Cross v. Berg Lumber Co.

Decision Date20 July 2000
Docket NumberNo. 99-91.,99-91.
Citation7 P.3d 922
PartiesRichard CROSS, Appellant (Defendant), v. BERG LUMBER COMPANY, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: B.J. Baker of Brown, Drew & Massey, LLP, Casper, WY.

Representing Appellee: James A. Hardee, Douglas, WY.


LEHMAN, Chief Justice.

This case concerns a disputed piece of heavy machinery, a road grader. Berg Lumber Company sued Richard Cross for the tortious conversion of this grader and for replevin. After a bench trial, the district court awarded Berg damages in the amount of $83,400 and ordered that the grader be returned to Berg. Cross takes issue with the district court's application of the statute of limitations, findings of fact, and calculation of damages. Finding no error, we affirm.


Appellant raises three issues:

1. The conclusion of the District Court that the claim of Appellee Berg Lumber Company, Plaintiff below, was not barred by statute of limitations is incorrect as a matter of law and is subject to being corrected by the Supreme Court.
2. The conclusion of the Court at page 1 of the Decision Letter that Crail took the grader without Berg's permission is clearly erroneous, is contrary to both the pleadings and the evidence, and therefore the District Court should have ruled as to whether or not Berg is estopped from asserting ownership to the grader, based on the evidence presented.
3. The Court in awarding damages misapplied the law of damages of the State of Wyoming and made findings and conclusions contrary to both law and to the undisputed facts.

Appellee also discerns three issues:

1. Did the District Court properly determine that Plaintiff Berg Lumber Company's claim was not barred by the Statute of Limitations?
2. Did the District Court properly dispense with a consideration of Defendant's theory of estoppel when no facts were presented to support such a theory?
3. Did the District Court properly determine damages based upon the facts ascertained by the Court and the applicable law?


Because this case was decided after a bench trial, the factual findings of the judge are not entitled to the more limited review afforded a jury verdict. 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2585 at 730 (1971). "Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence." Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1176 (Wyo.1997).

The purpose of specific findings under Rule 52(a) is to inform the appellate court of the underlying facts supporting the trial court's conclusions of law and disposition of the issues. Lebsack v. Town of Torrington, 698 P.2d 1141, 1146 (Wyo.1985); Cline v. Sawyer, 600 P.2d 725, 730 (Wyo.1979); Whitefoot [v. Hanover Ins. Co.], 561 P.2d [717] at 720 [Wyo. 1977]. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Shores v. Lindsey, 591 P.2d 895, 899 (Wyo.1979); 9 Wright & Miller, [Federal Practice and Procedure: Civil], § 2585 at 729, 731. Deference is given to the opportunity of the trial court to assess the credibility of the witnesses. Shores, 591 P.2d at 899. Because this court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Shores, 591 P.2d at 899; 9 Wright & Miller, supra, § 2585 at 732-33. The appellant bears the burden of persuading the appellate court that the finding is erroneous. 9 Wright & Miller, supra, § 2585 at 729.
On appeal, findings of fact are not set aside unless clearly erroneous. Shores, 591 P.2d at 899; Whitefoot, 561 P.2d at 720; 9 Wright & Miller, supra, § 2585 at 729. The definitive test of when a finding is clearly erroneous was adopted by the United States Supreme Court in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 395, 68 S.Ct. at 542. See Citibank, N.A. v. Wells Fargo Asia Ltd., 495 U.S. 660, 670, 110 S.Ct. 2034, 2041, 109 L.Ed.2d 677 (1990),

cert. denied 505 U.S. 1204, 112 S.Ct. 2990, 120 L.Ed.2d 868 (1992) (reaffirming the United States Gypsum Co. test). Wyoming accepted this standard for Rule 52(a) in Shores, 591 P.2d at 899. Alternatively, a determination that a finding is against the great weight of the evidence means a finding will be set aside even if supported by substantial evidence. Rocky Mountain Turbines, Inc. v. 660 Syndicate, Inc., 623 P.2d 758, 762 (Wyo. 1981); Shores, 591 P.2d at 899; 9 Wright & Miller, supra, § 2585 at 735 n.10.

Conclusions of law made by the district court under Rule 52(a) are not binding upon this court and are reviewed de novo. Shores, 591 P.2d at 900; 9 Wright & Miller, supra, § 2588 at 752. "Findings of fact of the trial judge can also lose the insulation of the clearly erroneous standard if they are induced by an erroneous view of the law, United States v. United States Gypsum Co., 333 U.S. at 394, 68 S.Ct. at 541; and United States v. Richberg, 398 F.2d 523 ([5th Cir.] 1968), or contain factual and legal conclusions that reflect the application of an improper legal standard." Shores, 591 P.2d at 899-900.

Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538-39 (Wyo.1993).

Damages are findings of ultimate fact. In a jury trial, the "jury's determination of the amount of damages is inviolate absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, or other improper cause had invaded the trial." Coulthard v. Cossairt, 803 P.2d 86, 92 (Wyo.1990). But the standard of review after a bench trial is less deferential. "Damages, like apportionment of fault, are reviewed as fact and are not reversed unless clearly erroneous." S. Childress, A Standards of Review Primer: Federal Civil Appeals, 125 F.R.D. 319, 330 (1989),2 (citing Lincoln Nat'l Life Ins. Co. v. NCR Corp., 772 F.2d 315 (7th Cir.1985); NCH Corp. v. Broyles, 749 F.2d 247 (5th Cir.1985); Stern v. Satra Corp., 539 F.2d 1305 (2d Cir.1976)).


In 1989, Berg Lumber Company purchased a Caterpillar 120 motor grader for $19,700. Berg used the grader to push dirt and snow and for road construction, grading, and maintenance. In 1991, Berg moved the grader to its Casper sawmill. At that time, Berg also contracted with Joe Crail to deliver logs to the Casper sawmill.

In October or November, 1991, without Berg's knowledge or permission, Crail took the grader from Casper to Richard Cross' ranch in Converse County, where Crail used the grader to grade access roads to facilitate logging. Crail damaged Cross' property by knocking down gates, burying irrigation ditches, and marring roads. Crail also owed Cross $5,500.00 for logs that he had removed from the property. In November 1991, when he learned that Crail had taken the grader, George Berg telephoned Crail and requested its return. Crail promised to return it. The grader was not returned; and, in the spring of 1992, Berg again spoke with Crail. Crail said he had left the grader on the Taylor ranch and that he did not have the money to hire someone to bring it back. Berg then traveled to Douglas and to the Taylor ranch, where he was unable to find the grader.

Berg later learned that the grader was on the Cross ranch. He went there and saw it at Cross' shop, with the blade down and the wheels off. He spoke with Cross, who told him that he wanted to use the grader to repair the damage done by Crail. Berg agreed with this proposal "to make it right"—meaning that, if his contractor Crail had caused damage to Cross, he would let Cross use the grader to repair that damage. Berg told Cross that the grader's clutch might not be working smoothly. Cross said he would fix it so that he could use it. Berg acquiesced and told Cross he would pick up the grader when the damage was repaired.

During the summer of 1992, Berg sent a truck down from Montana to pick up the grader. Cross did not allow the driver to take the grader, saying he had not yet had time to repair the damage to his ranch. Berg allowed Cross to retain the grader to repair the damage. In 1993, Berg sent another truck to get the grader; but, for reasons not apparent from the record, the grader remained in Wyoming at that time. In June 1994, Berg again tried to reclaim his grader. Cross refused to allow Berg's employees onto his property to view the grader.

In the summer of 1996, Berg's agent called Cross to reclaim the grader. Cross answered this demand by claiming that the grader was gone—that someone had come with a truck and hauled it away. On September 4, 1996, Berg's agent reported this alleged theft to the Converse County Sheriff's Office. Another Berg employee hired an airplane to fly him over the Cross ranch. From this aerial vantage, he located the grader concealed in an area that was not visible from the public road. By and through counsel, Berg formally demanded return of the grader on October 9, 1996. This lawsuit was filed on January 5, 1998.

At trial, both George Berg and Richard Cross testified. Among the other witnesses were several who established various elements of damage, including a heavy equipment expert from Wyoming Machinery Company who testified that the grader had a monthly rental value of $2,500. After hearing all the evidence, the district court entered judgment for the plaintiff in the sum of $83,400 and issued a Writ of Replevin directing Cross to return the motor grader to Berg Lumber. This appeal timely followed.


Cross argues that the...

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