Keever v. Payless Auto Sales, Inc.

2003 WY 147, 79 P.3d 496, 2003 Wyo. LEXIS 178, 2003 WL 22703695
CourtWyoming Supreme Court
DecidedNovember 18, 2003
Docket03-28
StatusPublished
Cited by10 cases

This text of 2003 WY 147 (Keever v. Payless Auto Sales, Inc.) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keever v. Payless Auto Sales, Inc., 2003 WY 147, 79 P.3d 496, 2003 Wyo. LEXIS 178, 2003 WL 22703695 (Wyo. 2003).

Opinion

KITE, Justice.

[¶1] Larry Keever purchased a car from Payless Auto Sales, Inc. (Payless) and agreed to make three monthly payments and a balloon payment to pay off the purchase price. He failed to make the scheduled balloon payment and instead continued to make monthly payments, which Payless accepted. However, he stopped making payments before paying the full amount required by the agreement. Payless sued Mr. Keever for damages pursuant to the agreement. Mr. Keever argued the contract had been modified by the conduct of the parties, but the district court disagreed and awarded damages to Payless. We affirm the district court's judgment.

ISSUES

[12] Mr. Keever presents the following issues: 1

I. Whether the trial court's factual determination was clearly erroneous and/or contrary to the great weight of the evidence in that the contract between Defendant and Plaintiff was not modified by the payment and acceptance of monthly sums versus previously agreed lump-sum payment{[?]
II. If the contract between the Plaintiff and Defendant is found modified, wheth *498 er such modified contract needs to be reduced to writing with such writing or "modified contract" having to include required consumer credit disclosures{?]
III. If the "modified contract" between the parties needs to be in writing and contain the appropriate disclosures, whether the failure to do so renders the contract void as against public policy and/or void for illegality[?]

FACTS

[13] In 1996, Mr. Keever purchased a 1991 Chevrolet Lumina van from Payless. He signed a Credit Sale Note/Disclosure/Security Agreement for the purchase price of $13,615.92, which incorporated a Chevrolet Geo as collateral. Pursuant to the contract, Mr. Keever was to make three monthly payments of $250.00 beginning November 1, 1996, and a balloon payment of $13,478.62 on or before February 11, 1997. The annual percentage rate on the contract was eighteen percent (18%). Mr. Keever never made the balloon payment, but continued to make monthly payments, which Payless accepted for over three years until early 2000. James Ditzel, owner of Payless, testified at trial he continued to "urge" Mr. Keever to make the balloon payment. After February 3, 2001, Mr. Keever stopped making payments to Payless despite the fact he still owed money on the contract.

[T4] On October 831, 2001, Payless filed suit against Mr. Keever 2 . In response, Mr. Keever claimed Payless' acceptance of his monthly payments constituted a modification to the contract. Following a bench trial, the district court found the terms of the contract had not been modified, and "defendant simply chose not to make the payments as scheduled." The court also found the terms of the contract were properly disclosed, including the provision that late payments would increase the finance charge.

[T5] This appeal followed.

STANDARD OF REVIEW

[16] Our review of the trial court's factual determination that the terms of the Credit Sale Note/Disclosure/Security Agreement had not been modified is limited. Findings of fact will not be set aside unless the findings are clearly erroneous.

"When a trial court in a bench trial makes express findings of fact ..., we review the factual determinations under a clearly erroneous standard[.]" Rennard v. Vollmar, 977 P.2d 1277, 1279 (Wyo.1999). This court does not weigh the evidence de novol.]

Ruby Drilling Co. v. Duncan Oil Co., 2002 WY 85, ¶ 9, 47 P.3d 964, ¶ 9 (Wyo.2002).

[T7] We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law. Life Care Centers of America, Inc. v. Dexter, 2003 WY 38, ¶ 7, 65 P.3d 385, ¶ 7 (Wyo.2003). We affirm the trial court's findings if there is any evidence to support them. Id. We accept the evidence of the prevailing party as true and give that party the benefit of all favorable inferences that can fairly be drawn from the evidence, while disregarding conflicting evidence. Narans v. Paulsen, 803 P.2d 358, 360 (Wyo.1990). A reviewing court will not set aside the court's findings merely because it might have reached a different result. Conner v. Board of County Commissioners, Natrona County, 2002 WY 148, ¶ 23, 54 P.3d 1274, ¶ 23 (Wyo.2002). A finding can be "clearly erroneous" even though there is evidence to support it, if after a review of the entire record, the court "is left with the definite and firm conviction that a mistake has been committed." Hammons v. Table Mountain Ranches Owners Association, Inc., 2003 WY 85, ¶ 12, 72 P.3d 1153, ¶ 12 (Wyo.2003).

DISCUSSION

[18] Mr. Keever asserts the Credit Sale Note/Disclogsure/Security Agreement he signed was modified by the subsequent conduct of the parties. The conduct he relies *499 upon is Payless' acceptance of his monthly payments after he failed to make the scheduled balloon payment. However, Mr. Keever chooses to ignore the evidence at trial that demonstrated Payless had no intention of modifying the contract, but instead, was simply accepting the late payments upon Mr. Keever's continued promises to make the balloon payment. On direct examination, Mr. Ditzel testified:

Q. Looking at this, in February, Mr. Keever was supposed to make that large balloon payment.... [Dlid he actually make that payment in February?
A. No, he didn't.
Q. What did he do?
A. Just continued] to make payments looks like 250, 250, 250, then went to 300.
Q. So instead of making the balloon payment, he continued to make payments in the amount of $300 a month?
A. Yes.
Q. And those payments continued to accrue interest at the note rate?
A. Correct.
Q. And you accepted those payments?
A. I did.
Q. Why did you do that?
A. That's all I could get. In fact, we urged him to make that balloon payment but we were always given several exeuses: the bonus check never came in; the refund check never came in, etcetera, etcetera. So over time, we just accepted what we could get.
Q. So that was a business decision you had to make?
A. Yes.

[19] Following his direct examination, Mr. Ditzel testified to the following on cross-examination:

A. _... I know that in my notes I continued to try to get the balloon payment and that he had made several promises on his-that when he got his bonus check, that he would pay the account off.
Q.

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2003 WY 147, 79 P.3d 496, 2003 Wyo. LEXIS 178, 2003 WL 22703695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keever-v-payless-auto-sales-inc-wyo-2003.