Minnehoma Financial Co. v. Pauli

• Decision Date: 14 June 1977
• Docket Number: No. 4737,4737
• Citation: 565 P.2d 835
• Parties: MINNEHOMA FINANCIAL COMPANY, a Delaware Corporation, Appellant (Plaintiff below), v. Adam C. PAULI, Jr., Appellee (One of defendants below). MINNEHOMA FINANCIAL COMPANY, a Delaware Corporation, Appellant (Plaintiff below), v. Joe E. COULTER, Appellee (One of defendants below).
• Court: Wyoming Supreme Court

Page 835

565 P.2d 835

MINNEHOMA FINANCIAL COMPANY, a Delaware Corporation, Appellant (Plaintiff below), v. Adam C. PAULI, Jr., Appellee (One of defendants below).

MINNEHOMA FINANCIAL COMPANY, a Delaware Corporation, Appellant (Plaintiff below), v. Joe E. COULTER, Appellee (One of defendants below).

No. 4737.

Supreme Court of Wyoming.

June 14, 1977.

Ted Simola, Cheyenne, for appellant.

Dan J. Pauli and Bob C. Sigler, Torrington, for appellee Adam C. Pauli, Jr.

Franklin D. Bayless, of Trierweiler, Bayless & Mockler, Cheyenne, for appellee Joe E. Coulter.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

The principal question presented by this appeal is whether a mobile home park operator is entitled to a storage lien, under § 29-115, W.S.1957, C.1967, on a mobile home which is abandoned on his property by a tenant. We will hold that he is entitled to a lien and thereby affirm the decision of the trial court. We will also deny the appellees' motion to dismiss the appeal.

Appellant-Minnehoma Financial Company initiated this action against Appellees Adam C. Pauli, Jr., and Joe E. Coulter for conversion of a mobile home in which appellant had a security interest. Pauli asserts that he has a valid storage lien in the mobile home which had been abandoned on his property by the owner-tenant, and that this lien has been properly foreclosed, resulting in the lien sale of the home to Coulter.

The district court entered summary judgments in favor of Pauli and Coulter, finding generally that the storage lien and subsequent lien sale were valid as a matter of law; that there were no material issues of fact; and that appellant was barred from bringing its conversion action by the doctrine of laches.

On appeal, appellant asserts three contentions: (1) That appellees were precluded from obtaining summary judgments because of alleged violations of certain motor vehicle laws; (2) that an implied request to store is an insufficient basis for valid storage lien; and (3) that the foreclosure proceedings herein were not timely commenced under the statutes. Appellees have moved to dismiss the appeal for failure to comply with Rule 75(c), W.R.C.P., and for failure to contest the district court's finding of laches.

In 1972, the mobile home in question was purchased in Texas by J. O. Barton, and a Texas certificate of title issued in his name, subject to appellant's lien. In 1973, the home was sold in Texas to Henry and Marjorie Guest, subject to appellant's security interest therein. The Guests' credit application indicated that their payment book and insurance policies should be forwarded to Route 3, Box 573, Space No. 6, Cheyenne, Wyoming. The record does not indicate whether a new certificate of title was issued to the Guests. On February 10, 1974, the Guests rented a trailer space from Pauli, located at the above-mentioned address and made their last payment to appellant on March 5, 1974, giving their address as Pauli's trailer park. On or about May 10, 1974, the Guests vacated the mobile home and left no forwarding address. Pauli, after an inventory and inspection by the Laramie County Sheriff's office, on August 25, 1974, moved the home to an adjacent area where he stored it until May 3, 1975. During the intervening time, Pauli and his attorney made numerous efforts to locate the Guests and to determine any encumbrances on the home, including a search of the Laramie County records and a National Crime Information Center check by the Laramie County Sheriff's office. All efforts were fruitless. Appellant had not filed a security agreement or financing statement in Wyoming.

On March 24, 1975, Pauli mailed a notification of a storage lien and intent to sell the home to the Guests' last known address but it was returned unclaimed. On April 10 and 17, 1975, Pauli's attorney published a notice of lien sale in two newspapers of general circulation in Laramie County. On May 3, 1975, at the lien sale, the home was sold to the highest bidder, Joe Coulter, for $1,100.00. Coulter claims to have had no actual or constructive knowledge of appellant's interest in the home. The balance of money paid, after storage charges and costs of the sale were deducted, was deposited for the benefit of whoever might later be shown to be entitled thereto.

On February 3, 1976, appellant-financing company initiated this action against the appellees, upon whom service was had, and also upon the Guests, who were never located. Subsequently, Coulter and Pauli filed motions for summary judgment, with affidavits attached. On the day of the hearing on said motions, June 7, 1976, appellant filed answers to interrogatories propounded by Pauli and an affidavit which was discounted as not in compliance with Rule 56, W.R.C.P. Both motions for summary judgment were granted, resulting in this appeal.

APPELLEES' MOTION TO DISMISS

We will first consider the propriety of appellees' motion to dismiss the appeal for non-compliance with Rule 75(c), W.R.C.P. Rule 75(c) provides:

"(c) Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement Appellees argue that without a transcript or statement of the proceedings had on June 7, 1976, it is impossible to determine which of appellant's issues on appeal were raised below. It seems this argument is particularly aimed at appellant's contention that appellees violated certain motor vehicle laws.

and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal." (Emphasis supplied)

Rule 75(c), W.R.C.P, is virtually identical to Rule 75(c), F.R.C.P, which was abrogated in 1968, when the Federal Rules of Appellate Procedure were adopted and there are persuasive federal cases construing this section. The use of Rule 75(c) is permissive, not mandatory. Jaconski v. Avisun Corporation, 3 Cir., 359 F.2d 931, 936 (1966). As a result, an appeal cannot be dismissed merely because of appellant's failure to take advantage of Rule 75(c). ¹ However, it should be noted that the failure to use this optional procedure may have adverse effects on an appeal. See Kayo Oil Company v. Sammons, 5 Cir., 321 F.2d 729, 731 (1963).

Related to appellees' argument is the fundamental rule, applicable to appeals from summary judgments, that parties may not advance new theories or issues in order to secure a reversal of the lower court's determination. Theories or issues which are not apparent or reasonably discernible from the pleadings, affidavits and exhibits will not be considered. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2716, at 435-436 (1973). In reviewing the record on appeal from the granting or denial of a summary judgment, we must look at the record from a viewpoint most favorable to the party opposing the motion. Tri-State Oil Tool Industries, Inc. v. EMC Energies, Wyo., 561 P.2d 714 (1977); Shrum v. Zeltwanger, Wyo., 559 P.2d 1384 (1977); and Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976). Additionally, when a motion for summary judgment is before us, we have exactly the same duty as the trial judge and if the record is complete, we have exactly the same material and information in front of us as he did. Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1244 (1976). The moving party has the burden of showing the absence of a genuine issue of material fact. Hunter v. Farmers Insurance Group, supra, at 1343; and Knudson v. Hilzer, Wyo., 551 P.2d 680, 685 (1976). Appellant admits there is no genuine issue of material fact and, therefore, we proceed to determine only whether appellees were entitled to judgments as a matter of law.

FAILURE TO COMPLY WITH MOTOR VEHICLE STATUTES

Appellant first contends that appellees failed to comply with certain motor vehicle statutes, dealing with unclaimed and abandoned motor vehicles. We note that the only mention of this issue in the record is in the affidavit of appellant's collection manager, which was properly rejected by the district court as not being in compliance with Rule 56, W.R.C.P. ² Appellant did not file a brief opposing summary judgment, but the initial complaint filed in this matter, which makes reference to an "unlawful sale," possibly includes appellant's contention. ³ We are forced to note

that parties should take care to preserve issues for appeal, or risk a decision not to consider a contention not clearly presented below. After review of §§ 31-335 to 31-337, W.S.1957 (dealing with unclaimed vehicles), and §§ 31-338 to 31-346.3, W.S.1957, 1975 Cum.Supp. (dealing with abandoned vehicles), we find that they have no application to a fact situation such as that presented by this appeal. Even if we were able to find these statutes applicable, appellant's contention largely relates to its original claim of conversion. The district court found that this claim was barred by the doctrine of laches, since appellant knew the location of the mobile home more than a year prior to the lien sale, but failed to do anything to protect its interest therein. Appellant does not contest the propriety of this finding; and, therefore, the finding is deemed conclusive. Wyoming Department of Revenue v. Wilson, Wyo., 409 P.2d 960 (1965).

THE STORAGE LIEN ISSUE

Appellant's second point raises the question of whether or not Pauli had a valid storage lien pursuant to § 29-115, supra, and, more particularly, whether a storage lien may arise under the statute by an...