Melcher v. Bank of Madison

• Decision Date: 17 November 1995
• Docket Number: No. S-93-670,S-93-670
• Citation: 539 N.W.2d 837,248 Neb. 793
• Parties: Ervin MELCHER, Appellee, v. The BANK OF MADISON, Appellant.
• Court: Nebraska Supreme Court

Page 837

539 N.W.2d 837

248 Neb. 793

Ervin MELCHER, Appellee, v. The BANK OF MADISON, Appellant.

No. S-93-670.

Supreme Court of Nebraska.

Nov. 17, 1995.

Syllabus by the Court

1. Verdicts: Juries: Appeal and Error. A verdict is not to be set aside on appeal unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party.

2. Judgments: Directed Verdict. A motion for judgment notwithstanding the verdict may be granted when the movant's previous motion for directed verdict, made at the conclusion of all the evidence, should have been sustained.

3. Directed Verdict: Appeal and Error. In reviewing the action of a trial court, an appellate court must treat a motion for directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; the party against whom the motion is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

4. Directed Verdict: Evidence. In order to sustain a motion for directed verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion from the evidence.

5. Estoppel. Under the doctrine of judicial estoppel, one who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding.

6. Estoppel. Judicial estoppel may be applied even if detrimental reliance or privity does not exist.

7. Estoppel. The doctrine of judicial estoppel is to be applied with caution so as to avoid impinging on the truth-seeking function of the court because the doctrine precludes a contradictory position without examining the truth of either statement.

8. Estoppel. Absent judicial acceptance of the inconsistent position, application of judicial estoppel is unwarranted because no risk of inconsistent results exists.

9. Judgments: Verdicts. On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence.

10. Trial: Evidence. Where evidence is admitted generally, it may be considered for any purpose for which it is relevant and competent.

11. Verdicts: Evidence. A verdict amount within the range of the evidence is adequately supported by the evidence.

12. Juries: Witnesses. The credibility of a witness is an issue for the jury.

13. Jury Instructions. It is the meaning of a jury instruction, not its phraseology, that is crucial.

14. Jury Instructions. It is not error to refuse to give a requested instruction if the substance of the request is included in the instructions given.

15. Jury Instructions: Appeal and Error. All jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

16. Jury Instructions: Appeal and Error. Absent plain error, failure to object to a jury instruction after it has been submitted for review precludes raising an objection on appeal.

17. Appeal and Error: Words and Phrases. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

Daniel A. Fullner, of Moyer, Moyer, Egley, Fullner & Warnemunde, Madison, for appellant.

Vince Kirby, Norfolk, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CAPORALE, Justice.

I. INTRODUCTION

In this conversion action, the district court, pursuant to the verdict, entered judgment in the amount of $28,000 in favor of the plaintiff-appellee, Ervin Melcher, and against the defendant-appellant, The Bank of Madison. The bank thereupon appealed to the Nebraska Court of Appeals asserting, in summary, that the district court erred in overruling the bank's motion for judgment notwithstanding the verdict or a new trial because (1) it was entitled to the directed verdict it sought at the close of all the evidence and (2) the district court incorrectly instructed the jury. The Court of Appeals reversed the judgment of the district court, Melcher v. Bank of Madison, 3 Neb.App. 665, 529 N.W.2d 814 (1995), and Melcher thereafter successfully petitioned this court for further review. We now reverse the judgment of the Court of Appeals and remand with direction.

II. SCOPE OF REVIEW

A verdict is not to be set aside on appeal unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party. Hoeft v. Five Points Bank, 248 Neb. 772, 539 N.W.2d 637 (1995); Wolf v. Walt, 247 Neb. 858, 530 N.W.2d 890 (1995).

III. FACTS

Melcher's son owned a John Deere 4430 tractor, which had a number of mechanical deficiencies. As a result, the son considered buying a John Deere 4450 tractor to replace the 4430 unit, but concluded that the 4450 version was too expensive for him.

Melcher then traded in the son's 4430 for a 4450 at a purchase price of $39,500.50 plus sales tax of $857, for a total of $40,357.50. Melcher signed the purchase contract and was allowed $15,000 for the trade-in of the 4430, but a promissory note having a balance of $7,693 remained due on the 4430, so Melcher only received a credit of $7,307. In addition, Melcher paid $5,000 cash on the purchase price. Thus, a balance of $28,050.50 remained due on the 4450. Melcher signed a promissory note to John Deere for that amount, and he eventually paid it in full.

Although Melcher had the 4450 delivered to the son, Melcher testified that he never gave title to the unit to the son or anyone else and that he maintained possession of it and allowed his family members to use it any time they wanted, free of charge. Nonetheless, the son stated that he and Melcher had agreed that if the 4450 needed repairs, the son would pay for them.

The testimony as to how Melcher came to trade in the 4430 is in conflict. Melcher testified that the son told him to trade it in on the 4450. At one point, the son stated that he was surprised by the arrival of the 4450 and that he wished Melcher would have told him about the trade-in, but at another point, stated that he "gave" the 4430 to Melcher to purchase the 4450. The record does not explain what the son meant by the word "gave."

Following Melcher's purchase of the 4450, he had the son sign promissory notes in the amount of $28,000 during each of 7 successive years. Apparently, the son made no payments on the notes, but he did pay Melcher $5,000 from the proceeds of a loan he obtained from the bank as the final payment on the 4430.

Melcher did not claim depreciation of the 4450 on his tax returns and did not list it as an asset in the financial statements he supplied the bank. The son did both and, when filing for protection under chapter 12 of the U.S. Bankruptcy Code, listed the 4450 in his schedule of assets and named Melcher as a creditor. Melcher did not file any objection to the son's listing of the 4450 as his property.

The son had given a security interest in all of his farm equipment, including the 4430 and after-acquired property, to the bank during all pertinent times. Thus, when Melcher converted his chapter 12 bankruptcy proceeding to a proceeding under chapter 7 of the code, the bank sought, and was granted, relief from the automatic stay in order to bring an action in replevin to recover the son's farm equipment. After obtaining such judgment, the bank repossessed the 4450 and, after making some repairs, sold the unit at auction.

This suit then followed. Although Melcher testified that at the relevant time the 4450 was worth $40,000, there was evidence that it was sold at the auction for $31,100.

IV. ANALYSIS

It is true that a motion for judgment notwithstanding the verdict may be granted when the movant's previous motion for directed verdict, made at the conclusion of all the evidence, should have been sustained. Getzschman v. Miller Chemical Co., 232 Neb. 885, 443 N.W.2d 260 (1989). See, also, Hoeft v. Five Points Bank, 248 Neb. 772, 248 N.W.2d 772 (1995).

1. DIRECTED VERDICT

The first question then is whether the bank was, as it claims, entitled to a directed verdict at the close of all the evidence because of Melcher's conduct and because of the status of the evidence. In this connection, it is to be recalled that in reviewing the action of a trial court, an appellate court must treat a motion for directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. The party against whom the motion is directed is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference which can reasonably be deduced from the evidence. In order to sustain a motion for directed verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion from the evidence. Wolf v. Walt, 247 Neb. 858, 530 N.W.2d 890 (1995). See, also, Hoeft, supra.

(a) Conduct

The bank urges it was entitled to a directed verdict because as Melcher failed to object to the son's listing of the 4450 as one of his assets in his bankruptcy proceeding,...