WEAVER v. O'MEARA MOTOR COMPANY

RABINOWITZ, Justice.

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:

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:

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 office 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:

Appellant further relies upon the decision of the Ohio Supreme Court in Mielke v. Leeberson7 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:

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:

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:

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,

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 give the notice of resale required by AS 45.05.788(c).18

Appellant next argues the trial court erred in denying damages for loss of use of the dump trucks by virtue of appellee's conversion of them. Here appellant contends that upon appellee's failure to furnish him with the requisite notice of sale under AS 45.05.788(c), it was liable in damages for conversion of the trucks. We hold that the trial court correctly ruled that there was no conversion since appellee had the right to repossess the trucks under the terms of the retail installment contract and the provisions of AS 45.05.786.19 The trial court properly instructed the jury as to the proper measure of damages attributable to appellee's default of AS 45.05.788(c).

Appellant next advances eight separate points for reversal of the judgment entered below. Although many of the specifications of error relating to these eight points are not in conformity with our Supreme Court Rule 11 and have not been adequately briefed, we have reviewed each claimed error and can ascertain no reason for disturbing the judgment which was entered below. We will briefly mention these claimed errors.

Appellant urges that the trial court erred in giving instruction number 16 because it assumed a reassignment to appellee. We find no error as the instruction does not assume a reassignment from Associates Discount Corporation to appellee. Appellant next points to the court's instruction number 17 contending that it was erroneous because it informed the jury that appellee had the right of repossession without notice to appellant. We find no error here as AS 45.05.786 does not require any notice to be given. Similarly, no notice of repossession was required under the terms of the retail installment contract. As to instruction number 17A, appellant contends that it was erroneous because it assumed a reassignment to appellee. This contention is answered by our holding that there was sufficient evidence of a reassignment to appellee prior to its repossession of the dump trucks and by our holding that appellee had waived the real party in interest defense.

In regard to appellant's counterclaim for personal injuries arising out of an assault and battery allegedly committed during appellee's repossession of the pickup truck, appellant argues that the trial court's instruction number 32 was erroneous. There the court informed the jury that appellant's pre-existing cancerous condition was not worsened by the alleged assault and battery committed by Wes Super, appellee's agent. This point is not argued in appellant's brief, and therefore will not be considered in this appeal. The trial court also ruled that Super acted in self-defense during his attempted repossession of the pickup truck. This asserted error has not been briefed by appellant, and will therefore not be considered. In regard to the assault and battery issue, appellant also urges as error the court's refusal to admit into evidence a racial slur Super uttered after the alleged assault and battery had been completed, and the police had arrived at the scene of the abortive repossession of the pickup truck. We find no error in the court's ruling here nor can we discern any prejudice to appellant's case because of its exclusion. Lastly, on the assault and battery issue, it is urged that the trial court erred in not granting judgment n.o.v. as to appellant's counterclaim for personal injuries. We find no error because the evidence was highly conflicting and appellee had the right to repossess the collateral. Any explication of the meaning of "without breach of the peace," as that term is employed in AS 45.05.786, should be rendered only after the question has been fully briefed and argued.

Appellant's final point is that the court erred in refusing to give his proposed instruction number 6 which pertained to the award of damages for mental suffering caused by Super's assault and battery. This issue has not been adequately briefed. In particular, appellant has not shown why the issue was not rendered moot by the jury's finding in appellee's favor on the assault and battery issue.

Affirmed.