Hull v. D. Irvin Transport Ltd.

690 P.2d 414, 213 Mont. 75, 1984 Mont. LEXIS 1079
CourtMontana Supreme Court
DecidedOctober 23, 1984
Docket83-316
StatusPublished
Cited by13 cases

This text of 690 P.2d 414 (Hull v. D. Irvin Transport Ltd.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hull v. D. Irvin Transport Ltd., 690 P.2d 414, 213 Mont. 75, 1984 Mont. LEXIS 1079 (Mo. 1984).

Opinions

MR. JUSTICE HARRISON

delivered the Opinion of the Court.

[77]*77This case is a priority dispute between Hull and McAlpine, Montana residents who obtained judgments and then attached certain semi-truck trailers and tractors of defendants, and Clarkson and Fruehauf, Canadian corporations which claimed prior security interests in the vehicles. Clarkson and Fruehauf appeal from the order of the Eighth Judicial District Court, Cascade County, granting summary judgment in favor of Hull and McAlpine. The property in question consists of nine trailers and/or semi-trucks. For the sake of simplicity they will be referred to as units 1 through 9 throughout this opinion.

During 1980 and 1981, Hull and McAlpine entered into written agreements with defendants D. Irvin Transport, Ltd., (hereinafter Irvin) and Spencer Group (hereinafter Spencer Group). Spencer Group is a Canadian unincorporated association consisting of Spencer Contract Hauling, Ltd., a Canadian corporation, Trochu Trucking Services, Ltd., (Trochu), a Canadian corporation, D. Irvin Transport, Ltd., a Canadian corporation, and other corporations not involved here. Hull and McAlpine are both Montana residents and U.S. citizens. As provided in the agreements, Hull and McApline leased trucks owned by them to Irvin and Spencer Group for the purpose of hauling cargo in and throughout Canada and the listed states. The transportation of cargo was done in the names of either Irvin or Trochu.

Fruehauf is a corporation which manufactures trailers for semi-trucks. It sold two trailers, units 1 and 2, to Spencer Contract Hauling in August of 1981, by means of a “Conditional sales contract,” which retained title to the trailers in Fruehauf until the total purchase price was paid. The contract was signed and registered with the Alberta Vehicle Registry.

On February 3, 1977, Spencer Group executed a demand debenture to evidence a loan of certain sums from the Canadian Imperial Bank of Commerce (hereinafter the Bank). Under the terms of the debenture, Spencer Contract Haul[78]*78ing granted the Bank a security interest in all of Spencer Contract Hauling’s personal property whenever acquired and wherever located. One of the remedies in case of default provided by the debenture is the appointment of a receiver, who is authorized to take possession of and liquidate all of Spencer Contract Hauling’s personal property among other powers. Spencer Contract Hauling defaulted and on December 29, 1981, the Bank appointed Clarkson as receiver of Spencer Contract Hauling in accordance with the terms of the demand debenture. Stan Spencer, apparently the president or head of Spencer Group, accepted the appointment of Clarkson as receiver.

On December 21, 1981, Spencer Group sent a form letter to all leased operators, including Hull and McAlpine, notifying them that they would not be paid the amounts owed them under the hauling contracts due to a lack of available funds. They were also notified that the Bank would be appointing a receiver of the assets and affairs of Spencer Contract Hauling. Nevertheless, fertilizer was loaded by Spencer Group onto units 1 and 2, the Fruehauf trailers, and Hull transported the fertilizer from Calgary to Butte. After doing so, Hull pulled the trailers to his home in Teton County and parked them. McAlpine was in California pulling units 3 and 4 when he received his notice. When he returned to Montana, he parked the units at his residence in Teton County also. They promptly contacted Spencer Group about being paid, and when told they would not be paid brought the underlying action.

The complaint was filed on January 7, 1982. Hull and McAlpine contacted Fruehauf to ascertain the value of the units, and Fruehauf personnel mentioned that Spencer Group owed them money. However, they did not mention any claimed mortgages or security interests in the property. Units 1 through 4 were attached by the sheriff of Teton County on January 7. On January 8, unit 5 was attached by the sheriff of Silver Bow County. Units 6, 7 and 8 were attached on January 20 by the sheriff of Cascade County, and [79]*79on that same day, unit 9 was attached by the sheriff of Missoula County. All nine units were attached pursuant to writs of attachment issued out of the District Court of the Eighth Judicial District for Cascade County. All are registered in Alberta, Canada, and have either a rated capacity or a load carrying axle of at least 10,000 pounds. The Alberta registrations name Irvin as the owner of all units except unit 5, which is registered to Trochu.

After filing the complaint, a copy of it and the summons were served on Charles Irvin in Toole County as “Director of D. Irvin Transport, Ltd.” and as “Associate of Spencer Group.” On January 27, 1982, Clarkson filed a motion to intervene as defendant or to substitute it in place of Spencer Contract Hauling. On the same day it also filed a motion to quash the writs of attachment. The motions were denied for failure of Clarkson to plead a claim or defense as required by rule 24(c), M.R.Civ.P. Having failed to appear and plead, defaults were entered against the defendants on January 29, 1982. Hull recovered a judgment in the amount of $74,811.51 and McAlpine recovered a judgment in the amount of $101,176.13.

On February 23, 1981, Clarkson again moved to intervene and quash the attachment. Fruehauf moved to intervene on March 4, 1982. The basis of Clarkson’s motion was that Spencer Contract Hauling had no equity in the attached vehicles, that the vehicles were in the control of Spencer Contract Hauling, not Irvin or Trochu, and as such its appointment as receiver gave it a claim to the vehicles prior in time to Hull’s and McAlpine’s. Clarkson also contends that five of the vehicles are encumbered by a prior security interest held by Commerce Leasing and Bow-Mac Leasing, by virtue of their having leased the vehicles to Spencer Contract Hauling. Both leasing companies have appointed Clarkson as their agent for purposes of this case. The basis of Fruehauf’s motion was that it had title to the two trailers, units 1 and 2, pursuant to the conditional sales contract. Both Clarkson and Fruehauf were allowed to intervene.

[80]*80Neither Fruehauf, Clarkson or the Bank has caused any lien or encumbrance on the vehicles to be filed in Montana. The Fruehauf conditional sales contract covering units 1 and 2 was registered with the Alberta Office of Vehicle Registry on September 8, 1981. Under Alberta law, certificates of title are not given, provided or required on motor vehicles. The Motor Vehicles Division registers the owners of vehicles operating out of Alberta and issues vehicle registrations. A different office, the Office of Vehicle Registry, Personal Property Registration Branch, maintains the records of liens and encumbrances on motor vehicles operating out of Alberta. Liens and encumbrances are to be filed in that office to be perfected.

Hull, McAlpine, Clarkson and Fruehauf all moved for summary judgment, claiming that their respective encumbrances or attachments, had priority over the other parties’. After the issues were briefed and argued the District Court ruled in favor of Hull and McAlpine. An extensive memorandum was filed in support of this ruling, where the District Court advanced several grounds which it felt either individually or alternatively were sufficient to require such a result. These alternative grounds include the court’s reading of Montana public policy, and several Montana and federal statutory provisions.

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Hull v. D. Irvin Transport Ltd.
690 P.2d 414 (Montana Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
690 P.2d 414, 213 Mont. 75, 1984 Mont. LEXIS 1079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hull-v-d-irvin-transport-ltd-mont-1984.