Footville State Bank v. Harvell

Decision Date17 September 1987
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. FOOTVILLE STATE BANK and DAVID PETERSON d/b/a FOOTVILLE AGRI SERVICE, Plaintiffs-Respondents, v. MORRIS H. HARVELL and HENRY H. HARVELL, Defendants-Appellants. 86-0804.
CourtWisconsin Court of Appeals

Circuit Court, Rock County

Affirmed in part, reversed in part and cause remanded for further proceedings

Appeal from a judgment of the circuit court for Rock county: Mark J. Farnum, Judge.

Before GARTZKE, P.J., EICH, J. and SUNDBY, J.

SUNDBY, Judge.

Morris Harvell and Henry Harvell appeal from a judgment awarding the plaintiffs, Footville State Bank, and David Peterson doing business as Footville Agri Service, a sum equal to the purchase price of products and services provided by Agri Service to the Harvells under a consumer credit arrangement known as the Wisconsin Farm Plan. Because we conclude that the trial court erred in changing the jury's special verdict answers which found that the plaintiffs violated the Wisconsin Consumer Act ('WCA'), chs. 421-427, Stats., and the Federal Consumer Credit Protection Act ('FCCA'), 15 U.S.C. sec. 1601 et seq., with respect to sales and services charged to Morris Harvell, we reverse the judgment against Morris and direct the trial court to reinstate the jury's answers, determine the effect thereof, and enter judgment accordingly. We affirm the judgment against Henry.

I. BACKGROUND OF THE CASE

Morris Harvell operated two farms under separate agreements with his sons, Henry and Gus. In 1980 Morris's arrangement was that Gus, as farm manager, would be paid a salary and Morris would pay all of the bills for products and services necessary to operate the farm.

A few days prior to January 17, 1980 Gus signed an application provided by Agri Service for credit through the Wisconsin Farm Plan. At the same time he signed a separate application to establish credit for Morris under the Plan. Credit cards were issued by the bank in the names of Gus and Morris but were kept by Agri Service. When purchases were made, the credit cards were used to generate billings. The debt created was to the bank and the bank did the billing. The bank first billed Gus and Morris January 17, 1980. In 1980 Gus made purchases from Agri Service which were billed one-half to Gus and one-half to Morris and paid by them to the bank.

In 1981 Morris made a new arrangement with Gus to work the farm land 50/50. Gus made additional purchases from Agri Service, and the purchases were again charged one-half to Gus's account and one-half to Morris's account. In October 1981, Gus filed bankruptcy and received a discharge of the unpaid debt to the bank. This action does not involve Gus's liability to the bank.

Morris's pre-Farm Plan agreement with Henry regarding the operation of the second farm was that they would share expenses and profits from the farm equally. The usual practice was that the supplier of products or services purchased by Henry sent a bill for one-half of the cost directly to Morris. In the spring of 1981 Henry signed a Wisconsin Farm Plan application. In 1981 he made purchases from Agri Service which were charged one-half to Henry's Farm Plan account and one-half to the Farm Plan account Gus had established for Morris. No payments were made on these accounts.

After the trial court changed the jury's answers to find no violation of the WCA and the FCCA, judgment was entered in favor of the plaintiffs against Henry and Morris for the goods and services purchased from Agri Service and billed to them by the bank, with interest under the terms of the consumer contracts. Set off against these amounts were the damages the jury awarded Morris and Henry on their counterclaims against Agri Service for failure to perform.

II. CHANGING ANSWERS IN THE VERDICT: STANDARD OF REVIEW

The trial court changed the answers in the special verdict which found that the plaintiffs had violated the WCA and the FCCA in their credit dealings with Morris. Under sec. 805.14(5)(c), Stats., any party may move the trial court to change an answer in the verdict on the ground of insufficiency of the evidence to sustain the answer. The test for sufficiency of the evidence to support a verdict is found in sec. 805.14(1), which provides:

No motion challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party.

'If there is any credible evidence which under any reasonable view, fairly admits an inference that supports a jury's finding, neither the trial court nor this Court should change that finding.' Bastman v. Stettin Mutual Insurance Co., 92 Wis.2d 542, 548, 285 N.W.2d 626, 628 (1979).

Where the evidentiary facts are practically without dispute the crucial question is whether the facts reasonably support the jury's conclusion of ultimate fact drawn therefrom. Leatherman v. Garza, 39 Wis.2d 378, 386, 159 N.W.2d 18, 23 (1968).

While a jury finding against the clear preponderance of the evidence, presents a case for consideration by the trial judge within his discretionary right to grant a new trial, he is not required to do so, nor to change the finding to accord with the greater evidentiary weight. The latter is proper only when the evidence is so convincing as to leave no room, in any reasonable view, for conflicting inferences. In that situation the real truth of the matter appears as a matter of law, leaving no legitimate jury question.

Id. at 387, 159 N.W.2d at 23, quoting Behling v. Wisconsin Bridge & Iron Co., 1 58 Wis. 584, 589, 149 N.W. 484, 486 (1914). We give great weight to a trial co urt's decision that a verdict must be changed as a matter of law. Leatherman, 39 Wis.2d at 387, 159 N.W.2d at 23.

III. WISCONSIN CONSUMER ACT

We first consider the trial court's change of the jury's answers that the bank and Agri Service violated the WCA in their credit dealings with Morris. Morris contends that they violated the WCA in several respects in failing to make disclosure to him as required by the Act. He also contends that the plaintiffs violated the Wis. Adm. Code, sec. Bkg 80, to which he refers us to interpret the disclosure requirements to an obligor required by sec. 422.305, Stats. Morris acknowledges that the instructions to the jury as to the WCA were very limited. He argues however that the jury could have found that the plaintiffs violated provisions of ch. 422 and administrative regulations as to which the jury was not instructed, because those provisions were read to the jury in Morris's closing argument and the court was aware at the time it instructed the jury that other sections of the WCA would be read and argued to the jury. Morris points out that the plaintiffs did not object to his closing argument to the jury.

Only the court can instruct the jury as to the law. Boltz v. The Town of Sullivan, 101 Wis. 608, 616, 77 N.W. 870, 873 (1899) ('The law applicable to the case is to be pronounced by the trial court . . .'). Our review of the sufficiency of the evidence must be limited to the court's instructions to the jury. See Barkow v. Sanger, 47 Wis. 500, 509, 3 N.W. 16, 23 (1879) (jury's verdict to be examined in reference to the instructions given). The fact that the trial court in its memorandum decision considered provisions of ch. 422, Stats., and administrative regulations of the banking commissioner as to which the jury was not instructed cannot expand our scope of review.

As to Morris's claim that the trial court was aware that he intended to read to the jury other sections of the WCA, he does not state how the trial court knew this. The jury instructions conference reveals that Morris's counsel told the trial court that he intended to read to the jury sections of the statutes and regulations pertaining to bulk deliveries, but we find nothing that would have alerted the trial court to counsel's intention to read to the jury sections of the WCA on which the jury was not requested to be instructed and was not instructed.

The argument of counsel is not evidence. Merco Distrib. Corp. v. O&R Engines, Inc., 71 Wis.2d 792, 795-96, 239 N.W.2d 97, 99 (1976); see also Wis J I--Civil 110. Counsel who takes upon himself or herself the task of instructing the jury by reading to it statutes or regulations runs the risk of leaving the jury uninstructed on matters critical to his or her client's case because only the trial court can instruct the jury as to the law. It is the function of the jury to find the facts, not to decide the law, even if the law appears to be contained in an unambiguous statute or regulation. Therefore, we reject Morris's argument that we can consider sections of the WCA on which the jury was not instructed in determining whether credible evidence supports its finding that the plaintiffs violated the WCA in its credit dealings with Morris.

We nevertheless conclude that the jury, as instructed, could have found that the plaintiffs violated the WCA by extending credit to Morris without his authority and without disclosure to him as required by ch. 422, Stats.

It is undisputed that Morris did not sign the Wisconsin Farm Plan credit agreement. We accept the trial court's finding that Gus signed Morris's application. 1 Sec. 805.17(2), Stats. The jury was thoroughly instructed on the elements necessary to establish apparent authority. There was credible evidence from which the jury could have found that Gus did not have authority to apply for credit on Morris's behalf.

Neither the opening arguments nor the closing arguments were...

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