Dennison v. Allen Group Leasing Corp., 23548
| Decision Date | 30 March 1994 |
| Docket Number | No. 23548,23548 |
| Citation | 871 P.2d 288,110 Nev. 181 |
| Parties | , 24 UCC Rep.Serv.2d 1357 Timothy DENNISON, Appellant, v. ALLEN GROUP LEASING CORP., Respondent. |
| Court | Nevada Supreme Court |
Kevin C. Sewell, Las Vegas, for appellant.
Wanderer & Wanderer and Nancy Killeen, Las Vegas, for respondent.
FACTS
On April 1, 1987, appellant Timothy Dennison entered into a sixty-month lease with respondent Allen Group Leasing Corp. ("Allen") for two pieces of automobile repair equipment: a Model # 53-500 EPA Monitoring Machine (plus 02) and a Model # 62-010 Smart Engine Analyzer. Allen claims that Dennison quit making lease payments in August of that same year. Dennison insists that he made timely payments until December, 1987, when he left the failing business to a partner. In any event, Allen repossessed the equipment from Dennison's former partner in early 1988.
On March 3, 1988, Allen sent to Dennison's home address a "notice of public sale of repossessed personal property." The notice informed Dennison that the repossessed equipment, identified as an "Allen Engine Analyzer Model # 53-350; 62-110; 60-080," would be sold on April 8, 1988. Dennison, denying receipt of the notice, did not attend the sale.
The equipment identified in the notice of sale may or may not be the same equipment Dennison leased from Allen. The lease identified two pieces of equipment; the notice of sale only identified one. Moreover, the equipment title and model numbers in the notice of sale are different from the title and model numbers contained in the lease, and the serial numbers identified in the notice of sale do not exactly correspond to the serial numbers identified in the lease.
The discrepancy between the equipment specified in the lease and the items repossessed and purportedly resold was widened by the financing statement Allen filed with the California Secretary of State. Like the notice of sale, the financing statement only refers to one piece of leased equipment, an "Allen Engine Analyzer," which is not so described or identified in the lease. Unlike the notice of sale, however, the financing statement refers to "Model # 62-010," which does correspond to the model number of the engine analyzer set forth in the lease. Allen sought to dispel the apparent inconsistencies between the various documents by submitting affidavits from two of its employees. 1
According to Allen, Dennison's total obligation under the lease at the time the equipment was sold was $27,637.68. The equipment allegedly resold for $16,234.87, leaving a deficiency of $11,402.81. However, a rebate of unearned interest reduced the deficiency amount to $5,590.26. There are no details of the public sale in the record and there is no record evidence to support Allen's contention that Dennison's total liability was $27,637.68 at the time of the sale, or that the repossessed equipment was sold for $16,234.87.
Both parties agree that California law applies. Section 9504(3) of the California Commercial Code requires Allen to publish notice of the public sale in a "newspaper of general circulation published in the county in which the sale is to be held." Allen presented an invoice from the L.A. Times that it claims is a "true and correct copy ... proving advertisement of the sale of the repossessed equipment." The invoice contains no reference to Dennison, Dennison's business, or the subject equipment. More importantly, the invoice does not reveal the content of the purported advertisement, nor is a copy of the advertisement Allen filed a very brief, one and one-half page motion for summary judgment, with no supporting documents or affidavits. 2 Dennison responded by challenging the identification of the equipment that was repossessed and purportedly resold, the reasonableness of the public sale, and the amount of the deficiency. The district court granted summary judgment in favor of Allen and this appeal followed.
found in the record. Absent Allen's above-referenced assertion, there is no discernible relationship between the invoice and Dennison or the leased equipment. In fact, there is nothing in the record to indicate that a public sale of the repossessed equipment ever occurred.
Summary judgment is only appropriate when no genuine issues of material fact remain for trial and the moving party is entitled to judgment as a matter of law. NRCP 56(c). When considering a motion for summary judgment, district courts must review the record in the light most favorable to the party against whom the summary judgment is sought. A party is entitled to a trial when there is the slightest doubt as to any material facts. Walker v. American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61 (1992).
Dennison concedes that the lease is in default and that he may owe a deficiency payment to Allen. However, Dennison contests Allen's depiction of the facts and argues that genuine issues of material fact exist with regard to the identity of the equipment resold by Allen, the commercial reasonableness of the sale, and Allen's calculation of the deficiency amount. Allen, minifying Dennison's assignments of error as "non-issues," claims there are no genuine issues of material fact because Dennison admits signing the subject lease, he has produced no evidence that the debt has been paid, and he has not produced any evidence to show that he is not liable for the deficiency resulting from the sale.
Although each of the material facts Dennison discusses may eventually be resolved in favor of Allen, they are currently in dispute and necessitate remanding the matter back to the district court for trial.
The lease specifically identifies two pieces of equipment; in contrast, the notice of sale identifies only one. It is impossible to determine from the record if the two documents refer to the exact same equipment. The notice of sale differs from the lease, in part, with respect to the equipment name and serial numbers, and is completely different with respect to the model numbers. Moreover, neither the financing statement filed by Allen nor the "Deficiency Balance" statement produced by Allen contain exact references to the equipment identified in the original lease. In sum, there is no telling what equipment was sold by Allen at the public sale, and based upon our holding in Clauson v. Lloyd, 103 Nev. 432, 743 P.2d 631 (1987), we refuse to accept the Allen employee affidavits as being...
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