Cox v. Cox

357 P.3d 336 (Table)

Daniel Scott COX, Plaintiff and Appellant

v.Sara Kae COX, Defendant and Appellee.

No. DA 15–0004.

Supreme Court of Montana.

Submitted on Briefs July 8, 2015.

Decided Aug. 18, 2015.

For Appellant: Robert C. Myers, Montana Resource and Asset Protection, P.C., Hamilton, Montana.

For Appellee: Matthew J. Cuffe, Amy M. Scott Smith, Worden Thane P.C., Missoula, Montana.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the court.

¶ 1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶ 2 Daniel Cox (Daniel) appeals from an order of the Fourth Judicial District Court, Missoula County, granting summary judgment to Sara Cox (Sara) concluding Sara did not breach the terms of a Promissory Note (Note). The District Court subsequently awarded Sara her attorney fees and costs as a prevailing party and pursuant to the provisions of the Note. We affirm the District Court's grant of summary judgment to Sara and the District Court's judgment of attorney fees and costs to Sara. We additionally grant Sara her attorney fees and costs on appeal and remand for a determination of that amount by the District Court.

¶ 3 As part of their divorce, Daniel sold Sara his shares in their company Coxlures, Inc. (now Halo Heaven, Inc.) for $2,040,000. On February 23, 2010, Sara executed and delivered to Daniel a Note in the amount of $2,020,000 to be paid to Daniel in monthly installments of $5,000.00 on the first day of each month until the principal was paid. Sara secured the Note with 17,500 shares of stock Daniel had sold her and the parties placed into escrow a stock certificate evidencing these shares. Daniel has received and accepted, without objection, monthly principal payments from Sara since March 2010.

¶ 4 On August 5, 2013, Daniel filed a complaint alleging Sara had breached an express term of the Note by making six untimely payments to the escrow account in 2012. (The payments were those for January, March, April, May, July, and August 2012.) The record indicates that Farmers State Bank, the escrow servicer, was closed on January 1, April 1, and July 1, 2012 for either a holiday or a Sunday and that the payments were received by Farmers State Bank on the next business day. The March, May, and August payments were made within 24–48 hours of the due date. Daniel does not dispute that he has received every monthly installment payment from Sara, in the amount of $5,000, and that he has never objected to the timing of the payment or returned a payment to Sara.

¶ 5 Sara filed an Answer on January 27, 2014, in which she pled entitlement to attorney fees and other defenses. On March 14, Sara filed a Motion for Summary Judgment arguing that three of the six payments were timely made and that Daniel, having received payment in full, has suffered no damages as a result of any alleged untimeliness of the remaining three payments. Further, Sara argued Daniel waived any objection to timeliness by his acceptance of the payment. Sara again asked the court to award attorney fees and costs. Daniel did not file an opposition brief and did not respond to Sara's request for attorney fees and costs. Instead, Daniel filed a “Motion for Continuance of Summary Judgment,” dated April 10, 2014. The court conducted a summary judgment hearing on May 29, 2014, in which Daniel and his attorney participated. On July 1, 2014, the district court granted Sara's Motion for Summary Judgment and denied Daniel's Motion for Continuance of Summary Judgment. On July 8th, the court entered its Final Judgment and Order dismissing Daniel's complaint and awarding Sara attorney fees per the terms of the Note. The court ordered supplemental attorney fees on December 5, 2014.

¶ 6 We review a district court's decision on a motion for summary judgment de novo, using the same criteria as the district court under M.R. Civ. P. 56. Hansen v. Bozeman Police Dep't, 2015 MT 143, ¶ 12, 379 Mont. 284, 287, 350 P.3d 372.

¶ 7 Under §§ 1–1–307 and 28–3–603, MCA, payments due on a holiday or Sunday, “may be performed on the next business day with the same effect as if it had been performed upon the day appointed.” Section 28–3–603, MCA. The payments due January 1, April 1, and July 1, 2012, fell on Sundays or a holiday and, therefore, payments made on those dates must be considered timely.

¶ 8 With respect to the remaining three payments, which were made one or two days late, it is undisputed that Daniel accepted the payments and made no objection until over a year later when this lawsuit was filed. A party waives his right to later object to the timeliness of payments when he failed to specify the objection at the time of tender. Section 28–1–1112, MCA. When Daniel failed to object to any untimeliness at the time Sara tendered her payments, he waived any right to claim default. Therefore, Daniel is not entitled to an acceleration of the balance for those late payments he accepted. As the undisputed facts in the record show that Sara made the required payments under the Note, that she continued to make monthly payments after Daniel filed his complaint, and that Daniel has accepted each monthly payment without objection, Sara was entitled to judgment as a matter of law. We also observe that Daniel's argument Sara waived any and all statutory defenses...