John C. Filson, et al. v. Wells Fargo Home Mortgage, Inc.

The mortgagors filed suit, charging the mortgagee with breach of contract for failure to comply with terms of a note, deed of trust, and automatic payment service plan pursuant to which the mortgagee greed to automatically debit the mortgagors’ bank account for monthly payments. The jury found the mortgagee guilty of breach of contract and awarded damages in the amount of $250,000. The trial court remitted this damage award to $150,000. On appeal, the mortgagee argues that the trial court erred by failing to grant the mortgagee’s motions for directed verdict and for judgment notwithstanding the verdict on the ground that the mortgagors were guilty of the first uncured material breach of contract, by excluding evidence as a discovery sanction and by awarding the mortgagors $150,000. The mortgagors contend that the mortgagee waived all issues by not including them in its motion for new trial. After careful review, we hold that 1) the mortgagee did not waive its issues for purposes of appeal because the issues were included in the memorandum of law it incorporated in the motion for new trial; 2) the trial court did not abuse its discretion in excluding certain evidence as a discovery sanction upon our finding that the mortgagee failed to explain why the excluded evidence was not timely provided to the mortgagors or to establish its importance at trial; 3) the trial court did not err in failing to grant the mortgagee’s motions for directed verdict and judgment notwithstanding the verdict upon our finding that the mortgagee was guilty of the first uncured material breach of contract by failing to timely institute its automatic payment service plan; and 4) in compliance with the mortgagee’s request, this case is remanded for a new trial solely on the issue of damages upon our finding that the trial court’s award of damages in the amount of $150,000 is not supported by the evidence.