Concordia Financing v. Bronzan

Filed 4/20/06 Concordia Financing v. Bronzan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, John M. Watson, Judge. Affirmed.

Law Office of David C. Mathias and David C. Mathias for Defendants and Appellants.

Millar, Hodges & Bemis and Richard W. Millar, Jr., for Plaintiff and Respondent.

* * *

In this creditor's lawsuit against a third party, defendants appeal following an adverse judgment after a bench trial. They allege irregularities in the pleadings, a lack of evidence to support the judgment, evidentiary errors, and judicial bias. They also assert the plaintiff has no right to recover attorney fees. We find each of these arguments to be without merit and affirm the judgment.

I

FACTS

Plaintiff Concordia Financing Co., Ltd. (Concordia) was founded by Kenneth Crowder and defendant Fred Wiseman in 1994. At a later date, Concordia issued 300,000 shares of stock to Wiseman, representing approximately one-third of the company's ownership. Wiseman owned a company called Truck Trading, which sold trucks to the public. Concordia would finance the purchases by buying the conditional sales contracts. Eventually that relationship ran into difficulties, and in 2001, Concordia filed a lawsuit against Wiseman and Truck Trading that resulted in a judgment for approximately $356,000 (the 2001 action).

Sometime after Concordia sued Wiseman, he shut down Truck Trading. In approximately August 2001, Wiseman mailed the stock certificate reflecting his shares in Concordia to Andy Broznan. Broznan is a creditor of Wiseman's to whom he owes approximately $980,000. According to Wiseman, Broznan credited the value of the shares against the outstanding debt. According to Broznan, prior to the time he received the stock certificate he and Wiseman had not entered into an agreement to give Wiseman any particular amount as a credit. According to Broznan's somewhat confusing trial testimony, Broznan held the stock certificate in a separate account, to be applied to the debt if some cash was obtained from the stock certificate.

In September 2002, the clerk of the Orange County Superior Court issued a writ of execution to the Tulare County Sheriff on the judgment Concordia had obtained against Wiseman. The Tulare County Sheriff filed a return indicating that at the time Broznan was served in February 2003, the stock certificates were not in the office. Broznan filed a Memorandum of Garnishee declining to deliver the certificate to the levying officer stating that it was â€