No. 83-223 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

PATRICK F. SHIMSKY and EILEEN F. 

SHIMSKY, husband and wife, 

Plaintiffs and Appellants, 

VALLEY CREDIT UNION, a credit union 

organized under the laws of the State 

of Montana, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF =CORD: 

For Appellants: 

Howard F. Strause, Great Falls, Montana 

Lawrence A. Anderson argued, Great Falls, Montana 

For Respondent: 

Herndon, Harper & Munro; Donald R. Herndon argued, 

Billings, Montana 

Submitted: October 26, 1983 

Decided: February 16, 1984 

Filed: 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This case involves allegations of violations of the 

Truth in Lending Act and breach of contract in relation to 

an "open ended" financing arrangement. This appeal is 

taken from the District Court order dismissing appellants' 

complaint and granting respondent's motion for summary 

judgment. 

On January 10, 1979, appellant Patrick F. Shimsky 

obtained a $5,500 loan from respondent (hereinafter Credit 

Union) by means of an open ended revolving credit plan. The 

annual percentage rate on the outstanding balance was 12%, 

and the agreement provided for minimum monthly payments. 

The language which gave rise to this dispute is found in 

paragraphs two and thirteen of the agreement, which 

provide: 

"2. the credit union reserves the right 

to amend or terminate this agreement or 

refuse any request for an advance at any 

time for any reason not prohibited by law 

and such action shall not affect the 

obligations of the undersigned or any 

other obligor. 

"13. Undersigned agrees that (a) the 

credit union may retain this agreement to 

comply with federal and/or state law and 

(b) in compliance with applicable law, 

regulation and this agreement the credit 

union may change the terms of the plan 

from time to time upon prior notice 

mailed to the undersigned's last known 

address as shown on the records of the 

credit union." 

Pursuant to these provisions, the Credit Union mailed 

a "Notice of Amendment to Revolving Credit Plan" to 

appellant in June of 1979, to be effective July 15, 1979. 
The notice generally stated that the Credit Union was 

raising the annual percentage rate from 12% to 15%, and gave 

appellant a choice of adhering to the new provisions of the 

contract or making payment in full on July 15, 1979. 

Appellant made monthly payments of $165 from August 1979 

through October 1981 reducing the outstanding balance to 

less than $300. This action was filed on October 20, 1981. 

Two causes of action were asserted in the complaint; 

first, alleged violations of the Federal Truth in Lending 

Act, and second, a breach of contract for unilaterally 

raising the interest rate in contravention of the agreement. 

The Credit Union generally denied both claims, and 

affirmatively plead novation, estoppel, waiver, laches and 

statute of limitations. 

The Credit Union then moved for summary judgment on 

the grounds that as a matter of law appellant's Truth in 

Lending claim was barred by the statute of limitations. 

Briefs were filed and oral arguments heard on the motion. 

The Court dismissed the complaint on the ground that the 

truth in lending claim was barred by the statute of 

limitations. An extensive memorandum in support of its 

order was filed by the court in which the Truth in Lending 

statute of limitations was discussed in depth. However, the 

breach of contract claim was not mentioned in the 

memorandum. In any event the complaint was dismissed in its 

entirety. 

On appeal, appellant seeks review only of the District 

Court's dismissal of the breach of contract claim, conceding 

that the Truth in Lending claim is barred by the statute of 

limitations. The issues raised deal with the propriety of 
the summary judgment in two aspects. He first contends the 

District Court improperly applied the Truth in Lending 

statute of limitations to the breach of contract claim, and 

second, that there were genuine issues of material fact so 

as to preclude summary judgment. 

We note that this case was disposed of below on motion 

for summary judgment. The trial judge sat without a jury 

and no testimony was taken, as the facts are relatively 

uncontested. The scope of review in such a case is much 

broader than in other appeals, as this Court is free to make 

its own examination of the entire case and to make a 

determination in accordance with its findings. Steadman v. 

Halland (Nont. 1982), 641 P.2d 448, 39 St.Rep. 343; citing 

In re Estate of Jensen (1969), 152 Mont. 495, 452 P.2d 418; 

and Kostbade v. Metier (1967), 150 Mont. 139, 432 P.2d 382. 

We will also uphold the result reached below if correct, 

regardless of the reasons given for the conclusion. 

Steadman, supra, citing Spaeth v. Emmett (1963), 142 Mont. 

231, 383 P.2d 812; and Johnstone v. Sanborn (1960), 138 

Mont. 467, 358 P.2d 399. 

We further note that this case sounds in equity. 

Traditionally, breach of contract claims, which is the only 

claim still pursued here, have been classified as actions at 

law. See McClintock, Equity section 60 (2d Ed. 1948). 

Specifically actions for breach of contract to lend money 

have been classified as actions at law. See McClintock, 

supra, section 60 at p. 156-7. However appellant's argument 

below was that the contract was illusory and thus void. On 

appeal he contends that the contract was void and illusory 

for lack of mutuality, and that the Credit Union's 
interpretation of the contract renders the contract 

unconscionable requiring it to be voided or reformed. These 

claims are tied to the breach of contract theory by 

appellant arguing that these problems have placed the Credit 

Union in breach of the contract provisions which allow 

amendment, "[Iln compliance with applicable law. . . " In 

addition, the Credit Union raised the equitable defenses of 

estoppel, waiver and laches. These requests are of an 

equitable nature and invoke the Court's equity power. 

When reviewing cases of an equitable nature, 

"[Tlhe supreme court shall review all 

questions of fact arising upon the 

evidence presented in the record, whether 

the same be presented by specifications 

of particulars in which the evidence is 

alleged to be insufficient or not, and 

determine the same, as well as questions 

of law, unless for good cause a new trial 

or the taking of further evidence in the 

court below be ordered." Section 

3-2-204(5), MCA. 

The peculiar circumstances of this appeal show the 

need for such a broad standard; the legal theory primarily 

relied on below by appellant has been conceded on appeal, 

and the issues presented for review relate to a legal theory 

which was barely touched by the District Court. In the 

lower court appellant's main legal theory involved alleged 

violations of the Truth in Lending Act. Appellant pursued 

the Truth in Lending claim vigorously, filing numerous 

briefs, discovery motions and seeking certification of the 

lawsuit as a class action. When the Credit Union filed its 

motion for summary judgment, appellant filed additional 

briefs and argued orally against the motion. After the 

hearing, appellant filed a post hearing memorandum further 

arguing his position. However in his zeal pursuing the 
Truth in Lfending claim, the breach of contrsct clalm set?ms 

to have been put on the back burner. 

'I'hroughout the various briefs and motions filed by 

appellant, little mention is made of the breach of contract 

claim. Some argument was made thst the contract was 

illusory and thus void, but any connection between that 

argument and the all.eqed breach of contract was not strongly 

pursued. In any event, the Truth in Le~ding claim emerged 

as the primary theory of recovery at the hearin? on the 

Credit Union's motion. This is apparent from a perusal of 

the District Court's memorandum in support of its dismissal 

of the action, in which no mention of the breach of contract 

claim is made. The Credit Unlon opined that appellant 

presented his arquments on the breach of contract issue in a 

vague, ambiguous ana secondary manner, and nothlng appears 

in the record to cause us to disagree. 

?.s a result, when the motion for summary judqmcnt was 

granted, the District Court's memorandum did not mention the 

breach of contract claim. However, we are now asked to 

review the trial court's dismissal of the breach of contract 

claim; thus it is imperative that the scope of review be 

quite broad. 

?de feel appellant's claim is barred by laches and 

affirm the District Court ruling on that basis. 

"Laches means negligence to the assertion 

of a right, and exists where there has 

been 3 delay of such duration as to 

render enforcement of an asserted right 

inequitable. (citations omitted) A 

complainant can be charged with lach~s 

if, but only if he was either actually or 

presumptively awarc of his rights. A 

complainant is presumptively aware of his 

rights where the circumstances of which 

he is cognizant are such as to put a man 

of ordinary prudence on inquiry." 
Hereford v. Hereford (1979), 183 Mont. 

104 at 108-9, 598 P.2d 600 at 602. 

Here there were no necessary facts of which appellant 

was cognizant at the time he brought the action that he was 

unaware of at the time he received the notice of amendment. 

The notice was clearly sufficient to bring the change in 

terms to appellant's attention. "A complainant is 

presumptively aware of his rights where the circumstances of 

which he is cognizant are such as to put a man of ordinary 

prudence on inquiry." Hereford, 183 Mont. at 108-9, 598 

P.2d at 602. As the Credit Union felt it was within its 

rights to raise the interest rate, it interpreted 

appellant's silence as acquiescence. It would be 

inequitable to allow pursuit of this claim when the Credit 

Union relied on appellant's acquiescence for over two years 

and the transaction is nearly complete. 

Appellant points out that the statute of limitations 

has not yet run, however the period of time necessary to 

invoke laches is not measured by the statute of limitations. 

Barrett v. Zenisek (1957), 132 Mont. 229, 315 P.2d 1001. 

Since there is no prescibed period, each case is determined 

according to its own particular circumstances. Montgomery 

v. First National Bank of Dillon (1943), 114 Mont. 395, 136 

P.2d 760. As noted above, appellant made twenty-seven 

payments after receiving notice that the interest rate was 

being raised. No objection was made until the balance had 

been reduced to less than $300, and over two years had 

passed. In the context of a two year transaction, it would 

be inequitable to allow pursuit of a claim which arose at 

the inception of the arrangement. 

As previously set forth in the statement of facts this 
was a case decided by the trial court on summary judgment, 

as the facts are uncontested. One of the issues raised by 

appellant is directed at the propriety of summary judgment 

as he alleges there are genuine issues of material fact 

outstanding. 

This Court has often stated that under Rule 56(c) 

M.R.Civ.P. summary judgment is proper only if the record 

discloses no genuine issue of material fact, and the movant 

is entitled to judgment as a matter of law. Reaves v. 

Reinbold (Mont. 1980), 615 P.2d 896, 37 St.Rep. 1500; Rumph 

v. Dale Edwards, Inc. (1979), 183 Mont. 359, 600 P.2d 163. 

The party moving for summary judgment has the burden of 

showing the complete absence of any genuine issue as to all 

facts which are deemed material in light of those 

substantive principles which entitle him to judgment as a 

matter of law. Big Man v. State (Mont. 1981), 626 P.2d 235, 

38 St.Rep. 362; Harland v. Anderson (1976), 169 Ivlont. 447, 

548 P.2d 613. "Once the movant has established that no 

material issues of fact exist, the burden shifts to the 

opposing party to raise an issue of fact." Krone v. McCann 

(Mont. 1982), 638 P.2d 397, 399-400, 39 St.Rep. 10, 13. 

Here the appellant failed to accept that burden and 

present facts involving the contract issue. Having failed 

to do so, the court's order granting summary judgment was 

proper. 

Accordingly, the judgment of the District Court 

dismissing the complaint in its entirety is affirmed. 
We concur: 

=%+ 4. &!=/ tt& 

Chief Jus ice 

Justices 

Mr. Justice John C. Sheehy, specially concurring: 

I concur only because of laches. This contract was 

entirely lacking in mutuality.