90 Wis.2d 340, 342, 280
N.W.2d 116, 117 (1979).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.