No. 01437
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 27
LEWISTOWN PROPANE COMPANY,
a Montana Corporation,
PlaintiffJAppellant,
V.
TOM H. FORD, individually and d/b/a
FORD CATTLE COMPANY; VICKI EHLERT
and ROBERT EHLERT, husband and wife,
Defendants/Respondents/Cross-Appellants.
RAYMOND BECKY,
IntervenoriRespondent.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jon A. Oldenburg, Attorney at Law, Lewistown, Montana
For Respondent Ford:
Allen Beck, Attorney at Law, Billings, Montana
For Intervenor:
Lori A. Armstrong, Attorney at Law, Butte, Montana
Submitted on Briefs: December 6,200l
Decided: February 25, 2002
Filed:
Justice Jim Regnier delivered the Opinion of the Court.
111 Lewistown Propane Company(“Lewistown Propane”) brought an action against Tom
Ford to collect on an unpaid account. After Ford executed a Confession of Judgment,
Lewistown Propane obtained a writ of execution and levied execution on an aircraft.
Raymond Becky sought to intervene, claiming that Ford had transferred the plane to him
before Lewistown Propane levied on the aircraft. The Tenth Judicial District Court, Fergus
County, issued an order permanently restraining Lewistown Propane from executing on the
aircraft. Lewistown Propane appeals and we reverse.
ll2 The following issue is dispositive of this appeal:
73 Did the District Court err in ruling that no lienable interest remains with a judgment
creditor when a judgment debtor conveys an airplane to a third party prior to an entry of
judgment without registering the conveyance with the Federal Aviation Administration?
PROCEDURAL AND FACTUAL BACKGROLJND
84 The facts surrounding this matter are largely undisputed. Lewistown Propane is a
Montana corporation that sells and provides propane, fertilizer and other similar products to
the public. Ford, or his family members, purchased products from Lewistown Propane for
which they have never paid. On September 8, 1999, Ford, as an individual and on behalf of
the Ford Cattle Company, executed a Promissory Note and Agreement (the “Promissory
Note”). Under the terms of the Promissory Note, Ford agreed to pay Lewistown Propane
$28,503.62 within six months of the date ofthe note, along with interest of 10% per annum.
2
l/5 On Dcccmbcr 14, 1999, Lewistown Propane tiled a complaint against Ford and his
family members for collection of the Promissory Note and payment of its account receivable.
Ford subsequently filed a Confession ofJudgment (the “Confession”) with the District Court.
The Confession was dated March 7, 2000, one day before the due date of the Promissory
Note, and was for $28,503.62 plus interest.
W During this time, Raymond Becky had allegedly been helping Ford to refinance his
debt. On February 11,2000, Ford sold three pieces of farm machinery and a 1974 Super
Piper Cub Aircraft PA18-150 (the “Piper aircraft”) to Becky. Neither Ford nor Raymond
Becky notified the State ofMontana or the Federal Aviation Administration (the “FAA”) that
Ford had transferred the airplane to Becky.
17 As consideration for the transfer of assets, Ford was to receive an interest in a
business venture in British Columbia, Canada, known as the Gold River Power Corporation.
To this end, Becky pledged the assets from the sale as collateral for a loan from Western
Security Bank of Butte, Montana. The funds from the sale were then wired to Canada for
use in purchasing the Gold River pulp facility. During this time, Ford retained possession
of the aircraft and farm machinery in Fergus County.
In an attempt to collect on its judgment, Lewistown Propane inquired about the
ownership of the Piper aircraft with the Montana Department OfTransportation Aeronautics
Division and the FAA. Through these records, Lewistown Propane determined that the Piper
aircraft was registered in Ford’s name, no liens or encumbrances existed against the plane
and Ford had paid the annual registration fees to the FAA. On July 7, 2000, Lewistown
3
Propane obtained a Writ of Execution and, about a week later, seized the Piper aircraft.
Lewistown Propane has had the plane in its possession since that time. On July 17, 2000,
Lewistown Propane filed a Notice of Execution Levy addressed to Ford, advising him that
it had executed on the Piper aircraft and intended to sell the plane in order to satisfy its
judgment against Ford. Upon learning of Lewistown Propane’s seizure of the aircraft, Becky
moved for permission to intervene in the case, which the District Court granted on July 24,
2000. As part of the same motion, Becky sought a stay of execution ofjudgment, which the
District Court also granted.
llg The District Court entered an Order Permanently Granting Ex Parte Motion to Stay
Execution of Judgment as it Relates to a 1974 Super Piper Cub Aircraft PA18-150 on
October 23,200O. In that order, the District Court directed Lewistown Propane to return the
aircraft to Becky. Lewistown Propane now appeals.
DISCUSSION
710 Did the District Court err in ruling that no lienable interest remains with a judgment
creditor when a judgment debtor conveys an airplane to a third party prior to an entry of
judgment without registering the conveyance with the Federal Aviation Administration?
Ill Section 503(c) of the Federal Aviation Act of 1958 requires that “every aircraft
transfer must be evidenced by an instrument, and every such instrument must be recorded,
before the rights of innocent third parties can be affected.” Philko Aviation, inc. v. Shacket
(1983), 462 U.S. 406, 409-10, 103 S. Ct. 2476, 2478, 76 L. Ed. 2d 678, 682. Congress’
purpose in creating this registration scheme was to establish a central clearing house of
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recorded titles so that a person can readily find any legal interest against an aircraft. See
Philko, 462 U.S. at 41 I, 103 S. Ct. at 2479,76 L. Ed. 2d at 683 (citing Hearings 0)~ HR 9738
Before the House Comm. on Interstate and Foreign Commerce, 75th Cong., 3d Sess., p. 407
(1938) (testimony of F. Fagg, Director of Air Commerce, Dept. of Commerce). Under this
scheme, state law determines the priorities between competing claims, but “all interests must
be federally recorded before they can obtain whatever priority to which they are entitled
under state law.” Philko, 462 U.S. at 413, 103 S. Ct. at 2480,76 L. Ed. 2d at 684. This case
thus requires us to determine the priority between a judgment creditor and a third party
purchaser under Montana law where the parties to the sale did not federally register the
conveyance.
112 While we have not yet addressed this question, several other jurisdictions have
decided this issue. A Hawaii Court of Appeals, for instance, determined that a third party
purchaser’s ownership interest in an aircraft derived through an unrecorded conveyance did
not cut off a judgment creditor’s right to levy on the aircraft. See Bank ofHonolulu v. Davids
(1985), 709 P.2d 613,619. Other courts, however, have come to an opposite conclusion on
the grounds that a judgment creditor does not have the same claim as would an innocent
purchaser for value because a judgment creditor derives his rights from the debtor. In these
cases, the courts have reasoned that because a debtor does not have a claim for the aircraft
against the party to whom he sold it, the creditor, in turn, no longer has a claim for the
aircraft. See, e.g., Compass Ins. Co. v. Moore (sch Cir. 1986), 806 F.2d 796; General
Dynamics Corp. v. Znntop Int ‘I Airlines (Ark. Ct. App. 1985), 708 P.2d 773.
5
1113 Turning to Montana law, Ford and Becky urge us to follow our decisions involving
the conveyance of real property. Under this line of cases, judgment liens on real property
only attach to the actual interest of the judgment debtor. See, e.g., Hannnl~ v. Martinson
(1988), 232 Mont. 469,472, 758 P.2d 276, 278-79 (holding that a sale of real property cut
off a judgment creditor’s lien because a judgment lien can only attach to the actual interest
of the judgment debtor); Vaughn v. Schmalsle (1890), 10 Mont. 186, 195,25 P. 102, 103
(noting that an unrecorded mortgage supersedes a subsequently acquired judgment lien
because a judgment creditor does not acquire superior rights to the debtor’s assets than the
debtor had when the judgment was rendered). Therefore, Ford and Becky argue that because
the sale was valid between them, Lewistown Propane no longer has an interest in the Piper
aircraft.
114 The Piper aircraft, however, is personal property. We thus conclude that a more
analogous precedent is a previous decision of ours regarding the conveyance of personal
property. In Kovacich v. Norgaard(1986), 221 Mont. 26,716 P.2d 633, ajudgment creditor
attempted to levy on a truck owned by a judgment debtor. Before the creditor could levy on
the truck, the debtor conveyed the truck to a third party. As with the case now before us, the
parties to the conveyance failed to properly register the change in ownership. The creditor
eventually levied on the truck, but the debtor obtained a writ of prohibition to stop the sale.
The district court set aside the writ of prohibition and we affirmed the court’s ruling. In
reaching our conclusion, we noted that the parties’ failure to follow the proper procedure for
transferring title in relation to third parties was particularly significant. See Kovncich, 221
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Mont. at 28,7 I6 P.2d at 634. We reasoned that “[cjreditors and subsequent purchasers must
be protected from failure of a secured party to tile proof of a security interest. Likewise,
judgment creditors are entitled to rely on ownership as reflected in the division’s records.”
Kovacich, 221 Mont. at 28,716 P.2d at 635.
715 Here, it is uncontested that Becky and Ford failed to follow the proper procedure
under Federal law for conveying an aircraft. Therefore, applying Kovacich by analogy, we
conclude that Lewistown Propane, as ajudgment creditor, was entitled to rely on the records
of the FAA. Because Becky’s ownership interest was unrecorded at the time of Lewistown
Propane’s execution of the levy, Becky’s interest is thus invalid as to Lewistown Propane and
could not cut of its right to levy on the aircraft.
116 Ford and Becky argue that, because they have since recorded the transfer with the
FAA and Lewistown Propane has not yet recorded its interest in the Piper aircraft, their
interest in the plane is now superior. This argument is without merit because a failure to
record affects the rights of innocent thirdparties. SeePhiUco, 462 U.S. at 409-10, 103 S. Ct.
at 2478, 76 L. Ed. 2d at 682. Ford and Becky, however, were both clearly aware that
Lewistown Propane had levied on the aircraft when they registered the transfer with the
FAA. Therefore, they are not innocent third parties and may not rely on the federal recording
statute to defeat Lewistown Propane’s claim.
1117 R e v e r s e d .
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We concur: