Scharf v. BMG Corp.

Decision Date16 April 1985
Docket NumberNo. 18963,18963
Citation700 P.2d 1068
Parties40 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.
CourtUtah Supreme Court

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

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


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.


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 lower court do not show that the collateral was disposed of...

To continue reading

Request your trial
149 cases
  • Carter v. Utah Power & Light Co., 870340
    • United States
    • Utah Supreme Court
    • October 22, 1990
    ...particular deference. E.g., Transamerica Cash Reserve, Inc. v. Dixie Power & Water, Inc., 789 P.2d 24, 25 (Utah 1990); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). It is important at the outset to observe that the question presented is only whether the public has a "right to inspec......
  • Reeves v. Gentile
    • United States
    • Utah Supreme Court
    • May 17, 1991
    ...v. Thomas, 705 P.2d 766, 769 (Utah 1985).2 See, e.g., Creer v. Valley Bank & Trust Co., 770 P.2d 113, 114 (Utah 1989); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985); Gonzales v. Morris, 610 P.2d 1285, 1286 (Utah 1980).3 See, e.g., American Coal Co. v. Sandstrom, 689 P.2d 1, 3 (Utah 1......
  • State v. Sampson
    • United States
    • Utah Court of Appeals
    • September 11, 1990
    ...deference to the trial court's conclusions, although couched as findings, but, rather, review them for correctness. Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court stated that "t......
  • Crookston v. Fire Ins. Exchange
    • United States
    • Utah Supreme Court
    • June 28, 1991
    ...light most favorable to the verdict. E.g., Morgan v. Quailbrook Condominium Co., 704 P.2d 573, 577 n. 3 (Utah 1985); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). Here, Fire Insurance has made no attempt to marshal the evidence in support of the jury finding of fraud. In fact, all F......
  • Request a trial to view additional results
3 books & journal articles
  • Utah Standards of Appellate Review
    • United States
    • Utah State Bar Utah Bar Journal No. 7-8, October 1994
    • Invalid date
    ...Mutual of Omaha Ins. Co., 776 P.2d 896, 899-900 (Utah 1989); In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989); Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985); In re Estate of Hamilton, 869 P.2d 971, 977 (Utah App. 1994); Willey v. Willey, 866 P.2d 547, 551 n.2 (Utah App. 1993); ......
  • Young Lawyers Division
    • United States
    • Utah State Bar Utah Bar Journal No. 28-2, April 2015
    • Invalid date
    ...decision] in the light most favorable to the court below, the evidence is insufficient to support the findings.” Scharf v. BMG Corp., 700 P.2d 1068, 1070. Somewhere in its development, however, the marshaling doctrine evolved from a general principle of appellate persuasion into an unbounde......
  • First (annual?) Appellate Practice Section Poetry Contest Winners
    • United States
    • Utah State Bar Utah Bar Journal No. 20-7, November 2007
    • Invalid date
    ...fifty. - Scott Crook Honorable Mention Briefing Cramming Niagara Into a soda can - with A one-inch margin. - Scott M. Ellsworth 1. 700 P.2d 1068 (Utah 2. Charlton v. Hackett, 11 Utah 2d 389, 390, 3360 P.2d 176 (1961); Hutcheson v. Gleave, Utah, 6632 P.2d 815 (1981); Kohler v. Garden City, U......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT