Glatt v. Bank of Kirkwood Plaza
| Decision Date | 03 March 1986 |
| Docket Number | No. 10939,10939 |
| Citation | 383 N.W.2d 473 |
| Parties | James G. GLATT, Ruben C. Scherle and East Plaza Development, Plaintiffs and Appellees, v. BANK OF KIRKWOOD PLAZA, Defendant and Appellant. Civ. |
| Court | North Dakota Supreme Court |
Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for plaintiff and appellee James G. Glatt; argued by David L. Peterson.
Chapman & Chapman, Bismarck, for plaintiff and appellee Ruben C. Scherle; argued by Daniel J. Chapman.
Lamb, Schaefer, McNair & Larson, Fargo, and Bair, Brown & Kautzmann, Mandan, for defendant and appellant Bank of Kirkwood Plaza; argued by Malcolm Brown. Appearance by Robert J. Schaefer.
Appearance by Keith C. Magnusson, Bismarck, for North Dakota Bankers Ass'n, amicus curiae.
The Bank of Kirkwood Plaza (the Bank) appeals from a district court judgment entered upon a jury verdict and from an order denying its motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial entered in an action brought by Glatt, Scherle, and East Plaza Development (hereinafter collectively referred to as the developers) for repudiation of a contingent loan commitment. We affirm as to liability, reverse as to damages, and remand for a new trial on the amount of damages only.
By letter dated July 16, 1982, the Bank, through Senior Vice President H. Charles Boyd-Snee, gave the developers a commitment:
"... to lend $1,700,000 for the purpose of purchasing condominium units and construction funds to complete racquetball, health club, restaurant and bar facilities in the Metro Business Park...."
The commitment was subject to 23 conditions and was stated to be binding on the Bank for six months.
On August 10, 1982, Ray Lamb, 1 Boyd-Snee, Glatt, and Scherle toured the project site. At a meeting the next day, Mr. Lamb, according to Scherle, stated: "I am not going to make this loan." Scherle testified that the reasons Lamb gave were the unwillingness of the Bank of North Dakota to participate in the loan and "that the racquetballs and the recreation facilities in the areas are not successful, ..." Lamb testified that at the August 11 meeting he told Glatt and Scherle:
"... that the Bank of North Dakota was absolutely not interested in participating in the loan ... that I felt that the loan was not a workable loan ... that we were not favorably disposed to do the loan participation at the Dakota Bank in Fargo." 2
On September 3, 1982, Max Rosenberg, counsel for the developers, had a telephone conversation with Mr. Lamb, from which he concluded that there "wasn't any question" that the Bank was not going to go through with the loan commitment. Rosenberg later received a letter dated September 8, 1982, stating:
The letter was on stationery bearing the letterhead of Dakota Bankshares, Inc., and was signed by Mr. Lamb over the following legend:
The developers sued the Bank for specific performance of the commitment or damages by summons and complaint dated September 20, 1982. Trial to a jury resulted in a verdict and damage judgment for the developers in the amount of $3,578,480.50. The Bank moved for judgment notwithstanding the verdict or new trial on the grounds, among others, of surprise in the introduction and use of an appraisal report, excessive damages, insufficiency of the evidence to support the verdict, errors in instructions, and errors in the conduct of the trial. The motion was denied. On appeal, the Bank presents a series of issues involving both liability and damages.
The Bank and amicus curiae urge that the trial court erred in placing on the Bank the burden of proving that the developers could not have met the conditions precedent contained in the commitment letter, rather than placing on the developers the burden of proving that they could have met the conditions. The parties have referred us to numerous citations of authority in support of their positions. However, we deem it unnecessary to decide upon which party this burden of proof ought to have been placed.
At a January 7, 1985 hearing on pretrial motions, the trial court stated:
"... But in terms of trying to establish whether or not they [the developers] could have met those conditions, it would not be a matter then of them proving they could have, but a matter of you [the Bank] proving that they could not."
When the trial court asked for his reaction, counsel for the Bank responded:
The trial court then ruled as follows:
The foregoing excerpts indicate that the Bank not only failed to object to the trial court's placement of the burden of proof about the developers' ability to perform the conditions precedent, but agreed with the trial court's analysis. The Bank received everything that it asked for--an "opportunity to show that the conditions precedent were not met" and an "opportunity to show they couldn't have been met." The Bank, which did not ask that the burden of proof be placed on the developers, will not now be heard to complain about something that it did not object to and agreed with. Error, if any, that is invited, acquiesced in, or not objected to, may not be raised on appeal as a ground upon which to reverse a judgment. Chaffee Bros. Co. v. Powers Elevator Co., 41 N.D. 94, 170 N.W. 315 (1918); Frieh v. City of Edgeley, 317 N.W.2d 818 (N.D.1982); Section 31-11-05(6) and (7), N.D.C.C.
The trial court instructed the jury:
"It is a defense, however, if the greater weight of the evidence establishes that the plaintiffs could in no event have met the conditions upon which the loan was contingent, because it would follow that the withdrawal of the commitment would have caused no damage."
The Bank had requested a nearly identical instruction, but without the first five words, which the Bank contends compounded the error of placing the burden of proof on the Bank.
At the pretrial hearing on January 7, 1985, the trial court, in accordance with Rule 51, N.D.R.Civ.P., gave the parties proposed instructions and directed them to respond by noon on January 11, 1985. The developers filed a brief objecting to the instruction. The Bank filed a brief outlining its position on elements of damage, but did not address or object to the instruction. On the first day of trial, the court again provided the parties with an opportunity to object to the proposed instructions. The developers again objected to the instruction and the Bank again did not object to it. The court then read to the jury eight pages of instructions, including the one at issue, and the trial began. 3 Thus, the Bank, though given the opportunity to do so, did not object to the instruction given and we will not consider it. 4
The Bank contends that the trial court erred in failing to give its requested instructions on the formation of contracts, fulfillment of conditions precedent to the establishment of a contract, anticipatory repudiation, and retraction of anticipatory repudiation.
The Bank contends that the court erred in failing to give its Proposed Instruction No. 1, which generally defined contracts, parties, consent, the object of a contract, and consideration. The trial court refused to give the instruction on the ground that it was unnecessary. We agree. There was no dispute about what a contract is, whether the parties were capable of contracting, whether there was consent, whether the object of the contract between the parties was lawful, or whether there was consideration.
The trial court refused to give the Bank's Proposed Instruction No. 2 and No. 3, which defined conditions precedent and stated that one must perform them before requiring another party to perform any act, because they were "contrary to the rule in the last paragraph, since I placed the burden on the bank to establish that they could not meet the conditions." The requested instructions were inapplicable to this suit for anticipatory repudiation of a loan commitment letter, as distinguished from a suit for breach of the loan agreement at the end of the commitment period.
The trial court refused to give the Bank's Proposed Instruction No. 9 and No. 10, dealing with offer and acceptance and acceptance of a unilateral offer by performance of the requested act, because:
We agree with the trial court's analysis.
The Bank contends that the trial court erred in failing to give its Proposed...
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