Zimmerman v. Bozeman Production Credit Ass'n

NO. 8 7 - 5 4 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
TIM ZIMMERMAN, individually and as
Personal Representative of the Estate
of DAN ZIMMERMAIJ,
Plaintiff and Appellant,
-vs-
BOZEMAN PRODUCTION CREDIT ASSOCIATION,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leonard J. Haxby, Butte, Montana
For Respondent:
Michael J. Lilly; Lilly, Andriolo & Schraudner,
Bozeman, Montana
Submitted on Briefs: June 1 9 , 1 9 8 8
Decided: August 8, 1988
306 8 1988'
~iled :
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Tim Zimmerman , individually and as Personal
Representative of the estate of Dan Zimmerman, appeals from
the judgment of the District Court of the Eighteenth Judicial
District, Gallatin County, entered upon a jury verdict. The
jury found on a special verdict form that defendant Bozeman
Production Credit Association (hereafter referred to as PCA)
did not wrongfully convert certain farm equipment. We
affirm.
Appellant frames three issues for review by this Court:
1. "Is the Jury's verdict in error in that it was not in
conformance with the preponderance of the evidence?"
2. "Were the improper comments during closing argument
of the Respondent's counsel of sufficient magnitude as to be
error, which would mandate a reversal of the verdict?''
3. "Was the court's giving of Respondent's instructions
11 and 18, over the objection of the Plaintiff, error, and if
so, was it error of sufficient magnitude that would warrant a
reversal of the decision herein?"
Certain facts of this case are disputed, but a summary
of those facts important to the above issues are as follows:
In 1981, Dan Zimmerman entered into a lease for farm
land near Dillon, Montana, with the intention of moving to
that area to go into the farming business. In order to
pursue farming operations on the leased land, Dan Zimmerman
purchased an Allis-Chalmers 7060 tractor, an Allis-Chalmers
26-foot disc and a Rollflex 26-foot tool bar for a total.
price of $44,000. He made a down payment of $15,000, and
financed the remainder through PCA's Dillon office.
In January of 1982, Dan Zimmerman was killed in an
airplane crash. His brother, Tim Zimmerman, was appointed
personal representative of his estate. Dan Zimmerman had
credit life insurance through PCA that paid the balance owing
on the farm equipment in question. However, the farm lease
remained an obligation of the estate. The Zimmerman family
contacted Jerry Ryan, a friend of the deceased who lived in
the Dillon area, about taking over the farm lease. He
agreed, but informed the Zimmermans that in order to farm the
additional land, he would need more equipment. The
Zimmermans agreed to allow Ryan to use the equipment
purchased by Dan Zimmerman to farm the leased land, which he
did for the 1982 season.
During January of 1983, Ryan contacted PCA's Dillon
office about renewing his operating loan for the 1983 farming
season. On his application forms for the loan, and later on
the loan financing statement, Ryan listed the Allis-Chalmers
tractor and 26-foot disc as collateral. The purpose of
placing this equipment on the forms was disputed at trial.
PCA asserts Ryan represented to their employee that he
had arranged to purchase the equipment from the Zimmermans,
giving an $8,000 down payment with the balance to be paid in
November of 1983. Tim Zimmerman (hereafter referred to a
Zimmerman), on the other hand, argues that the equipment was
listed in the application documents at the behest of the PCA
employee, even though Ryan told him that he was only using
the equipment and would not purchase it until November.
In the fall of 1983, Ryan defaulted on his loan from
PCA . PCA took possession of all the items listed as
collateral in the financing statement, including the tractor
and disc at issue here. Zimmerman sought the return of the
equipment, which PCA refused. On July 18, 1985, Zimmerman
filed a complaint seeking possession of the equipment, as
well as actual and punitive damages. The verdict was
returned in favor of PCA and judgment entered, and this
appeal ensued.
I.
Zimmerman first asserts that the jury's verdict was in
error in that it did not conform with the preponderance of
the evidence. The rule in this Court is that a jury's
verdict will not be overturned if there is substantial
evidence in the record to support the jury's finding. Lane
v. Dunkle (Mont. 1988), 753 P.2d 321, 45 St.Rep. 686, and
cases cited therein.
The record in this case supports the jury's verdict.
PCA's Exhibit C introduced a trial is a security agreement
dated February 11, 1983, between Jerry and Colleen Ryan and
PCA. The agreement lists collateral pledged by the Ryans to
secure an $87,609.00 loan. Included in that list is an
Allis-Chalmers 7060 tractor and 26-foot disc, subject to a
lien held by "B. Zimmerman." PCA's Exhibit H is a financial
statement signed by the Ryans, which lists $23,500 as being
owed to "Zimmerman" for the tractor and disc.
Peter Moe, the PCA employee who negotiated the Ryans'
loan, testified at trial regarding PCA's Exhibit H. He
stated the information was entered on the financial statement
as the result of Ryan telling Moe that he had arranged the
purchase of the equipment at issue from Zimmerman on the
terms stated above. Moe testified that the money owed on the
equipment was entered on the form as a liability for use in
calculating Ryan's ability to repay the PCA loan.
PCA also offered testimony by its employees Bruce Parker
and Boyd Hanson concerning telephone conversations they had
with Bob Zimmerman, another brother of the deceased, after
PCA took possession of the equipment at issue. In those
conversations, Bob Zimmerman confirmed that a sale of the
equipment to Ryan had taken place. The testimony of these
employees was buttressed by PCA's Exhibit G I a letter from
Hanson to Bob Zimmerman confirming the contents of their
telephone conversation. The letter asked for a written
response if any of the information was incorrect, but no
response was received.
While Zimmerman presented evidence supporting his
version of the facts at issue, our function is not to agree
or disagree with the verdict rendered by the jury. We simply
review the record to search for sufficient evidence upon
which the verdict could be based. Kleinsasser v. Superior
Derrick Service, Inc. (Mont. 1985), 708 P.2d 568, 42 St.Rep.
1662. The record contains probative facts sufficient to
support the jury's verdict that PCA did not wrongfully
convert the equipment.
11.
Zimmerman next asserts that PCA's attorney made improper
comments to the jury during closing argument that were
sufficiently prejudicial to require reversal of the jury's
verdict. The record shows, however, that Zimmerman's counsel
did not object to the allegedly prejudicial comments at
trial, and in fact responded to them in his own closing
argument.
Generally, under Rule 103, M. R.Evid. , failure to object
waives a claim of error unless a substantial right of the
party is affected. Clark v. Norris (Mont. 1987), 734 P.2d
182, 44 St.Rep. 444. However, Zimmerman draws our attention
to subsection "d" of Rule 103, which states that a trial or
appellate court is not precluded from "taking notice of plain
errors affecting substantial rights although they were not
brought to the attention of the court." Rule 103(d),
M.R.Evid.
The "plain error doctrine" is used only in exceptional
cases. Reno v. Erickstein (1984), 209 Mont. 36, 679 P.2d
1204. The comment complained of by Zimmerman was an instance
of "wondering aloud" by PCA's counsel as to why Ryan's wife
was not called as a witness, because she was present when
Ryan allegedly told Moe he had purchased the equipment at
issue. While Zimmerman does not set forth the particular
right this comment is to have affected, it appears from his
brief that he is asserting his right to a fair trial.
However, we do not see evidence in the record of this case to
indicate that Zimmerman's right to a fair trial was affected.
We decline to apply the plain error doctrine, and instead
rest on the general rule stated above that Zimmerman's
failure to interpose timely objection to the comment
precludes him from raising this alleged error on appeal.
Zimmerman's final assertion is that the District Court
committed reversible error in giving PCA's jury instructions
11 and 18. Zimmerman's brief on this point concludes, "The
contentions of the Appellant in this case are that the
instructions given were so erroneous and conflicting that the
jury could not, without broad legal experience and expertise,
separate one from the other to come up with what is a correct
statement of the law as a whole "...
At trial, Zimmerman's counsel objected to the
instructions on grounds other than those argued to this
Court. The objection to instruction 11 was that it did not
fit the facts as presented at trial and might therefore
mislead the jury. The objection to instruction 18 was that
it referred to a creditor's right to possession of collateral
without specifying that such collateral had to be "lawfully
obtained." At no point did counsel state that the two
instructions conflicted.
In Reno, 679 P.2d at 1209, we stated, "Plaintiffs will
not be heard to challenge on appeal an instruction for
reasons not raised before the trial court. Rule 51.,
M.R.Civ.P. requires that the grounds for objection to jury
instructions must be stated with particularity." The ruling
in Reno is dispositive of this issue. Zimmerman will not be
allowed to raise an objection to the instructions in this
Court that was not presented to the District Court.
We affirm the judgment of the District Court.
We concur: //
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