Colorado National Bank v. Story

No. 93-301
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
COLORADO NATIONAL BANK OF DENVER,
a National Banking Association,
Plaintiff and Respondent,
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gregory 0 Morgan, Attorney at Law, Bozeman, Montana
.
For Respondent:
Keith A. Christie; Peterson & Schofield, Billings,
Montana
Submitted on Briefs: September 9, 1993
Decided: November 2, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Defendants appeal a judgment from the Eighteenth Judicial
District Court, Gallatin County, finding them liable to the
plaintiff for money due, as well as attorney' s fees and costs. One
issue is dispositive: what statute of limitations applies under
the facts of this case?
Defendant Judy Story (Judy) applied for a Rocky Mountain
BanlcAmericard (VISA card) around January 20, 1977, under her maiden
name, Judy Johnson. The application itself contained no terms or
conditions regarding the issuance of the VISA card. The Colorado
National Bank of Denver (Bank) issued Judy a VISA card around
January 27, 1977. After Judy married, she authorized her husband,
defendant Mark Story (Mark), the use of the VISA card.
Judy and Mark both used the VISA card. Judy received
statements in the mail and both Judy and Mark made payments to the
Bank for the charges. The last payment Judy made was on October
10, 1986. On November 13, 1991, the Bank sued Mark and Judy for
$5,074.52, the amount due on the VISA card account. The Bank also
requested interest, costs and attorney's fees. Mark and Judy
raised the statute of limitations defense, arguing that the debt
was an account stated, which has a five-year statute of
limitations, and that the action was time-barred.
A bench trial was held on March 19, 1993. At trial, the Bank
introduced exhibits which included Judy's original application for
the VISA card and numerous copies of billing statements which were
sent to Judy. This was the only evidence regarding a written
2
contract which was introduced. After the trial, the District Court
entered Findings of Fact and Conclusions of Law in which it
concluded that Judy's signature upon the application for a VISA
card constituted a written acceptance of terms for a credit
extension from the Bank, and that, therefore, a written contract
existed. On that basis, the District Court concluded that an
eight-year statute of limitations applied. In addition, the
District Court found that Mark was jointly and severally liable for
the debt because he was an authorized user of the VISA card. The
District Court entered judgment for the Bank on the debt, and
awarded attorney's fees and costs. From that judgment, Mark and
Judy appeal. We reverse.
The critical issue in this appeal involves a conclusion of
law--whether the District Court properly concluded that a written
contract existed. When presented with a conclusion of law, our
standard of review is whether the trial court's interpretation is
correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470,
474, 803 P.2d 601, 603.
Section 27-2-202, MCA, provides, in pertinent part:
(1) The period prescribed for the commencement of an
action upon any contract, obligation, or liability
founded upon an instrument in writing is within 8 years.
(2) The period prescribed for the commencement of an
action upon a contract, account, or promise not founded
on an instrument in writing is within 5 years.
Pursuant to this statute, if the debt at issue was founded on a
written contract, the present action is not time-barred. However,
if the debt is an account stated, not based upon a written
contract, then the present action is time-barred.
In this case, the District Court concluded that Judy's
signature on the application for a VISA card constituted a written
contract. However, the application signed by Judy does not contain
any contract terms and there are no other writings in the record
from which contract terms can be extracted. No evidence was
introduced that sets forth the terms of any agreed-upon interest
charges or any agreed-upon terms of the repayment obligation.
Nothing with Mark's signature was introduced which would indicate
the existence of a written contract. In addition, no evidence
regarding an agreement to pay attorney's fees in the event of non-
payment is present here. A review of the record indicates that
there is no written instrument or series of writings that can, in
any way, be construed as a written contract. The statements
introduced into evidence are exactly that--statements of account--
and nothing more. There is no evidence in this case to support the
District Court's conclusion that a written contract existed.
Accordingly, the debt at issue is an account stated, and not one
founded upon a written instrument.
Because the debt at issue is an account stated and is not
based upon an instrument in writing, the five-year statute of
limitations applies. Here, the last date of payment on the account
was October 10, 1986. Therefore, the five-year period begins
running from that date. The Bank filed its complaint on November
13, 1991. Therefore, the action against Mark and Judy is time-
barred.
Given our holding that the statute of limitations bars this
action, we need not decide whether the District Court's imposition
of joint and several liability on Mark was correct.
We note that, on appeal, Mark and Judy have requested an award
of attorney's fees on the basis of 5 28-3-704, MCA, which provides
that a contractual right to attorney's fees will be treated as
reciprocal. Attorney's fees are not recoverable in a contract
action unless they are provided for in the contract or by statute.
Marshall v. State (1992), 253 Mont. 23, 27, 830 P.2d 1250, 1252.
Here, Mark and Judy dispute the presence of any written contractual
terms, and we have held that there is no written contract. There
is similarly no statutory provision which would authorize an award
of attorney's fees in this case. Therefore, Mark and Judy are not
entitled to an award of attorney's fees.
We reverse and remand with instructions to the District Court
to dismiss the action against Mark and Judy, with prejudice.
We concur:
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\
/ Chief Justice
November 2, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Gregory 0. Morgan, P.C.
Attorney at Law
P.O. Box 1530
Bozeman, MT 59771-1530
Keith A. Christie, Esq.
Peterson & Schofield
2906 Third Ave. No.
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT