(dissenting).
I dissent.
I would reverse and remand for a trial because a genuine issue of material fact exists as to the terms and existence of an oral agreement to loan money.
As stated in State, Dept. of Revenue v. Thiewes:
“Certain guiding principles on the use of summary judgment have evolved. They are: (1) The evidence must be viewed most favorable to the nonmoving party; (2) The burden of proof is upon the mov-ant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (3) Though the purpose of the rule is to secure a just, speedy and inexpensive determination of the action, it was never intended to be used as a substitute for a court trial or for a trial by jury where any genuine issue of material fact exists. (4) A surmise that a party will not prevail upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them. (5) Summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the mov-ant.”
448 N.W.2d 1, 2 (S.D.1989) (quoting Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)).
Viewed properly in this light, it appears that there is a bona fide dispute over the existence and terms of the oral agreement to loan this money. This is obvious from a review of Werner’s testimony and the records of the Bank, which include the Bank’s comments to the loan file and the fact that the Bank obtained a security agreement to cover future loans.1
In reviewing a grant of summary judgment, we are not bound by the trial court’s factual findings and must conduct an independent review of the record. Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 499 (S.D.1990); Koeniguer v. Eckrich, 422 N.W.2d 600, 601 (S.D.1988).
Q: Well, what did you — what was your understanding when Rick Brady said, “Norwest can handle it”? Did you think you had a commitment from them to lend you however much money you needed?
A: I thought it was — I thought we had it all settled.
Q: So the answer is—
A: I didn’t know otherwise until much later.
Q: So the answer is “Yes”?
A: As far as — with Rick Brady and myself, I felt that we did.
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Q: And the way that was done, let’s review that, okay. They set up a $15,-000 note, didn’t they?
A: I think so.
Q: And they made advances under that note—
A: Right.
Q: —correct?
That’s the way the bank, in your experience, always handled loans to you, isn’t that true?
A: You mean this particular bank?
*144Q: Yes.
A: Not all the time. We didn’t always do that.
Q: Can you give me one example when they handled it different than that?
A: Yeah.
Q: Tell me when.
A: When we was getting ready for the third order of Zondervan’s in ’82, in June.
Q: When in ’82?
A: Yeah, June of 1982. There’s a security agreement on the 15th of June. After that we were going to buy some equipment from a company that was closing down here in Rapid City, Wave Manufacturing, and we needed the extra equipment to help take care of this order, so we purchased that.
Rather than pay the interest on a note or underneath a security agreement or something like that, Rick Brady says, “That doesn’t make much sense. We’ll just run — whenever you get ready and they get ready up here to close that thing down” — they weren’t quite sure what date that was going to be — “just write that check,” which would make an overdraft, and at that time he would — they would cover them down there and then we would make the loan; that would save that much interest. So that wasn’t — that may be one example how we would do something.
Werner alleges that he purchased equipment necessary to fill the third order of Zondervan’s (P03) “because of the specific promise” that the Bank would loan him the needed capital. “If these allegations were established at trial, it would not be unreasonable for the trier of fact to conclude that the parties entered into a definite ... contract ... [and Werner] should have the opportunity to prove at trial the existence of a contract” to provide a commercial loan. Larson v. Kreiser’s Inc., 427 N.W.2d 833, 834 (S.D.1988).
With questions of fact, doubts must be resolved against the Bank as the moving party. The Bank has failed to establish that there is NO genuine issue of material fact. The trial court’s decision is contrary to recent summary judgment law in South Dakota, especially State, Dept. of Revenue v. Thiewes, 448 N.W.2d 1 (S.D.1989), a unanimous opinion written by Justice Henderson where we reversed the trial court because the moving party failed to sustain its burden that there were no genuine issues of material fact. Where reasonable persons might reach different conclusions, summary judgment should be denied. Dahl v. Sittner, 429 N.W.2d 458, 461 (S.D.1988) (citation omitted).
No one is entitled to summary judgment unless entitled thereto as a matter of law and there are no genuine issues of material fact. SDCL 15-6-56(c). Here, the trial court incorrectly placed the burden upon the non-moving party instead of upon the moving party, the Bank. For all of the above reasons and all of the well-reasoned summary judgment cases in South Dakota, summary judgment was improper. {See Wilson v. Great N. Ry. Co. and its progeny.)
Lamp v. First Nat’l Bank, 496 N.W.2d 581, 585 (S.D.1993). Here too, “the moving party failed to sustain its burden that there were no genuine issues of material fact” and “the trial court incorrectly placed the burden upon the non-moving party instead of upon the moving party, the Bank.” Id. We should reverse and remand for a trial in accordance with SDCL 15-6-56(c), Thiewes, 448 N.W.2d 1 and Wilson, 83 S.D. 207, 157 N.W.2d 19.2
. See Deposition Exhibit #3 (Security Agreement). Under the terms of the Security Agreement dated June 15, 1982, Werner granted First National Bank (Norwest) a security interest (in inventory, equipment, accounts, contract rights and other rights to payment) "[t]o secure the payment and performance of each and every debt, liability and obligation of every type and description which Debtor may now or at any time hereafter owe to Secured Party (whether such debt, liability or obligation now exists or is hereafter created or incurred [.) ]” (Emphasis added.)
. According to the majority opinion, "the possibility of an implied contract must be deemed waived” because Werner never argues for an implied contract. Once again " 'this court is overreacting to SDCL 15-26A-60 which results in decisions that rely too heavily on waiver of a point or argument by failure to cite authorities.’ Corbly v. Matheson, 335 N.W.2d 347 (S.D.1983), *145and its progeny should not be stretched beyond all reasonable contemplation.” Larson, 427 N.W.2d at 835 (Sabers, J., concurring in part and dissenting in part). Werner’s denomination of the issues, arguments and citations, including Larson, are sufficiently broad to include implied contract. Id. (Morgan, J., concurring in part and dissenting in part); Id. (Sabers, J., concurring in part and dissenting in part).