Bible v. First Nat. Bank of Rawlins

• Decision Date: 01 November 1973
• Docket Number: CA-CIV,No. 1,1
• Citation: 515 P.2d 351,21 Ariz.App. 54
• Parties: Paul BIBLE, Individually and Paul Bible and Marian A. Bible, husband and wife, Appellants, v. FIRST NATIONAL BANK OF RAWLINS, a national banking association; and First National Bank of Arizona, a national banking association, Appellees. 1938.
• Court: Arizona Court of Appeals

Page 351

515 P.2d 351

21 Ariz.App. 54

Paul BIBLE, Individually and Paul Bible and Marian A. Bible, husband and wife, Appellants, v. FIRST NATIONAL BANK OF RAWLINS, a national banking association; and First National Bank of Arizona, a national banking association, Appellees.

No. 1 CA-CIV 1938.

Court of Appeals of Arizona, Division 1, Department B.

Nov. 1, 1973.

Rehearing Denied Dec. 5, 1973.

Review Denied Jan. 8, 1974.

Simon & Jekel, Louis G. Jekel, Jr., Scottsdale, for appellants

Streich, Lang, Weeks, Cardon & French, by Dan M. Durrant, Phoenix, for appellees.

OPINION

JACOBSON, Chief Judge, Division 1.

The sole issue presented on this appeal is whether a disputed material issue of fact existed which would have precluded the trial court from rendering summary judgment.

Taking the facts presented to the trial court in the light most favorable to the party opposing the motion for summary judgment (appellant) it appears that on December 30, 1968, appellants-counter-plaintiffs, Paul Bible and Marian A. Bible, purchased a Chevrolet pickup truck in Rawlins, Wyoming. The purchase was financed through appellee, First National Bank of Rawlins, which secured the repayment by a lien on the pickup truck.

In September, 1969, the Bibles became delinquent in their debt obligation and the First National Bank of Rawlins contacted appellee First National Bank of Arizona requesting aid in protecting its secured interest in the vehicle. On July 15, 1970, a representative of First National Bank of Arizona contacted Mr. Bible concerning the delinquency. As a result of this contact, First National Bank of Arizona employed Auto Recovery Bureau to repossess the pickup truck.

Auto Recovery Bureau is owned and operated by Arthur and Eileen Senerchia. They are compensated for their services in repossessing automobiles on an individual job basis, the normal fee being either $40 or $50. All equipment necessary to perform their services is supplied by the repossessor, the bank does not have a term contract utilizing their services (each job being separate employment) and the manner in which Senerichas perform their services is left entirely to their own discretion. In particular, First National Bank of Arizona did not give any instructions concerning nor exercise any control over the performance of the repossession of the Bible vehicle. Auto Recovery Bureau has been in the business of repossessing automobiles for approximately 13 years. During this period of time they have performed approximately 9,000 repossessions which resulted in only two incidents where violence was threatened. No employee of Auto Recovery Bureau or any owner of a repossessed vehicle has ever been injured.

At approximately 3 a.m. on July 16, 1970, employees of Auto Recovery Bureau arrived at the Bible home to effect the repossession of the pickup truck. During the course of this repossession the Bibles were awakened and as a result of their attempt to halt the repossession, one of the repossessing team allegedly shouted an obscenity at Mrs. Bible. The shouting and hearing of this obscenity formed the basis of the appellants' counter-claim to the bank's action on its promissory not and their third party claim against Auto Recovery Bureau. Appellants were awarded judgment by default against Auto Recovery Bureau, but lost on the banks' motion for summary judgment as to their counter-claim. This appeal followed.

The issues framed in the trial court by the motion for summary judgment and the response thereto were:

(1) Was Auto Recovery Bureau an independent contractor or a servant of the bank?

(2) If Auto Recovery Bureau was an independent contractor, is the business of repossessing automobiles so inherently dangerous as to impose liability upon its employer regardless of its status?

These and only these issues were argued in the trial court by appellants as giving rise to disputed issues of fact which would preclude the granting of summary judgment. We point this out, for on appeal appellants raise the issue that a factual dispute exists as to an alleged waiver by the bank of its right to repossess the vehicle in question and the negligence of the bank in hiring an incompetent and financially irresponsible repossession agency (we note that any evidence as to the financial status of Auto Recovery Bureau is completely lacking in the record on this appeal). In addition, for the first time on appeal, appellants urge that the right to repossess automobiles is by statute (ARS § 44--3149) made a non-delegable duty so as to not relieve the banks from liability for acts performed in their behalf.

We decline to consider these additional issues on appeal and do so far two reasons. First, in responding to a motion for summary judgment it is the duty of counsel to bring to the attention of the trial court those portions of the record (in the absence of controverting affidavits) which will support his position that a disputed issue of material fact exists and the court is under no obligation to search the myriad pages of depositional testimony to find any disputed material fact issue which counsel has overlooked. Choisser v. State ex rel. Herman, 12 Ariz.App. 259, 469 P.2d 493 (1970); Pitzen's Wig Villa v. Pruitt, 11 Ariz.App. 332, 464 P.2d 652 (1970). Second, issues not presented to the trial court will not be considered for the first time on appeal. National Car Rental v. Fox, 18 Ariz.App. 160, 500 P.2d 1148 (1972). For both of these salutary reasons, the court declines to consider these additional issues.

Both parties agree that any legal liability that may be imposed on the banks by reason of the harm inflicted by Auto Recovery Bureau, rests in the first instance on whether Auto Recovery Bureau is the servant of the banks or an independent contractor. Appell...