No. 13642 

IN THE SUPREME COURT OF THE STAT OF MONTANA 

1977 

EDWARD V. BRABENDER and FRANCES 

BRABENDER, husband and wife, 

Plaintiffs and Appellants, 

KIT MANUFACTURING COMPANY, a 

corporation, and FALLS MOBILE HOME 

CENTER, INC., 

Defendants and Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Truman G. Bradford, Judge presiding. 

Counsel of Record: 

For Appellants: 

John R. Christensen argued, Stanford, Montana 

For Respondents: 

John Atkins argued, Helena, Montana 

Submitted: June 3, 1977 

~ecided:AU 6 3, :Sf7 

Filed Nc 3 C. 1977 

I/ U - Clerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Plaintiffs appeal from a summary judgment granted to 

defendant in which the court refused to rescind a purchase contract and awarded defendant attorney fees. 

Plaintiffs Edward V. Brabender and his wife entered into 

a purchase contract with Falls lobile Home Center, Inc. (Falls) 

of Great Falls, Montana, on September 21, 1971 for the purchase 

of a new 1972 Golden State Mobile home to be manufactured by Kit 

Manufacturing Company (Kit) of Caldwell, Idaho. The purchase 

contract referred to an attached Kit Manufacturing Company Order 

form which designated the specifications the Brabenders desired 

included on their new mobile home. On November 16, 1971, plaintiffs and Falls executed a retail installment contract which Falls 

assigned to the First National Bank of Great Falls. After a 

down payment and trade-in allowance on their old mobile home, the 

plaintiffs owed $1,604.22 which was to be paid in six equal consecutive installments beginning in January, 1972, and ending in 

June, 1972. In case of a delinquent installment, the retail installment contract provided for a late charge plus a reasonable 

attorney fee if the matter was referred to an attorney. 

On November 25, 1971, the mobile home was delivered to 

plaintiffs at Green Acres Trailer Park, Lewistown, Montana. 

Plaintiffs inspected the mobile home and found fault with it in 

various particulars. In a letter to Kit dated November 29, 1971, 

plaintiffs complained among other things that the frame of the 

mobile home was bent, that the roof was buckled and banging, that 

the siding and trim were loose and rattling, that the floor boards 

were loose and nails were coming through, that there was an unpatched hole in the underflooring, that the rear bedroom window 

screen was torn, and that the kitchen countertops were not joined 

properly. They concluded their letter stating: 
"We cannot and will not accept this mobile home 

and we want immediate action from you on this or 

we will be obliged to take action ourselves." 

That same day A1 Lawson, the president of Falls and Gene 

Bumgarner, sales manager of Kit, inspected the mobile home. On 

December 7, 1971, Gene Bumgarner responded to plaintiffs' November 29 letter, stating that he did not see any structural damage 

to the mobile home's frame, but that he would send a serviceman 

to perform the other necessary repairs to plaintiffs' home. Kit's 

serviceman arrived December 13, 1971 to make the repairs, but 

plaintiffs, contrary to the advice of their then counsel, refused 

to let the serviceman make them. On December 30, 1971 Gene Bumgarner sent a letter to plaintiffs by certified mail reciting the 

prior events and informing them that Kit still stood ready to 

perform warranty repair, but because plaintiffs refused to allow 

Kit to make the repairs, they would not assume responsibility for 

damages which might occur due to nonrepair of existing warranty 

claims. 

Plaintiffs did not communicate further with either Falls 

or Kit until the filing of this law suit over four years later. 

On the advice of their then counsel, plaintiffs paid on schedule 

the installments due First National Bank of Great Falls, as 

assignee of the retail installment contract. That contract was 

fully executed with the payment of the June, 1972 installment. 

Plaintiffs continued to live intermittently in the mobile home 

from the time of its delivery to the Green Acres Trailer Park 

until May, 1973. From 1973 to present the mobile home has remained at the trailer park unoccupied. 

On February 20, 1976 plaintiffs filed suit against Falls 

and Kit seeking rescission of the purchase contract and a refund 

of the purchase price plus interest, or in the alternative, seeking damages in the amount of $7,000 plus interest. 

Defendant Falls answered alleging several affirmative 
defenses, among other things. Falls alleged that the attempted 

rescission was ineffective and that plaintiffs had not acted 

soon enough in bringing suit and should not, more than four 

years later, be heard to complain of the defects in the mobile 

home. As a counterclaim Falls claimed attorney fees under the 

contract. Defendant Falls filed affidavits, requests for admissions, and interrogatories. It then filed a motion for summary judgment on the grounds that plaintiffs had failed to comply 

with the statutory requirements for rescission, that the purchase 

contract was fully executed and that plaintiffs had accepted the 

mobile home. Later it filed supplemental grounds alleging that 

the suit was not commenced within four years after the cause of 

action accrued and therefore plaintiffs' claims were barred by 

section 87A-2-725, R.C.M. 1947. 

Defendant Kit answered plaintiffs' complaint alleging as 

defenses that plaintiffs' claims were barred by section 87A-2-725, 

and by laches, waiver and estoppel. Defendant Kit was granted 

summary judgment. 

Defendant Falls was later granted summary judgment. Following a further hearing, the district court granted defendant Falls 

judgment against plaintiffs for $1,200 attorney fees. Plaintiffs 

appealed from the judgment in favor of defendant Falls. 

The district court based summary judgment in favor of 

defendant Falls on its findings and conclusions that; (1) Plaintiffs did not comply with the statutes governing rescission of 

contracts; (2) plaintiffs waived their objections to the alleged 

defects in the mobile home by their wrongful refusal to allow defendant Kit's repairman to remedy their objections; (3) plaintiffs 

accepted the mobile home by their continued use and occupancy of 

it and by their full payment of the contract; (4) plaintiffs suit 

to rescind the contract was barred by laches and estoppel; and 
(5) the amount and existence of damages claimed was purely 

speculative and conjectural. The district court's award of 

attorney fees to defendant Falls was based on its findings 

and conclusions that: (1) There was a single integrated contract 

consisting of the purchase contract, the Kit order form, and the 

retail installment contract; (2) the retail installment contract 

provided for attorney fees in case of default; and (3) this provision was reciprocal under section 93-8601.1, R.C.M. 1947. 

Plaintiffs raise two issues on appeal: 

1. Whether the pleadings, interrogatories, affidavits, 

and records show any genuine issues of material fact precluding 

summary judgment; and 

2. Whether the award of attorney fees to defendant Falls 

was proper. 

Summary judgment is not a substitute for trial; it can 

only be granted where the record discloses no genuine issue of 

material fact and that the moving party is entitled to judgment 

as a matter of law. Where the absence of any genuine issue of 

material fact is disclosed by the record, the burden is on the 

party opposing summary judgment to come forward with evidence 

creating a genuine issue of material fact to be determined at 

trial. Johnson v. Johnson, Mont . , 561 P.2d 917, 919, 

34 St.Rep. 162 (1977); Harland v. Anderson, 169 Mont. 447, 548 

P.2d 613, 615, 33 St.Rep. 363 (1976). The party opposing the 

motion will be indulged to the extent of all inferences which may 

be reasonably drawn from the offered proof. Harland v. Anderson, 

548 P.2d at 615. 

We turn our attention to the defense of laches. Laches 

is negligence in the assertion of a right. It exists when there 

has been an unexplained delay of such duration or character as 

to render the enforcement of an asserted right inequitable. 
Quoting from Johnson we stated: 

" * * * Considerations of public policy and 

the difficulty of doing justice between the 

parties are sufficient to warrant a court of 

equity in refusing to institute an investigation where the lapse of time in the assertion 

of the claim is such as to show inexcusable 

neglect on the part of the plaintiff, no matter 

how apparently just his claim may be; and this 

is particularly so where the relations of the 

parties have been materially altered in the 

meantime." Johnson v. Johnson, 561 P.2d 920; 

Riley v. Blacker, 51 Mont. 364, 152 P. 758 (1915). 

Prior to the filing of this law suit, the record shows that the 

last written communication from the plaintiffs to either defendant was plaintiffs' letter of November 29, 1971 to defendant 

Kit. The last oral communication between the parties was on 

December 7, 1971. After defendant Kit's letter of December 30, 

to plaintiffs, plaintiffs had no further contact with either 

defendant until this suit was filed on February 20, 1976. The 

record is barren of any excuse for this long delay. The applicable statute of limitations, section 87A-2-725(1), R.C.M. 1947, 

provides : 

"An action for the breach of any contract for 

sale must be commenced within four years after 

the cause of action has accrued. * * *" 

In Shell v. Strong, 151 F.2d 909, 911 (10th Cir. (1945), . 

it is stated: 

"A court of equity is not bound by the statute 

of limitations, but, in the absence of extraordinary circumstances, it will usually grant 

or withhold relief in analogy to the statute 

of limitations relating to actions at law of like 

character. Under ordinary circumstances, a suit 

in equity will not be stayed for laches before, 

and will be stayed after, the time fixed by the 

analogous statute, but if unusual conditions or 

extraordinary circumstances make it inequitable 

to allow the prosecution of a suit after a 

briefer, or to forbid its maintenance after a 

longer, period than that fixed by the analogous 

statute, a court of equity will not be bound by 

the statute, but will determine the extraordinary 

case in accordance with the equities which condition it. When a suit is brought within the 

time fixed by the analogous statute, the burden 

is on the defendant to show, either from the 
face of the complaint or by his answer, that 

extraordinary circumstances exist which require 

the application of the doctrine of laches. On 

the other hand, when the suit is brought after 

the statutory time has elapsed, the burden is on 

the complainant to aver and prove circumstances 

making it inequitable to apply laches to his 

case." 151 F.2d 911. 

Plaintiffs did not bring this suit within the time fixed 

by the analogous statute of limitations, nor have they given any 

reason for their delay in bringing suit. To the contrary, they 

used the mobile home for 1-1/2 years after it was delivered to 

them, and after moving out of it, they left it unoccupied. Defendant Kit notified plaintiffs that in light of plaintiffs refusal to allow Kit to make the requested repairs, it would not 

assume responsibility for damages resulting from failure to make 

those repairs. In view of these facts, we hold that it would now 

be inequitable to allow plaintiffs to attempt to rescind the 

contract. Plaintiffs' suit for rescission is barred by their 

laches. 

Plaintiffs' second claim seeks damages for breach of 

contract. This claim is now barred by the applicable four year 

statute of limitations. Section 87A-2-725(1). 

Plaintiffs contend that defendant Falls may not rely on 

the affirmative defenses of laches and the statute of limitations 

to bar plaintiffs' suit because they were not affirmatively plead 

in its answer as required by Rule 8(c), M.R.Civ.P. Rule 8(c) 

must be read in connection with Rule 8(e), M.R.Civ.P., which 

states that no technical forms of pleading or motion are required, 

and with Rule 8(f), M.R.Civ.P., which requires that all pleadings 

be construed so as to do substantial justice. Defendant Falls' 

answer denominates three affirmative defenses which in substance 

are: (1) Failure to state a claim for relief, (2) ineffective 

rescission and waiver of the defects, and (3) estoppel, laches 

and statute of limitations. Although defendant Falls did not 
specifically denominate his defenses as laches or statute of 

limitations, the allegations of the second and third affirmative defenses, which are detailed at length, contain certain 

dates of all oral and written communications between plaintiffs 

and defendants, show that more than four years elapsed between 

the signing of both the purchase and retail installment contracts and plaintiffs' filing of the law suit, and state: 

"Plaintiffs should be estopped by their conduct, 

both their affirmative acts and subsequent inaction, 

and the lapse of time, from now attempting to repudiate or rescind the contract * * * or to seek any 

of the relief asked for in the complaint." 

A reading of defendant Falls affirmative defenses reveals that 

plaintiffs had adequate notice that defendant Falls intended to 

raise the defenses of laches and statute of limitations. In light 

of Rules 8 (e) and 8 (f) , M.R. Civ.P. , we hold that those defenses 

were adequately plead in defendant Falls' answer. 

Plaintiffs' second issue on appeal is whether defendant 

Falls was entitled to an award of attorney fees. The purchase 

contract between plaintiffs and defendant Falls made no provision 

for attorney fees in case of suit on the contract. The retail 

installment contract between plaintiffs and defendant Falls provided 

for attorney fees in case suit was brought to recover delinquent 

payments. Section 93-8601.1, R.C.M. 1947, states: 

"Whenever by virtue of the provisions of any 

contract or obligation in the nature of a 

contract, made and entered into at any time after 

the effective date of this act, one party to such 

contract or obligation has an express right to 

recover attorney fees from any other party to 

the contract or obligation in the event the party 

having that right shall bring an action upon the 

contract or obligation, then in any action on 

Such contract or obligation all parties to the 

contract or obligation shall be deemed to have 

the same right to recover attorney fees, and the 

prevailing party in any such action, whether by 

virtue of the express contractual right, or by 

virtue of this act, shall be entitled to recover 

his reasonable attorney fees from the losing party 

or parties." 

Plaintiffs contend that the provision in the retail in- 
stallment contract cannot be made a basis for an award of 

attorney fees under section 93-8601.1 where the retail installment contract has been fully executed. Defendants argue that 

the purchase contract and the retail installment contract 

should be read together as an integrated contract. 

The purchase contract did not specifically incorporate 

the terms of this retail installment contract, but provided 

that in case the purchase contract was not a cash transaction, 

the purchaser " * * * before, or at the time of delivery of the 

trailer, mobilehome or vehicle ordered * * * will either execute 

a chattel mortgage, conditional sales contract, or such other 

form of agreement as may be required by law." Nor were the two 

contracts executed contemporaneously. The purchase contract was 

signed September 21, 1971; the retail installment contract was 

signed November 16, 1971. Most significantly, the retail installment contract was fully executed in July 1972, over 3-1/2 years 

prior to the filing of this suit. In light of these facts we 

deem it inequitable to award defendant Falls attorney fees in 

plaintiffs' action to rescind the purchase contract. 

Defendant Falls contends that this case is indistinguishable from Compton v. Alcorn, Mont . , 557 P.2d 292, 33 St. 

Rep. 1185 (1976), in which defendant, the seller of a mobile 

home, was awarded attorney fees in the purchasers1 suit to rescind 

a retail installment contract. Compton is distinguishable on 

two bases: (1) It was on suit to rescind a retail installment 

contract, not a purchase contract; (2) the retail installment 

contract was not fully executed, whereas here it was. 

The portion of the summary judgment awarding defendant 

Falls attorney fees is reversed. The award of summary judgment 

in favor of defendant Falls is affirmed. 

Justice 
We concur: 

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