Opinion
White & Steele, P.C., Lowell White, Denver, for plaintiff-appellee.
Simon, Eason, Hoyt & Malone, P.C., William K. Malone, Englewood, for defendant-appellant.
RULAND, Judge.
Federal Deposit Insurance Corporation (F.D.I.C.) initiated this case against Pierce Dodge, Inc., now Pierce Volkswagen, Inc., (dealer), seeking to recover a money judgment. This is the second appeal to this court in this case. Dealer now seeks to overturn judgment of the trial court awarding $4,751 plus interest to F.D.I.C. We affirm in part and reverse in part.
On November 8, 1968, dealer entered into an agreement providing the terms on which the Rocky Mountain Bank (bank) would buy installment notes which the dealer acquired from its customers in connection with its retail automobile business. On January 30, 1969, the bank was closed by the Colorado State Banking Commissioner, and a portion of the bank's assets were purchased by F.D.I.C.
Following a trial to the court, the court found, Inter alia: (1) The November 8, 1968, agreement was one of the assets purchased by F.D.I.C.; (2) the agreement required that in the event of repossession of collateral by the bank, or prepayment of the note by a customer, dealer was obligated to return part or all of certain sums designated as 'dealer's reserve', together with the unused portions of premiums on insurance which dealer sold in connection with the sales; (3) as of January 30, 1969, there were three repossessions, either by the bank or by dealer, which obligated dealer to return the dealer's reserve in a total amount of $1,021.70; and (4) a number of other repossessions and prepayments occurred after February 5, 1969, but these amounts were not itemized since the trial court concluded that F.D.I.C. was not entitled to recover on these items because F.D.I.C. refused to accept further contracts from dealer following the State Banking Commissioner's order to close the bank.
F.D.I.C. appealed to this court. The question on appeal was whether the refusal of F.D.I.C. to accept any installment note contracts after February 5, 1969, prevented recovery from the dealer of dealer reserve on loans foreclosed or prepaid after that date. We reversed the decision of the trial court, and the case was remanded for further proceedings not inconsistent with the views expressed in that opinion. Federal Deposit Insurance Corp. v. Pierce Dodge, Inc., Colo.App., 504 P.2d 380 (not officially published).
On remand, the trial court revised its findings of fact and increased the judgment in favor of F.D.I.C. The trial court then denied dealer's motion for new trial or to amend judgment. Dealer now appeals contending there was insufficient evidence to show that any of the installment notes at issue were sold by dealer to the bank and that the evidence was insufficient to sustain the other elements of F.D.I.C.'s burden of proof.
As to the installment notes covered by the original judgment, dealer's contentions are without merit. Dealer's liability as to the installment notes covered by the original judgment having been affirmed in effect by this court in the first appeal, the law of the case was established, See United States National Bank v. Bartges, 122 Colo. 546, 224 P.2d 658, and we will not review again the issues previously resolved. See Ginsberg v. Bennett, 106 Colo. 285, 104 P.2d 142.
As to the installment notes involved in the amended judgment, an examination of the record discloses that the notes were not introduced in evidence and there is otherwise no evidence to support the trial court's findings relative to these notes. However, we conclude that our remand to the trial court was not sufficiently specific. In the opinion covering the first appeal we did not intend to express any ruling as to proof of installment notes not covered by the original judgment, and we contemplated that the trial court would hear additional evidence on such issues. We therefore reverse the amended judgment and remand the cause to the trial court with directions to take additional evidence as to the installment notes not covered by the original judgment in order to determine whether F.D.I.C. is entitled to recovery thereon.
The judgment is affirmed in part, reversed in part, and the cause is remanded for hearings consistent with the views expressed in this opinion.
ENOCH and PIERCE, JJ., concur.