No. 93-567 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

BERNARD F. THORREZ 

and MARY THORREZ, 

UNITED PENTECOSTAL CHURCH OF AFR 1 2 1994 

BUTTE, KENNETH E. HOGUE and 

TERESA HOGUE, his wife, ZL! x;T.;fA CLERK OF %!F!?Zk.~E COURr 

Defendants and Respondents. GTAX Of 1!20%1 

i 

APPEAL FROM: ~istrict Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

John Leslie Hamner, Esq., Butte, Montana 

For Respondents: 

Frank J. Joseph, Burgess, Joyce & Whelan, 

Butte, Montana 

Submitted on Briefs: March 17, 1994 

Decided: April 12, 1994 

Filed: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Plaintiffs Bernard F. Thorrez and Mary Thorrez appeal from an 

order of summary judgment rendered by the Second Judicial District 

Court, Silver Bow County. We affirm. 

We restate the dispositive issue in this case as whether the 

District Court erred in its finding of fact that the contract was 

silent as to whether the thirty-day notice became effective upon 

mailing by sellers or upon receipt by buyers. 

Kenneth E. Hogue, as pastor, and his wife, Teresa Hogue, as 

secretary, operate the United Pentecostal Church of Butte (Kenneth 

E. Hoque, Teresa Hogue and the United Pentecostal Church of Butte 

are collectively referred to as the buyers). During the latter 

part of December 1987, the buyers were in search of a home. 

Bernard F. Thorrez and Mary Thorrez (sellers) owned a piece of land 

located in Butte which they offered to sell to the buyers. The 

parties entered into a contract on December 28, 1987. 

The parties' contract included the agreement that the buyers 

would pay $40,000 with a $1,000 down payment and installment 

payments of $395.58 due on the 10th day of each month. The 

contract also provided that if the buyers 

. . . fail to make the payments herein mentioned within 

Thirty (30) days after the same shall have become due, or 

shall at any time hereafter violate or neglect to fulfill 

any of said agreements, upon Thirty (30) days written 

Notice to the Buyer to make said pavments or to correct 

any violation or to fulfill any of said aqreements as 

aforesaid, they shall forfeit all risht or claim under 

the Contract . . . . 

The contract further provided: 
Notice: 

Any Notice to be given hereunder shall be by 

registered mail to the parties as follows: 

SELLER: BERNARD F. THORREZ 

715 South Thompson 

Jackson, Michigan 49203 

BUYER: UNITED PENTECOSTAL CHURCH 

OF BUTTE 

604 Yale Avenue 

Butte, Montana 59701 

The buyers failed to pay installments on the 10th of June and 

the 10th of July, 1992. On August 12, 1992, the Thorrezes sent 

notice by certified mail that the buyers were in default. The 

buyers received the notice thirteen days later, on August 25, 1992. 

On September 18, 1992, twenty-five days after the notice was 

received, the buyers complied with the notice by depositing the 

delinquent payments into the sellers' bank account. 

Did the District Court err in finding that the contract was 

silent as to whether the thirty-day notice became effective upon 

mailing by sellers or upon receipt by buyers? 

This Court reviews summary judgment decisions by utilizing the 

same criteria the lower court used in its deliberations: whether a 

disputed issue of material fact exists and whether a party is 

entitled to judgment as a matter of law. Minnie v. City of Roundup 

(l993), 257 Mont. 429, 431, 849 P.2d 212, 214; Rule 56(c), 

M.R.Civ.P. 

The sellers argue that the thirty-day period should have begun 

to run on the day that they mailed the default notice to the 

buyers, August 12, 1992. They state that the contract provided for 
notice to be sent by registered mail and that the mailing effectuated valid or constructive notice. 

Both parties agree there are no disputed issues of fact. 

After receiving notice of default by the sellers, the buyers paid 

their delinquent installment payments, thus curing the deficiency. 

When determining that the buyers were entitled to summary judgment 

as a matter of law, the court concluded: 

Plaintiffs mailed notice of default to Defendants on 

August 12, 1992, registered, with a return receipt 

requested. Both the Contract for Deed and the Notice of 

Default were silent as to when the 30 days would start 

running -- the date of mailing or the date of receipt of 

the notice. That in view of the method of delivery 

chosen by Plaintiffs, the Court concludes that actual 

notice was intended and the 30-day notice period did not 

start running until Defendants actually received the 

notice, as evidenced by the return receipt date, [August] 

25, 1992. 

We agree. 

We conclude that the District Court's construction of the 

running of the thirty-day notice period, which required actual 

notice, was not erroneous. See Steer, Inc. v. Dep't of Revenue 

(lggo), 245 Mont. 470, 803 P.2d 601. We therefore affirm the 

District Court's order of summary judgment. 

Pursuant to Section I, Paragraph 3(C), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 
We concur: 
April 12, 1994 

X CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

John Leslie Hamner 

Attorney at Law 

P.O. Box 3334 

Butte, MT 59702 

Frank J. Joseph 

BURGESS, JOYCE & WHELAN 

2801 South Montana Street 

Butte, MT 59701 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: