930 F. 2d 28 - Marine Midland Automotive Financial Corporation v. US National Bank of Oregon
930 F2d 28 Marine Midland Automotive Financial Corporation v. US National Bank of Oregon
930 F.2d 28
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
MARINE MIDLAND AUTOMOTIVE FINANCIAL CORPORATION, dba Mazda
American Credit, Plaintiff-Appellee,
v.
U.S. NATIONAL BANK OF OREGON, Defendant-Appellant.
No. 90-35420.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 6, 1991.
Decided March 27, 1991.
Before JAMES R. BROWNING, EUGENE A. WRIGHT and FARRIS, Circuit Judges.
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MEMORANDUM*
U.S. National Bank ("USNB") contests the sufficiency of the evidence supporting two of the five elements of fraud--existence of a false representation and Marine Midland's reasonable reliance thereon. Munro's testimony that he requested but did not receive a schedule of collateral which should have included the SOT cars is evidence of a false representation. That the jury believed Munro over Tyler is a credibility determination that cannot be reweighed by this court. Landes Construction Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1372 (9th Cir.1987). The five actions taken by Marine Midland to investigate Davis Motors constitute sufficient evidence of reasonable reliance on USNB's misrepresentation.
We reject USNB's argument that submission to the jury on theories of both intentional and reckless fraud requires reversal of the punitive damage award because it is not possible to tell from the jury's verdict whether it found wanton misconduct. The jury was instructed punitive damages may be awarded only if it found intentional fraud or reckless fraud with aggravating circumstances. Because the jury awarded punitive damages, it must have found either intentional fraud or reckless fraud with aggravating circumstances. Donald H. Hartvig, Inc. v. Clackamas Town Center, 789 P.2d 679, 682 (Or.1990).
The district court correctly gave the jury instruction on half-truth misrepresentation. Krause v. Eugene Dodge, Inc., 509 P.2d 1199, 1208 (Or.1973). Nor did the court err in refusing to give USNB's instruction on the duty to volunteer. The proposed instruction was inaccurate and incomplete. The punitive damage instruction given meets constitutional requirements. Pacific Mutual Life Ins. Co. v. Haslip, 59 U.S.L.W. 4157 (U.S. Mar. 4, 1991).
Finally, the admission of the computer record of checking account transactions of Davis Motors was not an abuse of discretion since the record was relevant to the issue of intentional fraud.
AFFIRMED.
This disposition is not apprropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3