NO. 94-506
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
MARK AHRENS and BRENDA AHRENS,
Plaintiffs and Appellants,
v.
WILLIAM KIRK COTTLE,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Rienne H. McElyea, Berg, Lilly, Andriolo
& Tollefsen, Bozeman, Montana
For Respondent:
J. David Penwell, Attorney at Law,
Bozeman, Montana
Submitted on Briefs: March 9, 1995
Decided: June 15, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellants Mark and Brenda Ahrens appeal from an order of the
Eighteenth Judicial District Court, Gallatin County, granting
summary judgment in favor of respondent William Kirk Cottle.
We affirm.
The issues on appeal are:
1. Did the District Court err in concluding that appellants
failed to comply with the notice of default provisions contained in
the parties' contract for the sale of real property?
2. Did the District Court err in concluding that appellants
waived their right to terminate their contract with respondent and
regain possession of real property?
3. Did the District Court err in not awarding attorney fees
to appellants?
On April 15, 1988, appellants sold a home by contract for deed
to respondent for $37,000. Respondent made a $150 down payment and
agreed to pay $3,600, at eight percent interest, in monthly
installments of $100 commencing May 1, 1988. Respondent
satisfactorily performed this portion of the contract. In
addition, respondent agreed to assume the balance of appellants'
monthly payments to the mortgage lienholder, Carteret Federal
Savings Bank.
Respondent failed to make the April and May 1993 payments to
Carteret. As a result, on May 21, 1993, appellants attempted to
serve respondent with a notice of default by taping a copy of the
2
notice to the back door of respondent's home. On June 9, 1993,
appellants personally served respondent with a notice of
acceleration of the contract. On June 14, 1993, respondent cured
the April and May 1993 defaults. Respondent failed to make the
payments for September, October, and November 1993. Appellants
made these payments to Carteret without serving respondent with
notice of default. In December 1993, respondent cured the
September, October, and November 1993 defaults by making payment to
Carteret.
Appellants filed suit on November 12, 1993, seeking to cancel
the contract for deed and to reclaim possession of the property.
Respondent and appellants filed motions for summary judgment.
After a hearing on the motions the District Court issued its
findings of fact, conclusions of law, and order granting
respondent's motion for summary judgment. As of the hearing for
summary judgment, all payments were current. On August 25, 1994,
the District Court entered its judgment awarding attorney fees to
respondent. It is from the District Court's order granting summary
judgment to respondent that appellants appeals.
ISSUE 1
Did the District Court err in concluding that appellants
failed to comply with the notice provisions contained in the
parties' contract for the sale of real property?
We review conclusions of law to determine whether the district
court's interpretation of the law was correct. In re Marriage of
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Barnard (1994), 264 Mont. 103, 107, 870 P.2d 91, 93; In re Marriage
of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619.
Paragraph 13 of the parties' contract for deed provides that
all notices shall be deemed to be properly given if delivered in
writing personally or sent by registered or certified mail. The
District Court concluded that appellants did not comply with the
notice provisions of the contract for deed by posting the notice of
default to respondent's back door.
Appellants rely on Christensen v. Hunt (1966), 147 Mont. 484,
414 P.2d 648, Hares v. Nelson (1981), 195 Mont. 463, 637 P.2d 19,
and LeClair v. Reitner (1988), 233 Mont. 332, 760 P.2d 740, to
support their argument that Montana case law has consistently held
that the failure to adhere to the technical requirements of notice
pursuant to a contract is immaterial if an individual has knowledge
of the notice. A review of Christensen, Hares, and LeClair shows
that they are distinguishable from the present case.
In Christensen, the default provision in a contract for deed
required that the seller send the notice of default to the address
provided for in the contract. The notice of default was delivered
to the buyer at an address other than the one listed in the
contract. We concluded that sending the notice to the alternative
address was a technical error that did not prejudice the rights of
the buyer who received the notice at the address to which it was
delivered.
4
In Hares, we affirmed the district court's termination of a
contract for deed and granted the seller possession of the
property. The buyer argued that he did not receive notice of
default pursuant to the terms of the contract which was to be sent
by registered mail. The buyer failed to retrieve the registered
letter at the post office even though he knew the letter was
waiting for him.
In an action for termination of a contract for deed, the buyer
in LeClair argued that the notice of default was defective because
the copy of the notice he received was not dated. We concluded
that the terms of the contract for deed did not require that the
notice be dated in a certain way, except to specify that service by
mail was complete upon deposit in a post office. The buyer
acknowledged receiving the notice by certified mail and was not
prejudiced by the failure to date the notice.
By contrast, appellants in the present case attempted to serve
respondent by posting the notice to his back door despite the
contract's requirement of personal service or service by mail.
While respondent testified that he eventually found and read the
notice, he could not identify exactly how long after the notice had
been posted to his back door that he discovered it.
Appellants argue that posting the notice on respondent's back
door afforded him the same notice he would have received had
appellants personally delivered or mailed the notice of default.
We disagree.
5
Posting the notice of default to respondent's back door
constituted a material, rather than a technical, flaw in service.
Under the terms of the contract for deed, if the buyer fails to
cure a default within 15 days after receiving notice of default,
the seller has the right to give the buyer written notice of
acceleration. Consequently, under the terms of the contract, a
notice of acceleration is only valid if it is preceded by proper
service of the notice of default which then triggers the 15 day
default period. The contract is clear as to the two proper methods
of service.
Appellants posted the notice of default on respondent's back
door on May 21, 1993. Had respondent been properly served on
May 21, he would have had until June 5 to cure any defaults. Had
the defaults remained uncured thereafter, appellants were entitled
to accelerate the obligation under the contract. Believing that
respondent had been properly served with notice of default, and
knowing that respondent had not cured the April and May defaults
within the 15 day period, appellants served respondent with notice
of acceleration on June 9, 1993. However, respondent cured the
April and May defaults on June 14, 1993, after discovering the
notice of default posted on his back door sometime in May.
We hold that the District Court did not err in concluding that
appellants failed to comply with the notice provisions contained in
the parties' contract for the sale of real property.
6
ISSUE 2
Did the District Court err in concluding that appellants
waived their right to terminate their contract with respondent and
regain possession of the property?
We apply the same standard of review to Issue 2 that we
applied to Issue 1.
Respondent failed to make the September, October, and November
1993 payments to Carteret. After being so informed by Carteret,
appellants made those payments to Carteret without first serving
respondent with notice of default and without informing respondent
that they made the late payments. In addition, appellants did not
instruct Carteret to refrain from accepting further payments from
respondent. In December 1993, respondent brought the contract
current by making the September, October, and November payments to
Carteret. As a result, Carteret received double payments for
September, October, and November 1993.
The District Court concluded that:
The acceptance of a payment on a contract after the
seller has declared or attempted to declare a default
constitutes a waiver of the default and such waiver
denies to the seller the right of the seller to sue for
acceleration of the contract. Bailey v. Lilly (1983),
205 Mont. 35, 667 P.2d 933. See also Shultz v. Campbell
(1966), 147 Mont. 439, 413 P.2d 879.
Therefore, the [appellants'] action to foreclose the
contract must be dismissed because of a waiver by the
[appellants] in accepting payments under the contract.
The [appellants] claim that Carteret, not they, accepted
the payments made by the [respondent] to Carteret and
made no effort to advise Carteret that the [appellants]
were attempting to terminate the contract and that
Carteret was not to accept such payments.
7
Appellants argue that they did not waive their right to
terminate the contract because they did not have the ability to
direct whether Carteret accepted or retained the late payments from
respondent. There is nothing in the record to show that appellants
were powerless to notify Carteret not to accept further payments
from respondent. However, appellants were not required under the
contract to notify the bank to refrain from accepting further
payments from respondent. Under the terms of the contract,
appellants were required to first serve respondent with a notice of
default as a precondition to serving a notice of acceleration.
Appellants failed to properly serve respondent with a notice of
default after the April and May defaults, and appellants failed to
serve respondent with any notice of default after the September,
October, and November defaults.
Similarly, we are not persuaded by appellants' argument that
waiver did not occur because Carteret, not appellants, accepted and
retained respondent's delinquent payments. The contract for deed
shows that respondent agreed to make appellants' mortgage payments
directly to the mortgage lien holder, Carteret. Consequently, a
mortgage payment from respondent to Carteret in satisfaction of
appellants' obligation to Carteret, is the equivalent of a payment
from respondent to appellants. As a result, it is irrelevant that
respondent's delinquent payments were accepted and retained by
Carteret, rather than by appellants. What is relevant is the fact
that because respondent had not been served with notice of default,
he made payments to Carteret in satisfaction of the underlying
obligation, and those payments were accepted and retained. Any
defaults that may have occurred were cured when respondent brought
all payments to date.
We hold that the District Court did not err in concluding that
appellants waived their right to terminate their contract with
respondent and regain possession of the property.
ISSUE 3
Did the District Court err in not awarding attorney fees to
appellants?
Appellants asked for attorney fees based on the alleged
defaults by respondent. However, as we have held that appellants
failed to give any proper notices of default, there is no
obligation to pay attorney fees under the circumstances.
We affirm.
Justice
We concur:
9
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion. As a result of this
decision, technical form is elevated over substance, while
substantial justice is avoided, and the sellers' credit rating
continues to be jeopardized because of the buyer's failure to
comply with the terms of his contract.
NOTICE COMPLIANCE
The contract for sale of real estate, which was executed by
the parties, provides in paragraph 12 that when the buyer fails to
make payments due under the contract within 15 days of the due
date, the sellers have the right to give the buyer notice that the
payment must be made within 15 days from the date of notice. If
notice is given and payments are not made within 15 days, the
sellers have the right to accelerate all payments called for under
the terms of the contract, and the balance of the principal, along
with interest then due, must be paid within 15 days from the notice
of acceleration. If the balance is not paid within the provided
time, the sellers have the right to terminate the contract.
Paragraph 13, as noted by the majority, requires that notice
be delivered in writing personally or sent by registered or
certified mail to the buyer.
In this case, notice was delivered to the buyer at his place
of residence by posting it on the door to his home. The notice was
dated May 21, 1993, and was delivered on May 25. In the notice,
Cottle was notified that he was in default by failing to make the
payments that were due on April 1 and May 1, 1993. He was also
10
notified that unless he corrected the default within 15 days, that
the sellers had the right to accelerate the amounts due under the
contract and declare the entire balance due. Cattle understood the
substance of the notice, and eventually presented it to his
attorney. However, his default was not cured within 15 days from
the date on which the notice was delivered. He did not make the
April and May payments until June 14, 1993.
The majority makes much of the fact that Cottle may not have
had actual notice 15 days before he actually cured his default.
However, a reasonable inference from the facts which were proven is
that Cattle did have notice more than 15 days before actual payment
was made. The affidavit of the Ahrens' process server established
that the notice was posted on the door to Cattle's home on May 25,
a full 19 days before payment was made. Cottle offered no evidence
to suggest that he did not observe the notice on the same day, or
reasonably soon after it was posted. In fact, he admitted that he
actually received the notice in May, which means that he had a
minimum of 14 days' notice before he made payment. The fact that
Cottle suffered no actual prejudice from the manner in which notice
was delivered is best illustrated by his own testimony, which was
as follows:
Q. Okay. Can you tell me the circumstances of when
you found a document at your house?
A. There was an envelope taped to my door.
. . . .
Q. And would this have been in the springtime?
11
A. Was it May? Yeah.
.
Q. Did you open the envelope?
A. Yes.
Q. Okay. And do you remember what you found inside?
A. I believe there was a copy of a Notice of Default.
Q. Did you read the document?
A. Yes, I did.
Q. What did you do with the document?
A. Put it on my desk.
Q. Do you still have that document?
A. No, I do not.
Q. What happened to it?
A. I believe my attorney has it.
Q. So you gave him the document that you had?
A. Yes.
. . . .
Q. So when you received the Notice of Default in May
of 1993, you understood that you were in default
under the terms of the contract?
A. Yes.
Q. When you received this document that was posted to
your door, the Deposition Exhibit 13, were you late
in your payments?
A. I don't remember.
Q. Given what we've just all gone through in this
sheet, which explains your payment history,
Deposition Exhibit 4, doesn't that characterize
that you were late in your payments?
12
A. Yes.
I would conclude that since Cattle had actual knowledge of his
default, and had actual receipt of the notice of default
sufficiently in advance of the date on which he was required to
cure the default, that the notice and default terms of the parties'
contract were substantially complied with, and that to the extent
there was any technical deviation from the specific language in the
contract, that deviation was in no way material nor prejudicial to
Cottle. This conclusion is consistent with our prior decisions in
Christensenv.Hunt (1966), 147 Mont. 484, 414 P.2d 648, and LeCIairv.Reiter
(1988), 233 Mont. 332, 760 P.2d 740. While it is true, as pointed
out in the majority opinion, that neither of these cases have
precisely the same facts as this case, the principle involved is
identical. In both cases, we held that a technical deviation from
the default notice requirements in a contract cannot be asserted by
the buyer as a defense to termination of the contract where his or
her rights have not been prejudiced. That is exactly the situation
here. While Cottle did not receive written notice by registered
mail, he received written notice at the same location where the
registered mail would have been delivered, and he received it well
in advance of the date by which he was notified that his default
must be cured. Therefore, he suffered absolutely no prejudice
based on the manner in which the notice was delivered.
For these reasons, I would reverse the District Court's
conclusion that as a matter of law the Ahrens are unable to
13
terminate their contract with Cottle because of their failure to
comply with the notice provisions in their contract.
WAIVER
The principles of waiver, when correctly applied, are based on
principles of fairness. However, the doctrine of waiver was never
intended to reduce commercial transactions to some form of the game
of "gotcha." Yet, that is exactly the effect of the majority
decision.
"'Waiver is a voluntary and intentional relinquishment of a
known right, or claim or privilege.'" Carpenters-Employers Trust Fund v.
Gall&a Partnership (19891, 239 Mont. 250, 259, 780 P.2d 608, 613
(quoting Thielv. Johnson (1985), 219 Mont. 271, 274, 711 P.2d 829,
831). Nothing that the Ahrens did even remotely resembled the
intentional relinquishment of a known right.
Cattle's late payments were not sent to, nor kept by, the
Ahrens. They were sent to the Carteret Federal Savings Bank to
satisfy the Ahrens' monthly payment obligations. The Ahrens had no
control over the fact that the payments were sent; they had no
control over Carteret's acceptance of the payments; they didn't
even know that the payments were made. They had no affirmative
obligation under the principles of waiver to affirmatively notify
Carteret that the payments would not be accepted. Furthermore, no
such obligation should be imposed. The Ahrens were the obligors in
the contract with Carteret. Their credit rating had already been
severely damaged by Cattle's frequent failure to make timely
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payments, and they should not have had to make payments for
property they did not possess while they were attempting to recover
it.
While the majority may assume, as it has in the past, that
equity favors the avoidance of a forfeiture, the equities in this
case are quite to the contrary. The hardship that this contractual
relationship, and this Court's decision, create for the Ahrens is
best illustrated by the following portions of the affidavit of
Brenda Ahrens submitted on August 1, 1994:
6. Mr. Cottle did not assume the Carteret Federal
Savings Bank note. Since 1990, Mr. Cottle has been late
in payments on 14 separate occasions. He has driven this
note into foreclosure on three separate occasions.
7. I have no control over Carteret Federal Savings
Bank. Carteret accepts payments without my approval or
authorization. If the contract is not paid, they will
automatically take the note into foreclosure proceedings.
8. Because my name is on the note, my credit has
been completely destroyed by Mr. Cattle's failure to
timely make his payments.
. . .
11. In October, 1993, I was advised that Mr.
Cattle's September, 1993, check bounced andwas returned.
The September, October, November, and December, 1993,
payments were not made by Mr. Cottle and I was forced to
pay ONE THOUSAND SEVEN HUNDRED NINETY-ONE AND 56/100
DOLLARS ($1,791.56) in order to keep the property from
foreclosure . .
12. My credit has been destroyed by Mr. Cattle's
failure to make timely payments and his repeated system
of driving this matter into foreclosure.
For these reasons, I conclude that there was no waiver of
Cattle's default based on any reasonable definition of that term.
I would reverse the order of the District Court which granted
15
Cattle's motion for summary judgment, and the District Court order
which denied the Ahrens' motion for summary judgment, and I would
remand to the District Court for a determination of the attorney
fees to which the Ahrens are entitled in this matter.
J 6tt'ice
16
June 15, 1995
Cl?RTlFTC!ATF? OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Rienne H. McElyea
Berg, Lilly, Andriolo & Tollefsen, P.C.
910 Technology Blvd., Suite A
Bozeman MT 59715
J. David Penwell
Attorney At Law
Box 1677
Bozeman MT 59715-1677
ED SMITH
CLERK OF THE SUPREME COURT
STATE OFT MONTANA