*1 GOSE, Appellant Richard V.

(Defendant), (Plaintiff). HESS, Appellee

Douglas M. Court Gose, pro se. Richard V. 13, 1991. Bon, Schwartz,

J. Burnworth of Scott Walker, McCrary Casper, for & THOMAS, C.J., Before GOLDEN, JJ., and CARDINE and ROONEY, Ret. J.

ROONEY, Retired. Appellant appeals summary judg- from a brought against on an action entered $4,429.74 promissory him by appellee on given by appellant Bank of and transferred Corpora- the Federal (FDIC) the bank failed and was tion after filed a taken FDIC. over $3,000, for a set-off of counterclaim paid by him on another note of amount to another failed bank also taken over parties stipulated FDIC. $3,000 payment was court found that the “on a and distinct loan which from that which is sued action.” (the The judgment was for note), principal amount of the accrued thereon, costs, terest $1,841, attorney’s fees of the total with percent per rate bear interest at the paid. annum until appeal: words issues permit- “A. Counterclaim Promissory ted in suit on a Note Hess Gose. granted Attorney’s fees were

“B. evidence and were Jury submitted to for its verdict. The interest rate of “C. legal authorized.” exceeded them: words *2 appellant’s counterclaim “1. Does the this note FDIC would have been contrary a cause of action? set forth notation on the by appellant. check The notation read: genuine “2. Is there a issue as to “Payment on Note of Western National preserved attorney’s fees which was be- Bank.” If an action brought were on the low? note of Western National Bank FDIC or “3. Does W.S. assignee, appellant would have a de- apply in 1988 judgments amended en- payment.1 fense of after the tered effective date of the stat- arising obligations ute but out of Further, when FDIC takes over a failed bank, curred before its effective date?” it is a receiver and capaci- acts ty of that bank in winding up that bank’s We affirm. Here, affairs. capacity it acts in the American Bank of with reference to COUNTERCLAIM $4,429.74 note and in the capacity of Appellant contends the claimed the Western National Bank with reference $3,000 by Wyo.Stat. set-off is authorized $3,000 note. (1988). assuming Even that the FDIC desired to “When cross demands exist between $3,000 payment use the against for set-off persons under circumstances that if one $4,429.74 debt, the notation on the other, brought against an action check reflecting payment it to up, counterclaim or setoff could be set $3,000 prevented note would have deprived neither can be of the benefit doing so. To do so would have been other, by assignment by or similar to a against set-off of one’s debt his death, (2) but the two demands general deposits in Speaking the bank. compensated will be deemed so far as court, Raper Justice Spratt said in they equal each other.” Security Buffalo, Wyominq, However, premise operation (Wyo.1982): 135-36 the statute is this case. Cir- going further, “Before we need to dis cumstances do not here exist which would right cuss a against bank’s to set off allow to offset or counterclaim general deposits possession. in its for payment attempted payment right pay bank’s of set-off to secure the one of the notes in an action on the other depositor’s ment of its indebtedness is a words, note. In other under the circum- part of the law merchant and well estab case, appellant stances of this could not lished commercial transactions. At $3,000 have claimed the set-off kinson v. Deposit Corp., Federal Ins. brought by FDIC an action FDIC on the (5th Cir.1981)]. F.2d 508 For a [635 $4,429.74 assigned note before was off, right bank to establish a to set three conditions must be met: ‘the fund to be $3,000 pay check was set off property must be the of the debt- $3,000 or, debt. It could not said deposited the fund must be restrictions, to also reduce the debt. To do so existing and the indebted $6,000 $3,000 would credit for a owing.’ ness must be due and Federal However, payment. in an Deposit affidavit Ins. v. Pioneer State Dismiss, appel- his Motion to N.J.Super. 381,] 382 A.2d [155 “paid lant states he [958,] to the Federal right bank’s set [1977]. $3,000 Corporation that should off does not arise until the time the de positor’s have been credited towards the to the bank indebtedness has note, promissory copy this of the can- matured. Bonhiver v. State Bank of celed checked Ill.App.3d is attached hereto.” Clearing, 331 N.E.2d [sic] [29 added.) (Emphasis Application (1975) pay- Addressing appellant’s ]. nothing indicating except 1. There is appellant’s in the record statement that credit should accept payment refusal for it. 584; there Lebsack v. Town permissible, set-off point, for Torrington, reh. denied and case mutuality obligation between order amended remanded creditor, as well as and his the debtor v. Wal Combs depos fund on the debt and the between ters, Bruegger P.2d 1254 *3 Michie, Banking, and Banks it. 5A Co., 529 Old Line Ins. F.2d v. National as set-offs to be used 115c. Debts Cir.1976). (10th wrong Appellant is in per the same due to and from question of attor contention the capacity. in the United same sons jury. by should determined ney’s fees Clawson, F.Supp. 178 v. States by the The amount here court (D.C.Wyo.1935).” allowed ap- attorney’s fees is that set forth authorize does not proposed summary judg pellee’s order and the appellant since by claimed the set-off to the submitted trial which was under not premise in the statute is to pursuant court Rule Uniform Rules case, i.e., appel- of this the circumstances Wyo District of the State of Courts have an offset lant could not ming. presented not relative Evidence was FDIC, by against him in an action reasonableness of them. receiver, given by the on properly object contends did not based him to the provision attorney’s fees the attempted payment, of payment, or on his summary judgment, proposed order and by him to the on another note is, therefore, precluded that he and in receiver- National also Western support In raising appeal. the issue on FDIC, especially in view ship to thereof, appellee follows from quotes as the note restriction Dennis, (Wyo. Dennis 1984) (citations emphasis omitted and add ed): ATTORNEY’S FEES ordinarily consider con- will “[W]e only Attorney’s fees are recoverable of error the trial court tentions unless specific statutory is or contrac- when there apprised has first been thereof and Teton tual authorization therefor. UNC alleged the opportunity an to rule on Exploration Drilling, Inc. usually apprised The trial error. court is (Wyo.1989); Rocky Moun- objection the error to- means Inc., Helicopters, Freight, Air tain support gether with reasons in the case, In this (Wyo.1989). objection.” (contract) specifically the note authorized requiring purpose A 404 of Rule collection, includ- recovery of “all costs of non-prevailing is to proposed give order attorney’s not limited but to alleged party opportunity object an to the Lender fees thereto incurred order, the trial errors and to of such on account collection.” opportunity an to make neces- question of at sary objection “the contends correction. In his ap- proposed summary judgment, determined order and torney’s fees should be Dog pellant “Objection recited: is further made citing Greenough v. Prairie jury,” going the basis that the matters Ranch, Inc., (Wyo.1975) in on Judgment should tried before a recog Greenough, thereof. In we including attorney’s fees.” jury, attorney’s the determination of fees nized question decided to be a factual objection is to a refusal submit and each individual the evidence facts of attorney’s jury, fees to a held but we the determination evidence of is not to the failure to submit court. was remanded one The case the reasonableness of the fees. instructions to to the district court with concerning preserve any failed to error make the determination. allowance of attorney’s fees for reasonableness attorney’s and fees the amount objec- If the consideration this court. trial within the discretion of the court. tion had been to the failure submit Exploration concerning reasonableness of Drilling, Teton evidence UNC fees, our affirmance in this case would awarded at the rate of 21 per an- fees, excepted attorney’s have the issue of num.

and we would have remanded the case for Affirmed. hearing as to their reasonableness. We emphasize pref- make this comment to our THOMAS,J., filed specially concurring proper supporting erence for evidence of opinion URBIGKIT, C.J., in which fees, attorney’s the reasonableness of rath- GOLDEN, J., joined. er than an between the THOMAS, Justice, concurring specially, object thereto. failure to in this in- with whom Chief agreement, stance amounts to such and the GOLDEN, Justice, join. area is one which there should be no I concur without reservation in the *4 suggestion between attor- opinion of the court as to all issues other neys concerning relationship fees. The than of the attorney fee. I parties attorneys in this case ne- had a concern sufficiency about the of the gates suggestion, such but the bar is cau- record attorney to establish the fee that respect. tioned in this the court awarded in this case under our prior See, cases. e.g., Explo UNC Teton INTEREST ration Drilling, l-16-102(b) Wyo.Stat. as amend 584 (Wyo.1989); Albrecht v. Zwaanshoek 1988, 9, ed effective June Holding V., Financiering, En B. judgment “If the decree or is founded Homes, Miles v. CEC a contract and all to the con- 753 P.2d 1021 and Down agreed rate, tract to interest at a certain Stiles, (Wyo. 1981). 635 P.2d 808 the rate of interest on the decree or That concern has been resolved subse judgment correspond shall to the terms quent pleadings, filed in this that of the contract.” attorney establish that fee that was upon provided The note sued for interest awarded has been at 21 percent per the rate of annum after circumstances, Under the I maturity July its date of 1986. Pursu- am satisfied that there has been an admis ant amended, sion of the propriety correctness and the court judgment awarded interest on the attorney awarded as an fee at the 21 percent per rate of annum. Prior trial court. amendment, the statute set such

interest rate at per annum.

Appellant argues that inasmuch as the January was executed in judgment

rate of interest after percent pursuant to the statute then in H, INC., Wyoming Corporation, BAR J force. He application contends that Harger and Donald K. and Irene F. statute as improper amended is an retroac- Harger, Derivatively on Behalf of J Bar application tive of the amended statute. H, Wyoming Corporation, Appellant judgment, The interest is on the not on (Plaintiff), the note. judgment trig- was the gered application of the amended stat- JOHNSON, Appellee Joanna being applied ute. It is not retroactively to (Defendant). “ the note. ‘A statute is not necessarily retroactive because it ante- draws ” operation.’ cedent facts for Indepen- Court of Marketing Cobb, dent Producers Corp. v. 1991. (Wyo.1986) (quoting Belco Petroleum v. State Board of

Equalization, (Wyo.1978)). judgment

Interest on the properly was