Thorrez v. United Pentecostal Churc ( 1994 )

No. 93-567
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
BERNARD F. THORREZ
and MARY THORREZ,
UNITED PENTECOSTAL CHURCH OF AFR 1 2 1994
BUTTE, KENNETH E. HOGUE and
TERESA HOGUE, his wife, Z ! x;T.;fA
L
CLERK OF %!F!?Zk.~E COURr
Defendants and Respondents. G T A X Of 1!20%1
i
APPEAL FROM: ~istrictCourt of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
John Leslie Hamner, Esq., Butte, Montana
For Respondents:
Frank J. Joseph, Burgess, Joyce & Whelan,
Butte, Montana
Submitted on Briefs: March 17, 1994
Decided: A p r i l 12, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Plaintiffs Bernard F. Thorrez and Mary Thorrez appeal from an
order of summary judgment rendered by the Second Judicial District
Court, Silver Bow County. We affirm.
We restate the dispositive issue in this case as whether the
District Court erred in its finding of fact that the contract was
silent as to whether the thirty-day notice became effective upon
mailing by sellers or upon receipt by buyers.
Kenneth E. Hogue, as pastor, and his wife, Teresa Hogue, as
secretary, operate the United Pentecostal Church of Butte (Kenneth
E. Hoque, Teresa Hogue and the United Pentecostal Church of Butte
are collectively referred to as the buyers). During the latter
part of December 1987, the buyers were in search of a home.
Bernard F. Thorrez and Mary Thorrez (sellers) owned a piece of land
located in Butte which they offered to sell to the buyers. The
parties entered into a contract on December 28, 1987.
The parties' contract included the agreement that the buyers
would pay $40,000 with a $1,000 down payment and installment
payments of $395.58 due on the 10th day of each month. The
contract also provided that if the buyers
. . . fail to make the payments herein mentioned within
Thirty (30) days after the same shall have become due, or
shall at any time hereafter violate or neglect to fulfill
any of said agreements, upon Thirty (30) days written
Notice to the Buyer to make said pavments or to correct
any violation or to fulfill any of said aqreements as
aforesaid, they shall forfeit all risht or claim under
the Contract . ...
The contract further provided:
Notice:
Any Notice to be given hereunder shall be by
registered mail to the parties as follows:
SELLER: BERNARD F. THORREZ
715 South Thompson
Jackson, Michigan 49203
BUYER: UNITED PENTECOSTAL CHURCH
OF BUTTE
604 Yale Avenue
Butte, Montana 59701
The buyers failed to pay installments on the 10th of June and
the 10th of July, 1992. On August 12, 1992, the Thorrezes sent
notice by certified mail that the buyers were in default. The
buyers received the notice thirteen days later, on August 25, 1992.
On September 18, 1992, twenty-five days after the notice was
received, the buyers complied with the notice by depositing the
delinquent payments into the sellers' bank account.
Did the District Court err in finding that the contract was
silent as to whether the thirty-day notice became effective upon
mailing by sellers or upon receipt by buyers?
This Court reviews summary judgment decisions by utilizing the
same criteria the lower court used in its deliberations: whether a
disputed issue of material fact exists and whether a party is
entitled to judgment as a matter of law. Minnie v. City of Roundup
(l993), 257 Mont. 429, 431, 849 P.2d 212, 214; Rule 5 6 ( c ) ,
M.R.Civ.P.
The sellers argue that the thirty-day period should have begun
to run on the day that they mailed the default notice to the
buyers, August 12, 1992. They state that the contract provided for
notice to be sent by registered mail and that the mailing effectu-
ated valid or constructive notice.
Both parties agree there are no disputed issues of fact.
After receiving notice of default by the sellers, the buyers paid
their delinquent installment payments, thus curing the deficiency.
When determining that the buyers were entitled to summary judgment
as a matter of law, the court concluded:
Plaintiffs mailed notice of default to Defendants on
August 12, 1992, registered, with a return receipt
requested. Both the Contract for Deed and the Notice of
Default were silent as to when the 30 days would start
running -- the date of mailing or the date of receipt of
the notice. That in view of the method of delivery
chosen by Plaintiffs, the Court concludes that actual
notice was intended and the 30-day notice period did not
start running until Defendants actually received the
notice, as evidenced by the return receipt date, [August]
25, 1992.
We agree.
We conclude that the District Court's construction of the
running of the thirty-day notice period, which required actual
notice, was not erroneous. See Steer, Inc. v. Dep't of Revenue
(lggo), 245 Mont. 470, 803 P.2d 601. We therefore affirm the
District Court's order of summary judgment.
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 this Court and by a report of its result to the
We concur:
April 12, 1994
X CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
John Leslie Hamner
Attorney at Law
P.O. Box 3334
Butte, MT 59702
Frank J. Joseph
BURGESS, JOYCE & WHELAN
2801 South Montana Street
Butte, MT 59701
ED SMITH
CLERK OF THE SUPREME COURT
BY: