Mihalka v. Hill ( 1995 )

NO. 94-615
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
MICHAEL MIHALKA,
Plaintiff and Appellant,
-v-
BOYCE B. HILL and BETH HILL,
Defendants and Respondents.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Judith A. Loring, Stevensville, Montana
For Respondent:
Edward A. Murphy, Datsopoulos, MacDonald & Lind,
Missoula, Montana
Justice James C. Nelson delivered the Opinion of the Court.
The plaintiff, Michael Mihalka (Mihalka), brought an action in
the District Court to rescind a Contract for Deed between Mihalka
and the defendants, Boyce and Beth Hill (the Hills). Following a
bench trial, the District Court for the Twenty-First Judicial
District, Ravalli County, concluded that Mihalka had not made an
effective offer of rescission and had breached the contract. The
court granted the Hills their costs of suit and reasonable attorney
fees. Mihalka appeals. We affirm.
We address only the following issue on appeal:
Did the District Court err by holding that Mihalka had not
made an effective offer of rescission?
Background
In 1978, the Hills purchased property in Ravalli County and
began construction of a house on the property the following year.
The house was built by the Hills and several of their friends and
relatives. The Hills worked on the house until 1986. They resided
in it during the warmer months of the year and spent the winter
months in Arizona.
The Hills listed the house for sale in 1988. On December 4,
1989, Mihalka viewed the house with a realtor and indicated an
interest in purchasing it. Mihalka executed a buy/sell agreement
on the house the following day. The agreed purchase price was
$50,000, with $500 to be paid as earnest money, $9,500 to be paid
at closing and $40,000 due on a contract for deed payable over 10
years.
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After executing the buy/sell agreement, but prior to closing,
Mihalka moved into the house and began remodeling. He testified at
trial that during his attempts to remodel, he discovered numerous
problems with the house, including problems with the electrical
system and water leakage. On January 17, 1990, Mihalka sent the
Hills a letter citing various problems with the property and
demanding his money back. However, in his letter, Mihalka did not
offer to restore the property to the condition it was in before he
started his remodeling work.
Mihalka failed to make his June 1990 payment. On June 13,
1990, the Hills sent Mihalka a letter advising him that he had
thirty days from the date of the letter to cure the default or the
agreement would be terminated and the Hills would re-enter and take
possession of the property.
Mihalka failed to cure the default and moved out of the house.
The Hills took possession of the property in July 1990. Testimony
at trial showed that Mihalka failed to restore various items he had
removed in his remodeling, including: the kitchen sink, a wood
stove, the bricks around the wood stove, a door, insulation around
the hot water heater and kitchen cupboards. In addition, Mihalka
had not restored electrical modifications he made, pipes he cut,
nor holes he put in the ceiling. On July 23, 1990, Mihalka's
attorney sent a letter of rescission to the Hills containing an
offer to restore the property.
Mihalka filed suit on March 13, 1991, to recover his down
payment of $10,000 along with his costs to insure the home,
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interest expense on his monthly payments, and attorney fees. The
Hills counterclaimed for damages and to get the escrow documents
from the escrow agent in order to remove Mihalka's name from the
title. The District Court found for the Hills and awarded them
their attorney fees and damages. Mihalka moved the court to alter
or amend that portion of the judgment awarding damages to the
Hills. The motion was granted and Mihalka now appeals from the
District Court's Amended Findings of Fact, Conclusions of Law and
Judgment.
Discussion
Did the District Court err by holding that Mihalka had not
made an effective offer of rescission?
The District Court concluded that Mihalka had breached the
contract by failing to make the June 1990 payment and that the
Hills had properly terminated the contract after Mihalka failed to
cure the default. The District Court determined that Mihalka "made
no effective offer of recision [sic] and even kept the keys to the
house through the date of trial in this matter (almost four
years) .I'
Our review of a district court's conclusions of law is
plenary. We simply determine whether the court's interpretation of
the law is correct. Steer, Inc. v. Department of Revenue (1990),
245 Mont. 470, 474-75, 803 P.2d 601, 603.
Section 28-z-1713, MCA, provides:
How rescission accomplished. Rescission, when not
effected by consent, can be accomplished only by the use
o n the part of the party rescinding of reasonable
diligence to comply with the following rules:
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(1) He must rescind promptly upon discovering the
facts which entitle him to rescind if he is free from
duress, menace, undue influence, or disability and is
aware of his right to rescind.
(2) He must restore to the other party everything of
value which he has received from him under the contract
or must offer to restore the same, upon condition that
such party shall do likewise, unless the latter is unable
or positively refuses to do so. [Emphasis added.1
The District Court determined that the Contract for Deed
contained a default clause which provided that the sellers can
terminate the contract due to default after giving the buyer thirty
days notice by certified mail. Upon termination, the sellers have
the right to keep all money paid as rent and liquidated damages and
to receive all documents held in escrow.
When Mihalka failed to make the June 1990 payment, the Hills
sent Mihalka a notice of default reciting the failure to make the
June payment along with other defaults. Mihalka failed to cure the
defaults and the Hills terminated the contract. It was not until
July 23rd, ten days after the deadline to cure the default had
passed, that Mihalka sent a letter of rescission containing an
offer to restore the property.
In order to effectively rescind, a party must act promptly
upon discovery of the facts supporting the rescission. Section 28-
Z-1713 (1) , MCA; Schweigert v. Fowler (1990), 240 Mont. 424, 431,
784 P.2d 405, 410. Mihalka did not attempt to rescind the contract
until after the contract had terminated due to Mihalka's default.
His attempt at rescission came too late.
1n addition, Mihalka failed to restore to the Hills everything
of value which Mihalka had received from the Hills under the
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contract. Section Z&2-1713(2), MCA. The objective of rescission
is to return the parties to the position they were in had the
contract never been made. Cady v. Burton (1993), 257 Mont. 529,
538, 851 P.2d 1047, 1053. Although, Mihalka offered in his July
23, 1990 letter, to restore the property, the offer came too late
as the contract had already been terminated.
Accordingly, we hold that the District Court correctly
interpreted the law as it applies in this case and we affirm the
District Court's determination that Mihalka did not effectively
rescind the Contract for Deed.
Affirmed.
Pursuant to Section I, Paragraph 3 cc), 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 i result to the
West Publishing Company.
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