Colorado Nat. Bank of Denver v. Story, 93-301

• Decision Date: 02 November 1993
• Docket Number: No. 93-301,93-301
• Citation: 261 Mont. 375,862 P.2d 1120
• Parties: COLORADO NATIONAL BANK OF DENVER, a National Banking Association, Plaintiff and Respondent, v. Mark C. STORY and Judy Story, Defendants and Appellants.
• Court: Montana Supreme Court

Page 1120

862 P.2d 1120

261 Mont. 375

COLORADO NATIONAL BANK OF DENVER, a National Banking Association, Plaintiff and Respondent, v. Mark C. STORY and Judy Story, Defendants and Appellants.

No. 93-301.

Supreme Court of Montana.

Submitted on Briefs Sept. 9, 1993.

Decided Nov. 2, 1993.

Gregory O. Morgan, Bozeman, for defendants and appellants.

Keith A. Christie, Peterson & Schofield, Billings, for plaintiff and respondent.

HARRISON, Justice.

Defendants appeal a judgment from the Eighteenth Judicial District Court, Gallatin County, finding them liable to the plaintiff for money due, as well as attorney's fees and costs. One issue is dispositive: what statute of limitations applies under the facts of this case?

Defendant Judy Story (Judy) applied for a Rocky Mountain BankAmericard (VISA card) around January 20, 1977, under her maiden name, Judy Johnson. The application itself contained no terms or conditions regarding the issuance of the VISA card. The Colorado National Bank of Denver (Bank) issued Judy a VISA card around January 27, 1977. After Judy married, she authorized her husband, defendant Mark Story (Mark), the use of the VISA card.

Judy and Mark both used the VISA card. Judy received statements in the mail and both Judy and Mark made payments to the Bank for the charges. The last payment Judy made was on October 10, 1986. On November 13, 1991, the Bank sued Mark and Judy for $5,074.52, the amount due on the VISA card account. The Bank also requested interest, costs and attorney's fees. Mark and Judy raised the statute of limitations defense, arguing that the debt was an account stated, which has a five-year statute of limitations, and that the action was time-barred.

A bench trial was held on March 19, 1993. At trial, the Bank introduced exhibits which included Judy's original application for the VISA card and numerous copies of billing statements which were sent to Judy. This was the only evidence regarding a written contract which was introduced. After the trial, the District Court entered Findings of Fact and Conclusions of Law in which it concluded that Judy's signature upon the application for a VISA card constituted a written acceptance of terms for a credit extension from the Bank, and that, therefore, a written contract existed. On that basis, the District Court concluded that an eight-year statute of limitations applied. In addition, the District Court found that Mark was jointly and severally liable for the debt because he was an authorized user of the VISA card. The District Court entered judgment for the Bank on the debt, and awarded attorney's fees and costs. From that judgment, Mark and Judy appeal. We reverse.

The critical issue in this appeal involves a conclusion of law--whether the District Court properly concluded that a written contract existed. When presented with a conclusion of law, our standard of review is whether the trial court's interpretation is correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

Section 27-2-202, MCA, provides, in pertinent part:

(1) The period prescribed for the commencement of an action upon any contract, obligation, or liability founded upon an instrument in writing is within 8 years.

(2) The period prescribed for the commencement of an action upon a contract, account, or promise not founded on an instrument in writing is within 5 years.

Pursuant to this statute, if the debt at issue was founded on a written contract, the present action is not time-barred. However, if the debt is an account stated, not based upon a written contract, then the present action is time-barred.

In this case, the...