Scharf v. BMG Corp.

• Decision Date: 16 April 1985
• Docket Number: No. 18963,18963
• Citation: 700 P.2d 1068
• Parties: 40 UCC Rep.Serv. 1932 K. J. SCHARF, dba Western Leasing, Plaintiff and Respondent, v. BMG CORPORATION, Vernon R. Erickson, Michael R. Erickson, and Bruce V. Erickson, Defendants and Appellants.
• Court: Utah Supreme Court

Page 1068

700 P.2d 1068

40 UCC Rep.Serv. 1932

K. J. SCHARF, dba Western Leasing, Plaintiff and Respondent, v. BMG CORPORATION, Vernon R. Erickson, Michael R. Erickson, and Bruce V. Erickson, Defendants and Appellants.

No. 18963.

Supreme Court of Utah.

April 16, 1985.

Rehearing Denied July 7, 1985.

Roy G. Haslam, Salt Lake City, for defendants and appellants.

Bryce E. Roe, Salt Lake City, for plaintiff and respondent.

ZIMMERMAN, Justice:

Defendant Vernon R. Erickson personally guaranteed leases on two pieces of repossessed equipment. He appeals from a deficiency judgment entered against him after the lessor, Kathy Scharf, sold the equipment. Erickson claims that Scharf's sale of the equipment was not "commercially reasonable" and that the notice of sale actually given did not constitute "reasonable notification," all as required by section 70A-9-504(3) of the Code. U.C.A., 1953, § 70A-9-504(3) (1980 ed.). For the reasons set forth below, we affirm.

In the spring of 1979, Scharf, doing business as Western Leasing, leased a $33,000 Summit hydraulic shear and an $18,000 Victor lathe to BMG Corporation. Michael R. and Bruce V. Erickson, the principals of BMG, and their father, Vernon R. Erickson, executed personal guarantees of faithful performance under the lease agreements. In April of 1980, BMG Corporation defaulted on the payments due under both leases, and on September 5, 1980, Scharf repossessed the equipment with the Ericksons' consent. On October 1, 1980, Scharf sold the lathe for $6,000, and approximately a week later, she sold the shear for $19,000. She then brought an action pursuant to section 70A-9-504(2) of the Code, seeking to recover the difference between the balance owing on the leases and the amount realized from the sale of the equipment.

At the October 8, 1982, trial, counsel for Vernon Erickson, the only defendant remaining in the action, argued that the sale of the equipment failed to comply with section 70A-9-504(3) of the Code, which gives a secured party the right to dispose of collateral after default. In pertinent part, that section provides: "Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable." U.C.A., 1953, § 70A-9-504(3) (1980 ed.). The same section also describes the notice that must be given to the debtor when collateral is disposed of:

Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor.

Id.

Erickson asserted at trial that the method, manner, and timing of the sale all failed to meet section 70A-9-504(3)'s standard of commercial reasonableness. He also asserted that the notice was technically deficient because it failed to state whether the sale would be public or private and did not specify a date, time, and location for the sale. These inadequacies, according to Erickson, prejudiced him by denying him the opportunity to arrange a sale on more favorable terms.

After hearing the testimony, the trial court entered detailed factual findings supporting its conclusions that the sale was private, that it was conducted in a commercially reasonable manner, that the notification met the statutory standard of reasonableness, that the prices received for the equipment reflected its reasonable market value, and that any deficiencies in notice were not prejudicial to defendant. The trial court entered a deficiency judgment for Scharf in the amount of $54,310.21 and awarded her $3,500 in attorney fees.

On appeal, Erickson again argues that the sale was not commercially reasonable and that the notice was inadequate under the statute, attacking both the trial court's factual findings and its legal conclusions. The challenges to the factual findings can be disposed of readily. Erickson makes numerous arguments based on the facts as he presented them to the trial court, rather than on the facts as found by that court. However, at no point does he even discuss the detailed findings entered by the lower court that contradict his factual assertions. With respect to these matters, we take as our starting point the trial court's findings and not Erickson's recitation of the facts. To mount a successful attack on the trial court's findings of fact, an appellant must marshal all the evidence in support of the trial court's findings and then demonstrate that even viewing it in the light most favorable to the court below, the evidence is insufficient to support the findings. See, e.g., Charlton v. Hackett, 11 Utah 2d 389, 390, 360 P.2d 176 (1961); Hutcheson v. Gleave, Utah, 632 P.2d 815 (1981); Kohler v. Garden City, Utah, 639 P.2d 162, 165 (1981); Hal Taylor Associates v. UnionAmerica, Inc., Utah, 657 P.2d 743 (1982). Erickson has not begun to carry that heavy burden. Nowhere does he marshal the evidence supporting his version of the facts, much less the evidence supporting the trial court's findings. Under these circumstances, we decline to further consider Erickson's attack on the factual findings.

We next consider Erickson's claim that the trial court erred in its conclusions of law. The standard of review differs from that applicable to factual findings; we accord conclusions of law no particular deference, but review them for correctness. See, e.g., Automotive Manufacturers Warehouse, Inc. v. Service Auto Parts, Inc., Utah, 596 P.2d 1033, 1036 (1979); Betenson v. Call Auto & Equipment Sales, Inc., Utah, 645 P.2d 684, 686 (1982). Erickson first attacks the trial court's conclusion that, as a matter of law, the sale was commercially reasonable. Section 70A-9-504(3) of the Code requires that a disposition of collateral must be commercially reasonable in every aspect. Erickson claims that section 70A-9-507(2) describes what is necessary to satisfy the standard of commercial reasonableness. It provides:

The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner.

U.C.A., 1953, § 70A-9-507(2) (1980 ed.). Erickson argues that for a sale to have been commercially reasonable, it must have been handled in one of the three modes set out in the above-quoted section. He then asserts that under the facts as he perceives them, none of these three standards have been met. His argument is without merit. Even if we were to assume that the facts as found by the...