No. 93-039
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
CHARLES W. OWEN,
Plaintiff and Respondent,
-vs- i
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RICHARD M. OSTRUM,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Stillwater,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
T. Thomas Singer; Moulton, Bellingham, Longo &
Mather, Billings, Montana
For Respondent:
Kenneth D. Tolliver, Jeffrey Hunnes; Wright,
Tolliver & Guthals, Billings, Montana
Submitted on Briefs: May 20, 1993
Decided: June 29, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Richard M. Ostrum (O&rum) appeals from judgment, decree of
foreclosure, and deficiency judgment entered by the Thirteenth
Judicial District Court, Stillwater County. @strum's former
partner, Charles W. Owen (Owen) brought the action to collect a
debt and foreclose a security interest in shares of stock pledged
as security for the debt. We affirm.
In 1958, Ostrum purchased a cattle ranch near Fishtail,
Montana, in Stillwater County. He operated this ranch with his
wife as a family corporation until 1977, when Owen invested in it,
receiving shares equal to 49 percent of the corporate stock.
During the next ten years, the ranch expanded, purchasing land or
leasing other land owned by Owen, and the corporation began
breeding and selling purebred Angus cattle. Owen paid the costs of
expansion through loans and capital investments, in exchange for
which he received corporate stock. Ostrum lived on the ranch and
managed it until June 1989.
In 1979, Owen and Ostrum formed a partnership called Gold
Block Angus. By 1987, Owen owned a 94 percent interest in the
partnership, and Ostrum, a six percent interest. In December 1987,
Gold Block Angus had assets valued for tax purposes at $2,601,091
and total liabilities of $4,751,072, excluding accrued interest.
The partnership owed approximately $3.7 million to Owen and
entities owned by Owen. Owen and Ostrum decided to recapitalize
Gold Block Angus by writing off approximately $2.4 million of the
2
partnership's debt to Owen and incorporating as Gold Block, Inc.
Ostrum's six-percent share of the capitalized liability was
$144,000. As he had no funds for this capital contribution, Owen
loaned him $144,000.
In exchange for the $144,000 loan, Ostrum signed a promissory
note and a security agreement. The security agreement stated that
Ostrum and Owen had agreed to transfer their interests in Gold
Block Angus, a partnership, to Gold Block, Inc., a Montana
corporation, in exchange for shares in the corporation. "In
connection with [that] agreement," the document says, Owen loaned
Ostrum $144,000 and Ostrum granted Owen a security interest in
1,200 shares of Gold Block, Inc. The security agreement described
the loan as "evidenced by that certain Promissory Note dated
December 31, 1987, which is payable on demand and which bears
interest at the rate of 9.5 percent per annum."
In June 1989, Owen announced that he intended to liquidate
Gold Block, Inc., and that Ostrum's employment as manager was
terminated to facilitate the liquidation. Ostrum left the ranch,
but Owen completed only a partial liquidation and continued to
operate the ranch.
A year later, on June 14, 1990, Owen sent Ostrum a demand
letter, stating that if Ostrum did not pay the $144,000 debt or
negotiate a repayment plan in fifteen days, action might be taken
to realize on the security by public or private sale of Ostrum's
1,200 shares. Ostrum made no payment, and Owen filed a complaint
on August 9, 1990, seeking judgment in the amount of $179,306 and
3
foreclosure of the security interest.
Ostrum moved to dismiss the complaint for failure to state a
claim upon which relief can be granted, on the grounds that Owen
had not alleged execution or delivery of the promissory note and
had not attached a copy of it to his complaint. Judge Fillner
denied this motion, having determined that Ostrum owed a debt
pursuant to the security agreement, and that the promissory note
therefore was irrelevant, but Ostrum continued to deny that he had
signed a note. In his answer to the complaint, Ostrum asserted
that Owen could not prove that a note was executed or that he was
the holder of a note, and that Owen had given no consideration for
the alleged debt.
Owen moved for partial summary judgment in August 1991, asking
the court to determine that Ostrum owed a valid debt and that Owen
had an enforceable security interest, and to determine the amount
of the debt. Ostrum argued in response that summary judgment was
improper because there were factual issues as to the existence of
the promissory note and as to whether Owen was the holder of the
note. He also contended that the only consideration he received
for his loan was his stock in Gold Block, Inc., and that by
tendering this stock he had satisfied the debt. If his 1,200
shares were not worth $144,000, Ostrum argued, then their actual
value should be determined at trial.
Judge Speare, then presiding over the District Court in
Stillwater County, granted partial summary judgment in favor of
Owen. He determined that no genuine issue of material fact existed
4
as to whether Ostrum owed Owen $144,000 or as to whether Owen had
a valid security interest in Ostrum's 1,200 shares of Gold Block,
Inc. stock, and that @strum had received consideration for the loan
in the form of reduction of the partnership's debt.
The court entered judgment and issued a decree of foreclosure,
dated August 29, 1991, ordering that Owen recover $194,032.80; that
his security interest in Ostrum's 1,200 shares of Gold Block, Inc.
stock be foreclosed; that the shares be sold at public sale; and
that Ostrum pay any deficiency remaining after the sale. In his
order, Judge Speare stated that he assumed the promissory note
never existed.
In September 1991, Owen moved for approval of the sale of
collateral, proposing to sell it by first publishing a notice in
the Stillwater Countv News and the Billings Gazette for ten days
prior to the sale, and then holding a public auction on the front
steps of the Stillwater County courthouse, probably on November 8,
1991. A financial disclosure statement would be furnished to
prospective buyers. The District Court declined to rule on this
motion, stating that it already had ordered a public sale of the
collateral and that Owen could proceed.
Ostrum filed a memorandum and affidavit opposing the proposed
sale on the grounds that it was not commercially reasonable. As
there is no market for a minority interest in a closely held
corporation, Ostrum argued, full value for his stock could not be
obtained through a public sale.
Ostrum also pointed out that Owen's proposed financial
5
disclosure statement undervalued Gold Block, Inc.'s assets and did
not include the proceeds of recent land and cattle sales. The
statement showed a negative net worth for the corporation.
According to O&rum, it had a positive net worth when he was
managing it, but under Owen's management the net worth declined by
$1 million.
A public sale was held on December 18, 1991, according to
plan, and Owen bought the 1,200 shares for $15,000. No other
buyers appeared. Owen then moved for award of attorney's fees and
determination of deficiency judgment. Ostrum, opposing the motion,
again argued that the sale was not commercially reasonable and that
Owen therefore was not entitled to a deficiency judgment.
After a hearing on February 3, 1992, at which counsel reviewed
the history of the case for Judge Baugh, the proceedings were
delayed to allow further briefing on the issue of commercial
reasonableness. Counsel then reviewed corporate financial records
at the offices of Gold Block, Inc., and its accountant. On
February 13, 1992, they found among the Gold Block, Inc. files a
photocopy of the original promissory note, signed by Ostrum on
December 31, 1987. This discovery was reported to the court,
prompting a motion from Ostrum, who pointed out that the original
note was still missing and requested indemnification to protect him
from additional claims on the same note. Ostrum also asked the
court to reconsider summary judgment and to require Owen to "meet
his burden of proof" regarding ownership of the original note.
The hearing that began on February 3 was completed on August
6
25, 1992. Judge Baugh issued findings of fact, conclusions of law,
and an order on September 8, 1992. He concluded that he was not
authorized to act as an appellate court with regard to Judge
Speare's grant of summary judgment; that the discovery of the
promissory note changed nothing, as the judgment was based on a
debt owed, not on the lost note: and that the parties' conflicting
testimony on the value of Gold Block, Inc. assets and liabilities,
market trends, and possible corporate mismanagement had revealed
nothing to support a determination that the bid price of $15,000
was unreasonable.
Concluding that the method, manner, time, place, and terms of
the stock sale were commercially reasonable, Judge Baugh issued a
deficiency judgment in the amount of $194,032.80, pursuant to the
August 1991 decree of foreclosure, less $15,000--the proceeds of
the sale--plus attorney's fees in the sum of $11,709.92, costs in
the sum of $175.55, expenses of the sale of the collateral in the
sum of $3,114.53, and interest from August 29, 1991to September 8,
1992, in the sum of $18,841.74, for a total judgment of
$212,874.54.
Two issues are raised on appeal:
1. Whether the District Court erred in granting summary
judgment on a debt memorialized in a promissory note, in the
absence of the original promissory note and without requiring
the creditor to post security.
2. Whether the District Court erred in concluding that the
sale of the collateral was commercially reasonable and that
Owen therefore was entitled to a deficiency judgment.
Did the District Court err in granting summary judgment on a
7
debt memorialized in a promissory note, in the absence of the
original promissory note and without requiring the creditor to post
security?
All three of the judges who were responsible for this case in
District Court concluded that Ostrum's debt to Owen was established
by the security agreement and that the promissory note, if it
existed at all, was irrelevant. Ostrum contends that on the
contrary, the debt was created by the note. Before he signed the
note, he argues, he might have had an obligation to make a capital
contribution to Gold Block, Inc., but the amount due, the rate of
interest, and the repayment terms were to be found only in the
promissory note. He asks this Court to reverse the District
Court's rulings on this point because the District Court relied on
the terms of the note in determining the amount of the judgment.
The first ruling on this point was made in 1990 by Judge
Fillner, who denied O&rum's motion to dismiss Owen's complaint for
failure to state a claim upon which relief can be granted. A
motion to dismiss a complaint under Rule 12(b)(6), M.R.Civ.P., may
be granted only if it appears beyond any doubt that the plaintiff
can prove no set of facts that would entitle him to relief.
Contway v. Camp (1989), 236 Mont. 169, 173, 768 P.2d 1377, 1380.
Taking Owen's allegations to be true, which meant accepting the
parties' security agreement as evidence of Ostrum's debt, Judge
Fillner properly denied the motion.
Judge Speare ruled on this issue in 1991, in his order
granting Owen's motion for summary judgment. He found that Ostrum
8
had signed a security agreement that acknowledged his debt to Owen
and that Ostrum stated in his deposition that he owed Owen
$144,000; therefore, Judge Speare concluded, "there is no genuine
issue of material fact that O&rum owes Owen $144,000.~t
Finally, Judge Bauqh reiterated his predecessors' conclusion
that Owen had sued on a debt, not on a promissory note, and refused
to reconsider summary judgment when Ostrum asked the court to do so
in 1992.
Part of Ostrum's rationale for asking the court to reconsider
summary judgment was his alleged need for indemnification pursuant
to 5 30-3-804, MCA (1989). This need did not arise until February
1992, when the parties' lawyers found the photocopy of the signed
note. Until then, Ostrum had maintained that no note existed.
Section 30-3-804, MCA (repealed in 1991) authorized but did
not compel the court to require security indemnifying an obliqor
against loss by reason of further claims on a lost, destroyed, or
stolen instrument. Owen testified that he had not indorsed the
note. As the note was payable only to Owen, it could not be
negotiated without a forged indorsement. We conclude that Judge
Baugh did not abuse his discretion in refusing to order Owen to
post security.
Summary judgment is appropriate when there is no genuine issue
of material fact and the moving party is entitled to judgment as a
matter of law. Rule 56(c), M.R.Civ.P. The initial burden of
demonstrating the absence of a genuine issue of material fact lies
with the moving party. Ravalli County Bank v. Gasvoda (1992), 253
9
Mont. 399, 401, 833 P.2d 1042, 1043. Once the moving party has met
that burden, the party opposing summary judgment must establish
that a genuine issue of material fact exists. Peschel v. Jones
(1988), 232 Mont. 516, 521, 760 P.2d 51, 54. Any inference that
can reasonably be drawn from the offered proof must be evaluated in
favor of the party opposing summary judgment. First National Bank
in Eureka v. Giles (1987), 225 Mont. 467, 733 P.2d 357.
Whether an issue of fact is material depends on the applicable
statutes. Giles, 733 P.2d at 358. In Giles, we reversed the
district court's summary judgment because the court had applied §
30-3-304, MCA, without resolving the threshold issue of whether the
defendant in fact had authority to indorse her husband's Veterans'
Administration disability checks. Here, the District Court applied
§ 30-3-804, MCA (1989), which refers to missing negotiable
instruments; no threshold factual issue existed because both
parties agreed that the original promissory note was missing.
Section 30-3-804, MCA (1989), provides that the owner of a
missing instrument may recover upon proof of (1) ownership, (2) the
facts that prevent production of the instrument, and (3) the terms
of the instrument. Here, proof of ownership and of the terms of
the note was supplied in the parties' security agreement, which was
attached to Owen's complaint. Owen testified that the original
note was lost, and provided a photocopy. We hold that Owen met his
burden of proof as to the validity of Ostrum's debt, and that he
was entitled to judgment as a matter of law.
10
II
Did the District Court err in concluding that the sale of the
collateral was commercially reasonable and that Owen therefore was
entitled to a deficiency judgment?
Ostrum argues that a public auction is not a commercially
reasonable sale of a minority interest in a closely held
corporation, because there is no market for a minority interest in
a closely held corporation. He points out that Judge Baugh reached
the same conclusion, during the February 1992 hearing, but
nevertheless concluded that Owen had met his burden of establishing
that the method, manner, time, place and terms of the stock sale
were commercially reasonable.
Section 30-9-504(3)(a), MCA, sets forth the requirements for
disposition of collateral after default:
Disposition of the collateral may be by public or private
proceedings . . . . Sale or other disposition may be as
a unit or in parcels and at any time and place and on any
terms, but every aspect of the disposition including the
method, manner, time, place, and terms must be
commercially reasonable.
Ostrum contends that a public auction is not an appropriate method
of disposing of a minority interest in a closely held corporation,
as the stock is unlikely to be valuable to anyone other than the
majority shareholder. Judge Baugh said much the same thing in his
order, but he concluded, nevertheless, that the 'sale was not
commercially unreasonable.
Ostrum objected to the sale but did not suggest an alternative
method, manner, time, or place. He complained that the corporation
had been undervalued for purposes of the sale, but he did not
11
attempt to establish an alternative value, nor did he demonstrate
to the court's satisfaction that the $15,000 price paid by Owen for
O&rum's shares was not "fair market value." On appeal, Ostrum
argues that $15,000 was not a fair price for the shares and that
the value of his stock in January 1988, allegedly $144,000, was the
best measure of its value in November 1991.
We addressed sale price as a factor in assessing the
commercially reasonable disposition of collateral in a 1983 case
that bears some resemblance to this one. Dulan v. Montana National
Bank of Roundup (1983), 203 Mont. 177, 661 P.2d 28. The appellant,
Dulan, pledged the stock of his incorporated photography business
as collateral for a loan from the bank. Before renewing the
promissory note a year later, he sold the corporation to a third
party and placed the stock in escrow. The renewal note was secured
by assignment of the buyer's note to Dulan. When the buyer
defaulted, the bank demanded payment of the balance due on Dulan's
original loan. Dulan did not make the payment, and the bank sold
the stock, after notice to Dulan, to the buyer for the balance due
on Dulan's note. This was only $1,500, a fraction of the $8,500
still due under Dulan's contract with the buyer.
Dulan challenged the sale of the stock on the grounds that the
price was not commercially reasonable. He claimed that the
corporation's assets had been valued at $22,280 the year before the
sale, though testimony also was offered to show that the value had
declined after the buyer took over the business. The district
court concluded, and we affirmed, that Dulan did not meet his
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burden of establishing that the stock was worth more than $1,500.
Here, Ostrum offered numerous estimates of the value of Gold
Block, Inc. assets, particularly its land and registered cattle,
but he did not provide an estimate of fair market value of the
stock or bid on it himself. The District Court decided that in
view of the negative net worth shown on the financial disclosure
statement and the fact that only six percent of the shares were
being offered, $15,000 was a reasonable price.
We hold that the District Court did not abuse its discretion
in accepting the bid price in the absence of evidence as to the
fair market value of the shares. See Carpenters-Employers
Retirement Trust Fund v. Galleria Partnership (1991), 250 Mont.
175, 819 P.2d 158 (district court did not abuse its discretion in
disregarding an estimated value of the defendant's real property
which was not an appraisal, but merely a "probable approach" based
on data submitted by a certified appraiser).
This Court has limited or barred recovery of a deficiency
judgment in cases where the secured party did not meet the notice
requirement of 5 30-g-504(3), MCA. See Ottersen v. Rubick (1990),
246 Mont. 93, 803 P.2d 1066, and the cases cited therein. Here, in
contrast, the secured party--Owen--mailed notice of the time,
place, and manner of sale to Ostrum ten days before the date of the
sale, and in addition published notices in the Stillwater County
News and the Billinqs Gazette. Notice of public sale was posted in
four locations in Stillwater County seven days prior to sale.
We hold that the District Court did not err in concluding that
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the sale of O&rum's 1,200 shares of Gold Block, Inc. stock was
commercially reasonable, and that Owen therefore was entitled to a
deficiency judgment.
Affirmed.
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June 29, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
T. Thomas Singer
MOULTON, BELLINGHAM, LONG0 & MATHER, P.C.
P.O. Box 2559
Billings, MT 59103
Kenneth D. Tolliver
Jeffery A. Hunnes
WRIGHT, TOLLIVER & GUTHALS
P.O. BOX 1977
Billings, MT 59103
ED SMITH
CLERK OF THE SUPREME COURT
STATE $)F MONTANA