NO. 88-135 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

GEORGE ERNEST LeCLAIR and THERESA 

JANE LeCLAIR, husband and wife, 

Plaintiffs and 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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Edward L. Reiter, pro se, Huntley, Montana 

For Respondent: 

Jones Law Firm; Blair Jones, Billings, Montana 

Filed: 

Submitted on Briefs: June 30, 1988 

Clerk 
Mr. 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 issues as follows: 

1. Is this appeal moot because Mr. Reiter failed to 

file a supersedeas bond? 

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 default hereunder . . . 

10. Should any default of Buyer hereunder 

remain uncured for more than thirty (30) days after 
written notice thereof, Seller may, without further 

notice or period of grace: 

... 

(b) declare the entire unpaid principal balance with 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 for breach of this Agreement. 

15. Any notice hereunder may 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 

seller may designate by notice appropriately helivered to the other and to the Escrow Agent. Service 

by mail shall be complete on deposit in any United 

States Post Office. 

In June 1986, the plaintiffs sent Mr. Reiter, by certified mail, a notice of default. The notice alleged that Mr. 

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 real property 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. 

In July, the plaintiffs served upon Mr. 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 the month of June 1986, and failure to maintain adequate insurance coverage. In that notice, the 
plaintiffs elected as allowed under the contract to declare 

the entire unpaid 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 

termination of the contract for deed. 

The lower court granted judgment to plaintiffs, ordering 

that the contract was terminated, that plaintiffs' title to 

the property be quieted, and that the real and personal 

property described in the contract be 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 

supersedeas bond? 

The plaintiffs have raised this threshold issue, pointing out that they have already repossessed the real and 

personal property and that quitclaim deeds from Mr. 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 is moot. 

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 rule was reaffirmed in this Court's opinion and 

order in First Nat. Bank in Eureka 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 

satisfied by an involuntary payment or performance, 

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), 

154 Mont. 170, 461 P.2d 4481 or other cases. 

It is clear from the District Court file that Mr. ~eiter 

did not voluntarily relinquish either the real or personal 

property to the plaintiffs. We therefore go on to the issues 

raised by Mr. Reiter. 

Was sufficient notice of default served upon Mr. Reiter? 

Mr. Reiter asserts that the notice of default was invalid because the copy he received was undated. 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 notice must 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 

indicate prejudice to him by a failure to date it. Further, 

a copy of the notice of default was submitted into evidence. 

It contains all information required by the contract and is 

dated at the bottom. We hold that the lower court was not in 

error in finding that the notice of defau1.t served upon Mr. 

Reiter was sufficient. 

Are the find.ings supported by the evidence? 

Mr. Reiter makes several arguments which we have grouped 

under this issue. One depends on his contention in Issue I1 

that the notice of default was insufficient. Our resolution 

of Issue I1 disposes of that argument. 
Another of Mr. Reiter's arguments involves his Chapter 

11 (reorganization) bankruptcy proceeding. is bankruptcy 

petition was dismissed in April 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 

agreement binds the plaintiffs. 

The District Court found, as to this argument: 

13. That the Court finds the allegation by 

Defendant Reiter as to the existence of a subsequent agreement with Plaintiffs forgiving or allowing Defendant Reiter additional time to pay taxes 

to be unfounded and not supported by credible 

evidence in the following respects: 

a. Defendant Reiter ties his allegation with 

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 contracts before 

the Court. 

Findings of fact will not be 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 

of default, he kept his payments 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 he 
did 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 

default based on nonpayment of the taxes. 

Finally, Mr. Reiter argues that the bill of sale he 

received on the personal property included in his contract 

with the Husts never went into escrow, so that he 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 

John Deere Tractor - A 

John Deere Drill - 8' 

12" Post Hole Digger 

3-Section Harrow 

Wooden Leveler - 6' x 24' 

Border Dyker 

International Two-Bottom Rollover Plow 

John Deere #5 Mowing Machine 

Johnson WorkHorse Loader with 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 interest was limited by the contract for 

deed. Mr. Reiter did not produce an original bill 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 

supported by the evidence and is not clearly erroneous. 

I T7 

Were attorney fees properly awarded to plaintiffs? 
Under paragraph 14 of the contract for deed, the 

prevailing party in an action for enforcement of the contract 

"shall be entitled to a reasonable attorney's fee in addition 

to costs of suit." Mr. Reiter asks that the award of attorney fees be reversed. 

Paragraph 14 of the contract clearly allows attorney 

fees to the prevailing 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 reasonable attorney fee on appeal. 

Affirmed and remanded.