GREEN TREE FINANCIAL SERVICING v. Sutton, S-00-1256.

• Citation: 650 N.W.2d 228,264 Neb. 533
• Decision Date: 09 August 2002
• Docket Number: No. S-00-1256.,S-00-1256.
• Parties: GREEN TREE FINANCIAL SERVICING CORPORATION, Appellee, v. Randy SUTTON and Rita Sutton, Appellants, and Will Anders and Toni Anders, Appellees.
• Court: Supreme Court of Nebraska

650 N.W.2d 228

264 Neb. 533

GREEN TREE FINANCIAL SERVICING CORPORATION, Appellee, v. Randy SUTTON and Rita Sutton, Appellants, and Will Anders and Toni Anders, Appellees.

No. S-00-1256.

Supreme Court of Nebraska.

August 9, 2002.

Gregory J. Beal, of Gregory J. Beal & Associates, P.C., Ogallala, for appellants.

Richard A. Drews, of Taylor, Kluver, Peters & Drews, Omaha, for appellee Green Tree Financial Servicing Corporation.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

In this replevin action, Randy Sutton and Rita Sutton appeal the decision in favor of appellee Green Tree Financial Servicing Corporation, now known as Conseco Finance Servicing Corporation (Green Tree). Green Tree sought possession of a manufactured home situated on real estate purchased by the Suttons. The Suttons were not debtors, but were in possession of the manufactured home at the time the action was commenced. Prior to trial, Green Tree obtained an order allowing it to take possession of the manufactured home. At the time of trial, the home was already in Green Tree's possession. The trial court directed a verdict in favor of Green Tree for possession of the manufactured home, but denied Green Tree's request for loss-of-use damages. No cross-appeal was taken by Green Tree. The trial court also directed a verdict against the Suttons on their claim for damages to their real property.

BACKGROUND

On or about March 25, 1997, Steven D. Beck and Lynda J. Beck made, executed, and delivered to Green Tree a manufactured home promissory note, security agreement, and disclosure statement (contract). Pursuant to the contract, the Becks were to make 360 monthly payments to Green Tree for the purchase of a manufactured home. Green Tree was to get a security interest in the home, which is noted on the certificate of title to the home.

The manufactured home was placed by the Becks on real property in Morrill County, which the Becks purchased from John Riggs. That transaction took place in December 1996. The Becks later filed for protection in the U.S. Bankruptcy Court for the District of Nebraska, but Green Tree obtained an order granting it relief from the automatic stay provisions.

On April 28, 1999, Green Tree filed a proof of claim with respect to its secured claim in the amount of $57,504.19. Under the contract for the sale of the manufactured home, the failure to make payments and the filing of bankruptcy were acts of default. This default entitled Green Tree to accelerate the full amount due under the contract and to repossess the home.

Sometime prior to July 16, 1999, the Becks abandoned the subject property. On June 15, 1999, the trustee executed a deed of reconveyance to "the person or persons entitled thereto." That same day, the trustee sold the real estate subject to the deed of trust to Timothy B. Riggs. On July 16, 1999, a warranty deed from Timothy Riggs and Kellye Riggs was given to Camp Clarke Ranch, L.L.C., conveying certain real estate, including the land on which the manufactured home was located. That same day, a warranty deed and attached plat from Camp Clarke Ranch, L.L.C., was given to the Suttons conveying the real estate at issue to the Suttons for $52,200.

At no time prior to the trustee's sale or the filing of the deed of reconveyance did Green Tree file or record a lien or claim of interest in the real estate. The Suttons checked for liens in the real estate records of Morrill County, but did not check the Morrill County clerk's records regarding a certificate of title to the manufactured home, or any liens thereon.

Randy Sutton testified that the value of the real property would have been only $700 per acre without the home. He assumed the home went with the land, and gave $52,200 for the property, which would have otherwise been farm ground. The Suttons claim that they were unaware of Green Tree's interest in the manufactured home until they learned otherwise on or about July 26, 1999.

The Suttons leased the manufactured home to Will Anders and Toni Anders, who occupied it until Green Tree commenced a replevin action. The Anderses moved out of the manufactured home and have no further interest in the proceeding.

Green Tree filed a replevin action to recover possession of the manufactured home. After a temporary possession hearing, the trial court entered an order granting immediate possession of the home to Green Tree. Green Tree posted an undertaking in replevin and a bond in the amount of $120,000. Green Tree hired a transfer company to remove the home and take it to a mobile home park in North Platte, Nebraska.

Under a writ of replevin, Morrill County Sheriff John Edens was ordered to deliver the manufactured home, a 1997 Guerdon Premier, 28- by 58-foot "mobile home," serial No. GDGENE0997158531/II. He oversaw the removal of the home, and met with the transfer company at approximately 9 a.m. on January 13, 2000. He observed the skirting around the manufactured home had been removed and jacks had been placed underneath the home to split the home into trailers. The only foundation observed by Edens was a flat cement surface. The home was sitting on cinder blocks, and attached underneath the trailers were axles and tongues.

Edens did not stay the entire day to observe the removal of the manufactured home, but checked in periodically until the home was removed around 4 p.m. He was not present when the home was actually driven off the property, but arrived soon after the workers had left. He observed no damage to the trees or the real estate other than tire tracks on the grass where the trucks had driven. However, according to Randy Sutton, water lines were cut, left open, and exposed; septic system pipes were destroyed; a pump was removed from a well; and the real property was left in a state of utter destruction. The Suttons claim thousands of dollars in damages to their property by reason of the removal of the manufactured home.

During the testimony of Edens, the Suttons attempted to offer photographs of the property. Green Tree objected. An order was previously entered requiring all exhibits to be provided by September 13, 2000, unless good cause was shown. The photographs, marked as exhibits 39 to 47 were not produced by September 13, or prior to trial. Green Tree objected to the photographs on the basis that the pretrial order directed all exhibits to be provided by September 13, unless good cause was shown. The first time the attorney for Green Tree had seen any of these photographs was at the trial. The Suttons' attorney responded that the photographs were offered only as impeachment of Edens' testimony, since he testified that he did not see any damage to the real estate. The trial court sustained the objection, stating that Edens "didn't say there wasn't any damage. He said he didn't see any."

At the conclusion of the evidence, Green Tree moved for a directed verdict on all of the issues. The trial court sustained the motion as to whether Green Tree rightfully possessed the property, but denied the motion as to whether Green Tree was entitled to damages and as to whether the Suttons' counterclaim should be dismissed.

Before the jury was instructed, the trial court reconsidered its decision on Green Tree's motion to dismiss. Finding that the claim for damages incident to the removal of the manufactured home was insufficiently pled to be submitted to the jury, the trial court dismissed the Suttons' counterclaim with prejudice.

ASSIGNMENTS OF ERROR

According to the Suttons, the trial court erred (1) in directing a verdict in favor of Green Tree on the issue of whether it had the right to immediate possession of the manufactured home; (2) in finding that it was not necessary for Green Tree to make a fixture filing in order to perfect a security interest in the manufactured home and ruling that Green Tree could treat the subject property as a motor vehicle or personal property rather than as property affixed to real estate; (3) in refusing to submit to the jury the issue of whether their real property had been damaged as a result of the removal of the manufactured home from said real property; and (4) in its rulings on evidence, the cumulative effect of which constitutes prejudicial error toward them.

STANDARD OF REVIEW

A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. Suburban Air Freight v. Aust, 262 Neb. 908, 636 N.W.2d 629 (2001).

In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. Fackler v. Genetzky, 263 Neb. 68, 638 N.W.2d 521 (2002). In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. V.C. v. Casady, 262 Neb. 714, 634 N.W.2d 798 (2001). A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. Sharkey v. Board of Regents, 260 Neb. 166, 615 N.W.2d 889 (2000).

ANALYSIS

GREEN TREE'S RIGHT TO POSSESSION

The trial court directed a verdict in favor of Green Tree as to the issue of possession. The trial court necessarily found that Green Tree had a valid lien on the manufactured home listed on the certificate of title, that it did not need to make a fixture filing in...