No. 92-338
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
JUNELLE HARTMAN,
Plaintiff and Appellant,
v.
SUBARU OF BILLINGS, INC. ,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roy W. Johnson, Attorney at Law,
Billings, Montana
For Respondent:
Robert Edd Lee, Crowley, Haughey, Hanson,
Toole & Dietrich, Billings, Montana
Submitted on Briefs: November 12, 1992
.. Decided: December 30, 1992
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Junelle Hartman appeals from the Findings of Fact
and Conclusions of Law and Order of the Thirteenth Judicial
District Court, Yellowstone County, ruling that appellant did not
effectively revoke her acceptance of her vehicle, that she received
adequate notice by First Interstate Bank of Billings of its intent
to sell her vehicle to satisfy the loan used to purchase the
vehicle, and that respondent is entitled to attorney fees.
We affirm.
Appellant presents three issues for this Court to review.
1. Was appellant entitled to revoke her acceptance of a used
vehicle purchased "as is" due to a non-conformity of goods pursuant
to 5 30-2-608, MCA?
2. Was appellant given adequate notice of the sale of the
returned vehicle?
3. Was respondent entitled to attorney fees?
On October 11, 1988, appellant purchased a 1984 Cutlass Cierra
from respondent Subaru of Billings. The vehicle was sold "as is,"
with no warranties, for $9,995. Appellant traded in her 1984
Oldsmobile Omega and borrowed $9,058.90 from First Interstate Bank
of Billings for the purchase. First Interstate placed a lien on
the vehicle to ensure payment of the loan. Appellant also
purchased a service contract on the vehicle from respondent.
Apparently, appellant began having problems with the vehicle,
mainly that the engine did not idle properly. She returned the
2
vehicle to respondent on several occasions for various repairs
under the service contract, but respondent was unsuccessful in
correcting the problem with the idle. On one occasion, appellant
had to use a rental car to go to a wedding in Nevada because the
vehicle was in the shop for repairs.
During this period, appellant had difficulty making the loan
payments. In April 1989, she defaulted on her loan for the
vehicle. On May 19, 1989, appellant returned the vehicle to
respondent and also hand-deliveredto an employee of respondent her
notice of revocation of the vehicle on the basis of nonconformity.
On May 23, 1989, First Interstate Bank mailed notice to
appellant that the bank had repossessed the vehicle, which would be
offered for sale on or after June 2, 1989. Appellant signed a
return receipt of delivery of the letter on May 30, 1989. On
June 21, 1989, First Interstate assigned the loan to respondent.
Respondent sold the vehicle on November 10, 1989, for $4950.
Appellant still owed approximately $8787 on the vehicle loan.
Respondent spent $51.47 reconditioning the vehicle for resale.
Respondent credited appellant $265 from the unused portion of the
service contract. Appellant owed a deficiency judgment of
approximately $3623 to respondent.
On August 31, 1990, appellant filed her complaint in District
Court. On June 11, 1991, a bench trial was held on the matter.
Was appellant entitled to revoke her acceptance of a used
vehicle purchased "as is" due to a nonconformity of goods pursuant
to 5 30-2-608, MCA?
Section 30-2-608(2), MCA, provides:
Revocation of acceptance must occur within a
reasonable time after the buyer discovers or should have
discovered the ground for it and before any substantial
change in condition of the goods which is not caused by
their own defects. It is not effective until the buyer
notifies the seller of it.
In this instance, appellant gave her notice of revocation on
May 19, 1989, one month after she defaulted on the bank loan in
April 1989. We hold that as a matter of law appellant's notice of
revocation was not timely.
Was appellant given adequate notice of the sale of the
returned vehicle?
Section 30-9-504(3)(a), MCA, states in pertinent part:
[Rleasonable notification of the time and place of any
public sale or reasonable notification of the time after
which anv ~rivatesale or other intended diSDoSiti0n is
to be made shall be sent by the secured party to the
debtor .... [Emphasis added.]
Respondent determined that the highest and best means of
assuring appellant the fullest benefit of the value of the
collateral would be accomplished by disposing of the vehicle
through a retail lot sale. Although the security agreement called
for appellant to receive ten days notice prior to the sale of the
property, appellant received actual notice of the time of sale only
three days before respondent intended to sell the vehicle. Even
so, the sale of the vehicle occurred approximately six months after
the intended date of the sale. Appellant was not prejudiced by the
notice because she had ample opportunity to cure her debt and
reclaim the vehicle. We hold that appellant received adequate
notice.
I11
Was respondent entitled to attorney fees?
The financing agreement signed by appellant and First
Interstate Bank of Billings provided for attorney fees in the event
there was a breach of contract. The District Court awarded
respondent $1155 in fees. We hold that it was proper for the
District Court to grant attorney fees to respondent and that those
fees were reasonable.
We affirm.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
Justice
We concur:
December 30, 1992
CERTIFICATE OF SERVICE
I hereby certify that the Following order was sent by United States mail, prepaid, to the
following named:
ROY W. JOHNSON
Attorney at Law
926 Main, Suite #9
Billings, MT 59105
Robert Edd Lee
CROWLEY, HAUGHEY, HANSON, TOOLE & DlETRICH
P.O. BOX 2529
Billings, MT 59103
ED SMITH
CLERK O F THE SUPREME COURT
STATE OF MONTANA
BY:
Deputy d