862 P.2d 1120 (Mont. 1993), 93-301, Colorado Nat. Bank of Denver v. Story

Docket Nº:93-301.
Citation:862 P.2d 1120, 261 Mont. 375
Opinion Judge:[8] JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT.
Party Name:COLORADO NATIONAL BANK OF DENVER, a National Banking Association, Plaintiff and Respondent, v. Mark C. STORY and Judy Story, Defendants and Appellants.
Attorney:[7] For Defendants and Appellants: Gregory O. Morgan, Attorney at Law, Bozeman. For Plaintiff and Respondent: Keith A. Christie; Peterson & Schofield, Billings.
Case Date:November 02, 1993
Court:Supreme Court of Montana

Page 1120

862 P.2d 1120 (Mont. 1993)

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.

November 2, 1993

Submitted on Briefs Sept. 9, 1993.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding.

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[261 Mont. 376] 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, [261 Mont. 377] 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

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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...

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