Weaver v. O'Meara Motor Co., 961
| Decision Date | 21 March 1969 |
| Docket Number | No. 961,961 |
| Citation | 452 P.2d 87 |
| Parties | 6 UCC Rep.Serv. 415 Walter J. WEAVER, Appellant, v. O'MEARA MOTOR COMPANY, a Colorado corporation, Appellee. |
| Court | Alaska Supreme Court |
James K. Tallman, Anchorage, for appellant.
Eric E. Wohlforth, McGrath & Wohlforth, James J. Delaney, Delaney, Wiles, Moore & Hayes, Anchorage, for appellee.
Before NESBETT, C. J., and DIMOND, and RABINOWITZ, JJ.
This litigation arises out of a 1965 sale by O'Meara Motor Company, a Ford dealer with offices in Denver, Colorado, to appellant of four dump trucks and one pickup truck. The sale of the vehicles was made pursuant to retail installment contracts which provided for repossession, without demand or process of law, upon default in payment. 1 After repossessing the dump trucks in July 1966, appellee sold them, and then sued appellant for deficiency judgments. 2 Appellant counterclaimed for conversion of the four dump trucks seeking damages flowing from appellant's improper sale of the four vehicles. Appellant further counterclaimed for personal injuries sustained as a result of an assault and battery committed by appellee's agent in attempting to repossess the pickup truck from appellant's home. The issues were tried to a jury which returned verdicts in appellee's favor on the dump trucks-deficiency judgment issues; in appellee's favor for the balance owed on the pickup truck contract; in appellee's favor on both appellant's counterclaims for wrongful repossession of the dump trucks and upon his counterclaim for personal injuries. The jury also returned a verdict in favor of appellant for $7,160.06 on his counterclaim based upon appellee's failure to give proper notice of resale of the dump trucks upon their repossession. Thereafter, appellee was granted a judgment n. o. v. on this verdict in favor of appellant for the sum of $7,160.06. This appeal followed.
One of the principal grounds urged by appellant for reversal is that the trial court erred in holding that appellee, a foreign corporation, could institute and maintain an action in the courts of the State of Alaska. Essentially, appellant's argument here is that appellee had in fact transacted business within the State of Alaska, and since appellee had not complied with the requirements of AS 10.05.690, it was barred from maintaining the present action. AS 10.05.690 reads as follows:
Transacting business without certificate of authority as a bar to right to sue.
A foreign corporation transacting business in the state without a certificate of authority may not maintain an action, suit or proceeding in a court of the state until it obtains a certificate of authority. A successor or assignee of a foreign corporation transacting business without a certificate of authority may not maintain an action, suit or proceedings in a court of the state on a right, claim or demand arising out of the transaction of business by the corporation in the state until a certificate of authority is obtained by the corporation or by a corporation which has acquired all or substantially all of its assets.
Appellee argues that its activities fall within the provisions of AS 10.05.600(8) and therefore AS 10.05.690 is inapplicable. 3 In regard to foreign corporations, AS 10.05.600(8) provides the following concerning activities which are excluded from regulation:
Without excluding other activities which may not constitute transacting business in the state, a foreign corporation does not transact business in the state by carrying on any of the following activities:
(8) securing or collecting debts, or enforcing rights in property securing debts * * *.
Appellee contends that all the contacts it had with Alaska were for the purpose of securing debts or enforcing rights in property securing debts. In this regard, appellee presented evidence that it was a Colorado corporation engaged in the sale of Ford automotive products; that its business is conducted primarily in the Denver, Colorado area, and that most of its business is within the State of Colorado; and that it has no officer or salesman in other parts of the country. On the basis of the foregoing and the provisions of AS 10.05.600(8), we conclude that appellee was not transacting business within the intendment of AS 10.05.690, and was therefore not barred from instituting and maintaining, in the courts of this state, its causes of action in the case at bar. 4
Appellant's second principal contention in this appeal is that the lower court erred in denying his motion for a directed verdict. This motion was urged on the ground that appellee had failed to prove reassignments to itself of the vendor's interests, under the retail installment contracts, in the vehicles in question. 5 Since appellee failed to prove that reassignments of the vendor's interests were made prior to repossession of the dump trucks, and prior to this institution of this suit, appellant argues that appellee was not the real party in interest and could not institute and maintain the case at bar. Appellant bases his real party in interest argument mainly upon the provisions of AS 28.10.560 which read in part:
In a civil or criminal proceeding when the title or right to possession of a vehicle is involved, the record of registrations and certificates of title as they appear in the files and records of the department are prima facie evidence of ownership or right to possession of the vehicle. 6
Appellant further relies upon the decision of the Ohio Supreme Court in Mielke v. Leeberson 7 which appellant argues was decided under a statute similar to AS 28.10.560. In Mielke the Ohio Supreme Court held that proof of title had to be shown by the certificate of title as required by their statute. We believe mielke is distinguishable because of the significant differences between the provisions of AS 28.10.560 and the Ohio statute. Under the laws of Ohio it was provided in part that:
No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer's or importer's certificate duly issued, in accordance with the provisions of this chapter. 8
It is apparent that the Ohio statute requires proof of title or any interest in a motor vehicle to be evidenced by the certificate of title. On the other hand, AS 28.10.560 provides that the certificate of title to a motor vehicle constitutes prima facie evidence of the ownership, or right to possession, of the vehicle. 9 AS 28.10.560 does not preclude oral testimony as to the ownership, or right to possession, of a motor vehicle.
We, therefore, conclude that the trial court did not err in denying appellant's motion for directed verdict. Eugene O'Meara, appellee's vice president and secretary, testified that from July 1, 1966, appellee had an interest in the vehicles because it had obtained a reassignment. 10 We hold that this evidence was sufficient to justify the trial court's denial of appellant's motion for directed verdict. An additional reason for our upholding the trial court's ruling on appellant's motion for directed verdict is our conclusion that appellant waived the defense that appellee was not the real party in interest. Civil Rule 9(a) provides in part that:
When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sure or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment * * *.
Appellee argues that the issue of reassignment of the vendor's interests in the retail installment contracts was brought to appellant's attention in appellee's pre-trial memorandum, as well as certain testimony which was received early in the trial. 11 Under these particular circumstances, we believe a waiver of the defense of real party in interest occurred. Applicable here is our decision in Wilson v. Interior Airways, Inc., 12 where it was said:
Interior had notice before the trial had started that there had been a workmen's compensation award; and before the trial was over, knew that Wilson had accepted compensation under the award. With that knowledge it was incumbent upon Interior, if it had wished to challenge Wilson's right to maintain the action, to have moved to amend its answer to assert the defense of lack of capacity to sue by specific negative averment as required by Civ.R. 9(a). By failing to do this, the defense was waived. 13
The third principal contention advanced by appellant in this appeal is that the trial court erred in granting a judgment n. o. v. as to the $7,160.06 verdict in appellant's favor arising out of appellee's failure to give proper notice of resale of the dump trucks upon their repossession. 14 In regard to this issue, the jury was in part instructed that if they found appellant was entitled to damages arising out of the failure of appellee to give him the notice required by AS 45.05.788(c) of the Uniform Commercial Code,
then in determining the amount of damages you are instructed the proper measure of damages is the difference between the true market value of the trucks at the time of the sale and the amount for which the trucks were sold. 15
Where noncompliance with the notice of sale provision of AS 45.05.788(c) has been shown, the burden of proving that the market value of the collateral was received at the sale is upon the secured party. 16. We hold that appellee's proof met this burden in that it established at trial that it received the best available current price for the four dump trucks after they were sold upon repossession and that the sale was made in a commercially reasonable manner. 17 Under the evidence adduced, we believe the trial judge could conclude that reasonable men could not find that appellant suffered any damages by virtue of appellee's failure to...
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