Unpublished Disposition, 930 F.2d 28 (9th Cir. 1991)

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.