Berg v. Torrington Livestock Cattle Co.

• Decision Date: 20 March 2012
• Docket Number: No. S–11–0229.,S–11–0229.
• Parties: Daren S. BERG and Jennifer A. Berg, Appellants (Defendants), v. TORRINGTON LIVESTOCK CATTLE COMPANY, a Wyoming Corporation, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2012 WY 42

272 P.3d 963

Daren S. BERG and Jennifer A. Berg, Appellants (Defendants),

v.TORRINGTON LIVESTOCK CATTLE COMPANY, a Wyoming Corporation, Appellee (Plaintiff).

No. S–11–0229.

Supreme Court of Wyoming.

March 20, 2012.

Representing Appellants: Daren S. Berg and Jennifer A. Berg, Pro se, Edgemont, SD.

Representing Appellee: Patrick J. Crank of Nicholas & Crank, P.C., Cheyenne, WY.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

HILL, Justice.

[¶ 1] Daren S. Berg and Jennifer A. Berg (the Bergs) filed this pro se appeal from summary judgment entered against them in an action to collect on a promissory note. Due to deficiencies in the filed appeal, we summarily affirm.

ISSUES

[¶ 2] Ten arguments are listed by the Bergs:

1. The district court erred in denying Bergs their preserved right to a jury trial.

2. The district court erred in holding that there was no breech [sic] of contract against Torrington Livestock Cattle Company.

3. The district court erred in holding secured collateral on a promissary [sic] note did not have to be apllied [sic] to the actual note.

4. The district court failed on all counts to prove or provide any evidence of the Bergs hindering or delaying Torrington Livestock Cattle Company.

5. The district court erred in allowing perjured statements.

6. The district court continiuosly [sic] proved they were biased against the Bergs and denied them of their Constitutional and Civil rights.

7. Does the district court have the authority to dictate where a business or individuals may conduct business or financial transactions?

8. The district court erred in its ruling on the bank security agreement.

9. Torrington Livestock Cattle Company has received $103,151.71 in payment on a bank note that only had a balance of $53,569.60. This was low value auction prices.

10. Gross negligence on behalf of the Goshen County Sheriff's department should be filed for the seizure and then losing Bergs' property. The department failed to provide accurate records and secure the property until it was sold.

FACTS

[¶ 3] This is the second of two related lawsuits filed by Torrington Livestock Cattle Company (TLCC). TLCC first filed suit against Mr. Berg and 4–B Livestock, owned by Daren and Jennifer Berg, in February of 2008. As the suit progressed, writs of garnishment and attachment were issued (and some property was sold), with Berg to receive credit against any judgment. A jury trial was held in December of 2010, in which Mr. Berg was found liable for breach of contract, conversion, and fraud. In January of 2011 the court entered judgment in favor of TLCC in the amount of $517,635.86, and in February of 2011 the court ordered Mr. Berg's previously seized property sold to satisfy the judgment. Funds held by the clerk of court were released to TLCC but the judgment remains unsatisfied. Mr. Berg appealed the judgment but his appeal was dismissed for want of prosecution.

[¶ 4] In February of 2010, while the first suit was pending, the Bergs signed a promissory note with the First Bank of Torrington. The Bergs promised to repay the principal sum of $53,569.60, at 8.25% interest, by four annual installments of $15,872.30. As collateral, the bank acquired security interests in a variety of the Bergs' property, including livestock and ranching equipment. In June of 2010 the bank assigned the promissory note to TLCC.

[¶ 5] The first payment on the note was due on October 1, 2010, and in late September of 2010 the Bergs shipped cattle for auction, with the proceeds intended for the first payment. However, the proceeds check was encumbered by TLCC because it held the promissory note. Around that same time, writs for seizure of cattle and equipment were issued and the Bergs did not make the first payment.

[¶ 6] This action began on October 18, 2010 when TLCC filed its Complaint for Breach of Contract for Promissory Note and to Enforce Security Agreement. The Bergs claimed that the assignment of the note was fraudulent, and Mrs. Berg argued that her property interest was separate from that of her husband and thus not subject to seizure to satisfy the judgment. The Bergs claimed TLCC hindered them from making payment on the note and that TLCC should not be permitted to seize collateral secured by the note and also collect on the note.

[¶ 7] The court rejected the Bergs' argument, and ruled the assignment was valid even without their consent. Furthermore, the court ruled that Mrs. Berg had forfeited her separate estate protections by her voluntary fraudulent conduct—thus, her alleged “separate” property was subject to Mr. Berg's liabilities in the earlier case. The court also ruled that TLCC properly applied the proceeds from the sale of collateral secured by the promissory note to satisfy the judgment from the earlier case and that TLCC's seizure of the collateral did not provide the Bergs with an affirmative defense. Finally, the court ruled that no material issues of fact existed and TLCC was entitled to summary judgment. This appeal followed.

DISCUSSION

[¶ 8] Though ten issues are listed by the Bergs, the issues are best captured by TLCC: (1) Should the Court summarily affirm the trial court's decisions based on the Bergs' willful and total disregard to the Wyoming Rules of Appellate Procedure? (2) Did the trial court properly grant summary judgment to TLCC? (3) Did the trial court correctly deny the Bergs' jury trial demand? (4) Should other issues raised by the Bergs be disregarded because they are not supported with cogent argument or pertinent authority?

[¶ 9] As mentioned, TLCC raises a preliminary issue relating to the Bergs' failure to comply with the Wyoming Rules of Appellate Procedure and requests that we exercise our discretion pursuant to W.R.A.P. 1.03 and summarily affirm the trial court's decision.

[¶ 10] The decision whether to dismiss an appeal or summarily affirm a decision of the lower court based on the filing of a deficient brief pursuant to W.R.A.P. 1.03 is within the discretion of the appellate court. McElreath v. State of Wyoming, ex rel. Wyoming Workers' Compensation Div., 901 P.2d 1103, 1106 (Wyo.1995). Rule 1.03 provides:

The timely filing of a notice of appeal, which complies with Rule 2.07(a), is jurisdictional. The failure to comply with any other rule of appellate procedure, or any order of court, does not affect the validity of the appeal, but is ground only for such action as the appellate court deems appropriate, including but not limited to: refusal to consider the offending party's contentions; assessment of costs; dismissal; and affirmance.

[¶ 11] We exercised our discretion in Finch v. Pomeroy, 2006 WY 24, ¶ 2, 130 P.3d 437, 437–38 (Wyo.2006), where we noted:

Finch's Notice of Appeal does not comply with the requirements of [W.R.A.P.] 2.07. Finch's Notice of Appeal misnames the Wyoming Supreme Court as the Court of Appeals for the State of Wyoming. The Notice of Appeal does not contain all pleadings that assert a claim for relief in the appendix as required by the rule.

Finch's brief does not comply with the requirements of [W.R.A.P.] 7.01 as follows:

1. The title page does not identify the party filing the brief as required by [W.R.A.P.] 7.01(a)(2).

2. The title page does not identify the name, address, and telephone number of the attorney or pro se party preparing the brief as required by [W.R.A.P.] 7.01(a)(3);

3. A table of contents, with page references is not present as required by [W.R.A.P.] 7.01(b).

4. A table of cases alphabetically arranged (in one list or by jurisdiction), statutes and other authorities cited, with reference to pages where they appear is not present as required by [W.R.A.P.] 7.01(c).

5. A statement of the issues presented for review is not present as required by [W.R.A.P.] 7.01(d).

6. A statement of the case including the nature of the case, the course of proceedings, and the disposition in the trial court is not present as required by [W.R.A.P.] 7.01(e)(2).

7. A statement of the facts relevant to the issues presented for review with appropriate references to documents listed in the index of the...