Timms v. James, No. 3542-III-5
| Court | Court of Appeals of Washington |
| Writing for the Court | MUNSON |
| Citation | 621 P.2d 798,28 Wn.App. 76 |
| Docket Number | No. 3542-III-5 |
| Decision Date | 30 December 1980 |
| Parties | , 30 UCC Rep.Serv. 1778 Russell B. TIMMS and Joan Timms, his wife, Respondents, v. Thomas W. JAMES and Elenora James, his wife, Appellants. |
Page 76
v.
Thomas W. JAMES and Elenora James, his wife, Appellants.
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[621 P.2d 799] Tom G. Cordell, Collins & Hansen, Ephrata, for appellants.
Robert A. Castrodale, Grand Coulee, for respondents.
MUNSON, Judge.
Dr. James 1 appeals a judgment awarding damages to Dr. Timms for breach of contract. We reverse in part and remand for further proceedings on the issue of commercially reasonable resale of the collateral.
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In 1973, Dr. Timms set up a dental practice in Grand Coulee, Washington, by purchasing dental equipment from Burkhart Dental Supply Company (Burkhart). This purchase, along with office expenses for 2 months, was financed by a $69,000 loan from Seattle-First National Bank (bank). Burkhart obtained a security agreement from Dr. Timms, cosigned his note at the bank, and assigned the security agreement to the bank.
In 1976, Dr. Timms decided to sell his now-active dental practice and move to Alaska. In April, he notified his patients his office was to close on June 30, the date on which he was ceasing his practice in Grand Coulee. In late August, Dr. James, a Tacoma dentist, contacted Dr. Timms having heard that the dental practice was for sale. Dr. Timms chartered an airplane and flew to Grand Coulee where the parties met to look over the office and equipment. They signed a preliminary sale agreement providing that Dr. James was to take over Dr. Timms' office equipment and records and Dr. James would assume Dr. Timms' obligations for payment on dental equipment, rent and other expenses.
Thereafter, Drs. Timms and James flew to Yakima and talked to Burkhart and the bank. They signed an "Assignment of Interest in Conditional Sale Contract Security Agreement" wherein the bank retained a security interest in the dental equipment; Burkhart and the bank consented to this assignment. Dr. Timms' liability had been reduced to approximately $45,000 by this time; he remained liable on the obligation.
Dr. James did not generate enough cash income from his practice to remain in business. After defaulting on his rent, the landlord locked him out of the office. Unable to continue his practice in Grand Coulee, Dr. James has since been practicing dentistry in Modesto, California. In January 1977, Burkhart paid the bank the $45,000 which was due at the time Dr. James defaulted. Ten months later in October 1977, Burkhart sold the dental equipment, which had remained in the Grand Coulee office, for $29,000 and
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made demand upon Dr. Timms for the $16,000 deficiency. Dr. Timms borrowed the money from the bank, paid Burkhart, and then sued Dr. James for that amount. The trial court awarded Dr. Timms judgment; Dr. James appeals. We note four issues:1. Dr. James contends there is no evidence the resale of the dental equipment was carried out in a commercially reasonable manner. Dr. Timms argues this contention was not pleaded as an issue. It was alluded to in the interrogatories, however, and argued without objection. No evidence was offered on the issue, either as to the proper notice being given or the reasonableness of the sale. There is testimony from Dr. Timms the value of the equipment was between $35,000 and $40,000. Although the court made no specific finding as to the reasonableness of the sale, whether the sale [621 P.2d 800] was conducted in such a manner is an issue of fact. Mount Vernon Dodge, Inc. v. Seattle-First National Bank, 18 Wash.App. 569, 570 P.2d 702 (1977).
Pursuant to RCW 62A.9-504(3), a secured creditor has the burden of proving that resale of collateral was accomplished in a commercially reasonable manner. Mount Vernon Dodge, Inc. v. Seattle-First National Bank, supra. Dr. Timms as the original debtor, stands in the shoes of the creditor,...
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Greathouse v. Charter Nat. Bank-Southwest, BANK-SOUTHWES
...576 (1987) (preserved issue by raising in closing argument and post-trial motion for reconsideration); Timms v. James, 28 Wash.App. 76, 621 P.2d 798 (1980) (raised in 6 Burdick v. Tucker, 780 P.2d 34 (Colo.Ct.App.1989) (when secured party does not comply with notice provisions, a rebuttable......
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Marriage of Allen, In re, 3467-III-4
...court erred. However, we may affirm the trial court on any theory within the pleadings and the proof. Timms v. James, 28 Wash.App. 76, 81, 621 P.2d 798 (1980); Frontier Lanes v. Canadian Indemnity Co., 26 Wash.App. 342, 347, 613 P.2d 166 (1980). Accordingly, we affirm the trial court on two......
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Sunjet, Inc. v. Ford Motor Credit Co., 05-85-00276-CV
...Corporation v. DeLong, 140 Vt. 292, 437 A.2d 1100 (1981); In re Thomas, 12 U.C.C.R.S. 578 (W.D.Va.1973); Timms v. James, 28 Wash.App. 76, 621 P.2d 798 (Wash.Ct.App.1980); First National Bank of Kenosha v. Hinrichs, 90 Wis.2d 214, 279 N.W.2d 449 (1979). The same rule has even been held to ap......
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Security State Bank v. Burk, 24611-2-II.
...99 Wash.2d at 205, 660 P.2d 760 (citing Browning v. Ward, 70 Wash.2d 45, 48, 422 P.2d 12 (1966)); Timms v. James, 28 Wash.App. 76, 79, 80, 621 P.2d 798 The record shows that the Bank adequately advertised the sale of Tri County's assets. But the Bank has not rebutted the Burks' contention t......
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Greathouse v. Charter Nat. Bank-Southwest, BANK-SOUTHWES
...576 (1987) (preserved issue by raising in closing argument and post-trial motion for reconsideration); Timms v. James, 28 Wash.App. 76, 621 P.2d 798 (1980) (raised in 6 Burdick v. Tucker, 780 P.2d 34 (Colo.Ct.App.1989) (when secured party does not comply with notice provisions, a rebuttable......
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Marriage of Allen, In re, 3467-III-4
...court erred. However, we may affirm the trial court on any theory within the pleadings and the proof. Timms v. James, 28 Wash.App. 76, 81, 621 P.2d 798 (1980); Frontier Lanes v. Canadian Indemnity Co., 26 Wash.App. 342, 347, 613 P.2d 166 (1980). Accordingly, we affirm the trial court on two......
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Sunjet, Inc. v. Ford Motor Credit Co., 05-85-00276-CV
...Corporation v. DeLong, 140 Vt. 292, 437 A.2d 1100 (1981); In re Thomas, 12 U.C.C.R.S. 578 (W.D.Va.1973); Timms v. James, 28 Wash.App. 76, 621 P.2d 798 (Wash.Ct.App.1980); First National Bank of Kenosha v. Hinrichs, 90 Wis.2d 214, 279 N.W.2d 449 (1979). The same rule has even been held to ap......
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Security State Bank v. Burk, 24611-2-II.
...99 Wash.2d at 205, 660 P.2d 760 (citing Browning v. Ward, 70 Wash.2d 45, 48, 422 P.2d 12 (1966)); Timms v. James, 28 Wash.App. 76, 79, 80, 621 P.2d 798 The record shows that the Bank adequately advertised the sale of Tri County's assets. But the Bank has not rebutted the Burks' contention t......