NO. 88-135
IN THE SUPREME COURTOF THE STATE OF MONTANA
1988

GEORGE ERNEST LeCLAIR and THERESA JANE LeCLAIR,husband and wife, Plaintiffsand Respondents,-vsEDWARD L. REITER, CLIFFORD C. HUST and MARLENE 

### M. HUST,husband and wife,
Defendant and appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell Fillner, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
Edward L. Reiter,pro se,Huntley,Montana
For Respondent:
Jones Law Firm;Blair Jones,Billings,Montana

Filed: Submitted onBriefs: June 30, 1988

ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

This is an action for termination of a contract for deed. The District Court for the Thirteenth Judicial District, Yellowstone County, declared the interests of the defendant purchasers terminated and quieted title in the plaintiff sellers. Mr. Reiter appeals. We affirm. We restate the issuesas follows: 1. Is this appeal moot because Mr. Reiter failed to file a supersedeasbond? 2. Was sufficient notice of default served upon Mr. Reiter? 3. Are the findings supported by the evidence? 4. Were attorney fees properly awarded to plaintiffs? In May 1978, the plaintiffs, as sellers, entered a contract for sale of farm equipment and real property in Yellowstone County, Montana, with defendants Clifford and Marlene Hust. In January 1980, the Husts made a written assignment to defendant Mr. Reiter of "all of their right, title and interest" in the real and personal property described in that contract for deed. The provisions of the contract for deed which are relevant to this appeal are:

7. Buyer and Seller agree that taxes and assessments shall be pro-rated between them as of May 14 

## , 1978. Seller shall pay taxes and assessments for all prior years in full and Buyer shall pay taxes and assessments for all subsequent years in full before the same become delinquent. Should Buyer fail to pay such taxes and assessments, Seller may, at their election, either treat the failure to pay said taxes and assessments as an event of defaulthereunder 

# .

# . .

10. Should any default of Buyer hereunder remainuncured formore than thirty (30)days afterwritten notice thereof, Sellermay,without further notice orperiod of grace:



# ... (b) declare the entire unpaid principal balancewith accrued interest thereon immediately due and payable and upon non-payment thereof after thirty (30) days' notice to Buyer of said acceleration, Seller may enforce collection of the total amount then due and payable in any appropriate manner by any available remedy, or terminate this Agreement, retaining all payments made by Buyer as liquidated damages forbreach of thisAgreement.

15. Any notice hereundermay be served personally or by certified mail. If served by mail., notice shall be directed to Buyer at Rd 9-Hardin, Mont., and to Seller at 2917 S.W-337-St. Federal Wav-Wash-98003, or such other address as Buyer or sellermay designate by notice appropriatelyhelivered to the other and to the EscrowAgent. Service by mail shall be complete on deposit in any United States Post Office.

In June 1986, the plaintiffs sentMr. Reiter,by certified mail, a notice of default. The notice alleged thatMr. Reiter had failed to comply with the provisions of the contract for deed by failing to make the contract payments due for the months of March and April 1986 and to pay realproperty taxes for the years 1984 and 1985. The notice further pointed out that the contract required Mr. Reiter to bring the default current within 30 days from the date of the notice. InJuly,the plaintiffs served uponMr. Reiter a "Notice of Default and Election to Accelerate," listing failure to pay the 1984 and 1985 property taxes, failure to make the payment due for themonth of June 1986, and failure to maintain adequate insurance coverage. In that notice, the

### plaintiffs elected as allowed under the contract to declare the entireunpaid balance of the contract due within 30 days. When Mr. Reiter failed to pay the accelerated balance of principal plus interest, the plaintiffs filed this suit for terminationof the contract for deed. The lower courtgranted judgment toplaintiffs,ordering that the contract was terminated, that plaintiffs' title to the property be quieted, and that the real and personal property described in the contractbe returned to plaintiffs' possession. It also awarded plaintiffs their reasonable attorney fees as allowed under the contract. Mr. Reiter appeals,appearing pro se.

Is this appeal moot because Mr. Reiter failed to file a supersedeasbond? The plaintiffs have raised this threshold issue,pointing out that they have already repossessed the real and personal property and thatquitclaimdeeds fromMr. Reiter to the Husts and from the Husts to plaintiffs have been filed. They argue that since Mr Reiter did not file a supersedeas bond or otherwise stay execution of the lower court's judgment, this appeal ismoot. Where payment or performance of a judgment by an appellant is involuntary, the right to appeal is not affected. State v. Rafn (1956), 130 Mont. 554, 557, 304 P.2d 918, 919-20. That rulewas reaffirmed in this Court's opinion and order in FirstNat. Bank inEureka v. Giles (Mont.1986), - 

### P.2d 

### - 

## ,43 St.Rep. 1326, 1328: It thus appears that in our decided cases we have been skirting around the rule that if a judgment is satisfiedby an involuntary payment orperformance, the appeal from the judgment is not thereby rendered moot. We herebv adopt that rule, expressly overruling anything to the contrary in Henke[Gallatin Trust and Savings Bank v. Henke (1969), 154Mont. 170, 461 P.2d 4481 or other cases.
It is clear from the District Court file thatMr. ~eiter did not voluntarily relinquish either the real or personal property to the plaintiffs. We thereforego on to the issues raisedby Mr. Reiter.

Was sufficientnotice of default served uponMr. Reiter? Mr. Reiter asserts that the notice of default was invalid because the copy he received wasundated. He testified that his mother signed for the certified letter and that he threw away the envelope. He cites caselaw requiring return of process after service of a summons as his authority that the noticemust have been dated. The contract for deed does not require that the notice be dated in any certain way, except to specify that service by mail is complete on deposit in a post office. Under the contract, the postmarked date is the beginning of the 30-day period for curing a default. Mr. Reiter acknowledges receiving the notice by certified mail and there is nothing to indicateprejudice to him by a failure to date it. Further,

a copy of the notice of defaultwas submitted into evidence. It contains all information required by the contract and is dated at thebottom. We hold that the lower courtwas not in error in finding that the notice of defau1.t served upon Mr. Reiter was sufficient.

Are the find.ingssupportedby the evidence? Mr. Reitermakes severalargumentswhich we have grouped under this issue. One depends on his contention in Issue I1 that the notice of defaultwas insufficient. Our resolution of Issue I1disposesof that argument.

### Another of Mr. Reiter's arguments involves his Chapter 11 

### (reorganization)bankruptcy proceeding. is 

### bankruptcy petition was dismissed inApril of 1986. 

### Mr. Reiter asserts that before his petition was dismissed,he and his creditors reached an agreement that the sole secured creditor would claim the secured property and that he would pay all other creditors within three years. He maintains that this oral agreementbinds theplaintiffs. TheDistrict Court found, as to this argument:

13. 

### That the Court finds the allegation by Defendant Reiter as to the existence of a subsequent agreementwith Plaintiffs forgiving or allowing Defendant Reiter additional time to pay taxes to be unfounded and not supported by credible evidence in the followingrespects: a. DefendantReiter ties his allegationwith regard to the taxes to a Chapter 11

### bankruptcy filing which was dismissed in April, 1986 

### - prior to the service of the default notices and maintenance of this action. No agreement was reached during the bankruptcy proceedings which alters the terms of the contractsbefore theCourt. Findings of fact will notbe set aside unless they are clearly erroneous. Rule 52

### (a)

## ,M.R.Civ.P. In their testimony at trial, the plaintiffs denied ever discussing with Mr. Reiter
an agreement such as the one he claims existed. There is no formal creditor agreement from the bankruptcy proceeding, because that proceeding was dismissed. We conclude that the above finding is not clearly erroneous. Mr. Reiter next argues that after he received the notice ofdefault,he kepthispayments current to the escrow agent,
so that the lower court should have dismissed this case at the hearing on his motion for summary judgment. However, under paragraph 7 of 

### the contract, nonpayment of taxes could be grounds 

### for default. Mr. Reiter does not dispute that hedid not pay the 1984 and 1985 taxes. Whether he did or did not make up or keep up on his monthly payments, he was in defaultbased on nonpaymentof the taxes. Finally, Mr. Reiter argues that the bill of sale he received on the personal property included in his contract with the Husts neverwent into escrow, so thathe is entitled to retain that property. The District Court's order extinguished Mr. Reiter's interest in the foll.owi.ng personal property:

John Deere Tractor

### - ?O Gas JohnDeere Tractor

## - A John Deere Drill

## - 8' 12" PostHole Digger 3-SectionHarrow Wooden Leveler

## - 6'

### x 24' Border Dyker International Two-Bottom Rollover Plow JohnDeere #5Mowing Machine JohnsonWorkHorse Loaderwith manure fork and hay head Ditcher Burr Grain Grinder plus belt
The escrow officer testified by deposition that the original bill of sale for the above property was in the escrow file. The Husts had no power to convey to Mr. Reiter any greater interest in the personal property than the interest they possessed,and their interestwas limitedby the contract for deed. Mr. Reiter did not produce an originalbill of sale, nor any other documents showing that the personal property had been paid off separately from the escrow contract. We conclude that the lower court's finding that plaintiffs are entitled to have the personal property returned to them is supportedby the evidence and is not clearly erroneous. I

T7 Were attorney fees properly awarded toplaintiffs?Under paragraph 14 of the contract for deed, the prevailing party in an action for enforcementof the contract "shallbe entitled to a reasonable attorney's fee in addition to costs of suit." Mr. Reiter asks that the award of attorney feesbe reversed. Paragraph 14 of the contract clearly allows attorney fees to theprevailing party. As discussed above, we affirm the rulings of the District Court which made plaintiffs the prevailing party. We conclude that plaintiffs are entitled to the attorney fees awarded by the District Court and that they are entitled to reasonable attorney fees on appeal. This matter is remanded to the District Court for determination of the reasonableattorney fee on appeal. Affirmed and remanded.