Anderson v. Foothill Industrial Bank, 83-80

Citation674 P.2d 232
Decision Date05 January 1984
Docket NumberNo. 83-80,83-80
PartiesGlen M. ANDERSON and Marlene B. Anderson, Appellants (Plaintiffs), v. FOOTHILL INDUSTRIAL BANK, a Colorado financial organization, and Robert Stevens, a Colorado resident, Appellees (Defendants).
CourtUnited States State Supreme Court of Wyoming

Kenneth R. Marken, Casper, for appellants.

J.N. Murdock and W.W. Reeves, Vlastos, Reeves, Murdock & Brooks, Casper, for appellees.

Before ROONEY, C.J., THOMAS, ROSE and BROWN, JJ., and RAPER, J., Ret.

ROONEY, Chief Justice.

In an action against appellees, appellants sought the following relief: (1) return of all principal and loan finance charges (totaling $31,512.28) paid by appellants to appellee Foothill Industrial Bank to retire a loan; (2) refund of excess amount paid on prepayment of said loan ($1,449.68) plus a penalty of not more than the loan finance charge, by virtue of appellee Foothill Industrial Bank's failure to make such a refund within a reasonable time after demand; (3) statutory penalty damages ($1,000.00) for various violations of federal and state disclosure laws; and (4) attorney fees.

Appellants appeal from a judgment rendered on a jury verdict which awarded them damages in the amount of $2,032.36 against which the trial court offset appellees' costs for failure on the part of appellants to accept appellees' prior offer of judgment, 1 leaving a net judgment of only $1,186.36. Error is alleged in assessment of damages, inadequate damages resulting from passion and prejudice and/or misleading instructions; error in awarding costs to appellees and denying costs and attorney fees to appellants; and error in granting appellees' motion for directed verdict on appellants' cause of action in deceit.

We affirm.

In early September of 1980, appellants contracted with the United States Postal Service to deliver mail on a route from Casper to Rawlins, Wyoming, starting on or about September 20, 1980. In order to fulfill this contract, appellants needed a loan to purchase a truck to be used in the mail route, and a trailer home for appellant Glen Anderson to stay in overnight in Rawlins. Appellants discussed their finances with various financial institutions in Casper, and ultimately arranged with appellee Foothill Industrial Bank to borrow $27,500.00. The proceeds of this loan were used to satisfy a previous second mortgage on appellants' residence in the amount of $14,882.26, to lease and operate a truck and a trailer for use in the mail-delivery route and for start-up expenses. Approximately five months later, appellant refinanced the loan with another financial institution to acquire funding for a replacement truck, and in the process of refinancing and prepaying the original loan to appellee Foothill Industrial Bank, this lawsuit arose.

Appellants alleged at trial that appellee Foothill Industrial Bank had failed to comply with Wyoming's Uniform Consumer Credit Code (U.C.C.C.) 2 and the federal Truth-in-Lending Act by failing to have authorization from the Wyoming State Examiner's office to make supervised loans, by assessing an unlawfully high amount of accrued interest charges upon prepayment of the loan, by serving appellants with a deficient disclosure statement upon the making of the loan, by charging them an unlawful amount of finance charges, and by misrepresenting the annual percentage rate of the loan.

These allegations of appellants are premised on the fact of the loan being a consumer loan and not a commercial loan. The U.C.C.C. applies only to consumer loans and not to commercial loans. A consumer loan is defined in § 40-14-304, W.S.1977, as follows:

"(a) Except with respect to a loan primarily secured by an interest in land (section 3-105 [§ 40-14-305], 'consumer loan' is a loan made by a person regularly engaged in the business of making loans in which:

"(i) The debtor is a person other than an organization;

"(ii) The debt is incurred primarily for a personal, family, household or agricultural purpose;

"(iii) Whether the debt is payable in installments or a loan finance charge is made; and

"(iv) Either the principal does not exceed twenty-five thousand dollars ($25,000.00) or the debt is secured by an interest in land."

Before determining the nature of this loan as a consumer or commercial loan, the manner in which we consider the evidence is pertinent. We have often recognized the proposition as stated in Distad v. Cubin, Wyo., 633 P.2d 167, 180 (1981):

" * * * On appeal we assume the evidence in favor of the successful party is true and leave out of consideration entirely the evidence presented by the unsuccessful party in conflict therewith, and we give the evidence of the successful party every reasonable inference that may be reasonably drawn from it. * * * " Citing, Brittain v. Booth, Wyo., 601 P.2d 532 (1979).

Appellants seem to contend that the proposition should be applied to acceptance, etc., of the evidence in their favor since the verdict awarded damages in their favor, albeit only in a small fractional amount of that requested. However, inasmuch as appellants, through their appeal, assert that the judgment was adverse to their entitlement, they are not the prevailing party. We said in Louth v. Kaser, Wyo., 405 P.2d 276, 278 (1965):

"Appellant contends that under previous holding of this court we must assume the evidence in favor of Louth is true, leaving out of consideration entirely the evidence of the Kasers in conflict therewith and give Louth's evidence every favorable inference which may be reasonably and fairly drawn, referring us to Willis v. Willis, 48 Wyo. 403, 49 P.2d 670, rehearing denied 49 Wyo. 296, 54 P.2d 814. But appellant mistakes Louth's position in this appeal. Here Louth in this appeal is asking this court for additur, the effect of which is to contend the award of $600 to Louth was adverse to his entitlement. This places Louth in the position of a defeated and unsuccessful party. Therefore, we must consider only the evidence most favorable to the Kasers in passing upon the correctness of the jury's verdict and the court's judgment."

With reference to the judgment, we have held that:

" * * * In addition to the facts specially found, the trial court is assumed to have found those consistent facts which support the judgment, and the trial court's findings are entitled to benefit of all reasonable inferences in support thereof. Hanna State & Savings Bank v. Matson, 53 Wyo. 1, 77 P.2d 621 (1938); Seibel v. Bath, 5 Wyo. 409, 40 P. 756 (1895)." Starrett v. Shepard, Wyo., 606 P.2d 1247, 1249 (1980).

Considering the evidence in this case in accordance with the foregoing, we find that it established the loan to be a commercial loan and not a consumer loan as a matter of fact. Appellant Glen Anderson inquired of three lendors in an attempt to secure the money for his mail route business. He told the loan officer at Person-to- Person that the money was to be used to "buy a mail route." At First Wyoming Bank, he said that it was to be used to operate a truck or otherwise engage in the mail route. He told the representative of appellee Foothill Industrial Bank that it was for a down payment on a truck and for start-up expenses. He did not require a loan until he decided to go into the mail route business. The debt was not "incurred primarily for a personal, family, household * * * purpose" as required by § 40-14-304, W.S.1977, supra. Although part of the proceeds of the loan were used to pay off that due on a second mortgage on appellants' residence, the testimony was that prudent lending practice would require such pay off with transfer of the collateral if the loan were made for the purpose of financing another enterprise. The thrust of all of the evidence was that the debt was "incurred primarily " for the purpose of entering a mail route business and not for a personal, family or household purpose. It was not a consumer loan.

Turning, then, to the issues as framed by appellants:

DID THE JURY AND/OR THE TRIAL COURT ERR IN THE ASSESSMENT OF APPELLANTS' DAMAGES?

Appellants' argument relative to this issue is premised on the assumption that the loan was a consumer loan and that the amount of damages allowed by the jury was inconsistent therewith. Appellants consider themselves as the prevailing party in making this assumption and conclude that the jury award of some money carries with it the assumption that the jury found the loan to be a consumer loan. As noted, supra, appellants were not the prevailing party and the assumptions are to the contrary.

Appellants argue that the award of damages to them was inconsistent with a jury finding that the loan was not a consumer loan. Before appellate relief can be sought on this basis, the contentions must be brought to the attention of the trial court before the jury is discharged. Appellants did not do so. It is a well established proposition in this state that any objection to a claimed inconsistency of a jury verdict must be objected to before the jury is discharged, so that the jury can be further instructed and can correct any deficiencies. Crown Cork & Seal Company, Inc. v. Admiral Beverage Corp., Wyo., 638 P.2d 1272, 1274 (1982); Pure Gas and Chemical Company v. Cook, Wyo., 526 P.2d 986, 988-989 (1974); Smith v. Blair, Wyo., 521 P.2d 581 (1974); DeWitty v. Decker, Wyo., 383 P.2d 734, 738-740 (1963).

As we said in DeWitty, at 739-740:

" * * * [W]e do not think it harsh or unreasonable to require a litigant, when an opportunity is afforded during the trial, timely to bring a matter such as here to the attention of the trial court in order that it might be corrected, and failing in this that he shall not be heard here to complain. To hold otherwise would seem unfair to the jury, to the trial court, and to the other litigants, to say nothing of the unnecessary loss of time and expense."

The inconsistency in the verdict, if there is one, could also have been attacked by appellees. They could...

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