Summary 2010 WY 56

Summary of Decision issued April 28, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: M&M Auto Outlet v. Hill Investment Corp.

Citation: 2010 WY 56

Docket Number: S-09-0160

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant M&M: Stephen R. Winship of Winship & Winship, PC, Casper, Wyoming.

Representing Appellee Hill: Richard D. Bush, David Evans and John A. Coppede of Hickey & Evans, LLP, Cheyenne, Wyoming.

Facts/Discussion: M&M and Hill, doing business as First Financial, Inc. (FFI) entered into a contract in which FFI agreed to purchase vehicle loans from M&M and perform collection activities on the loans at its expense. In the event an M&M customer became delinquent on a loan, the contract provided that M&M would pay FFI the “full recourse amount.” Alleging that M&M failed to pay the full recourse amount on delinquent loans in accordance with the contract, FFI filed a complaint for breach of contract.

Meaning of the contract: From the four corners of the agreement, it was clear the parties intended the agreement to be a full recourse agreement in which FFI would purchase from M&M the loans M&M made to its customers, M&M’s customers would then make payments on the loans directly to FFI and FFI, at its expense, was responsible for collection activities, except for repossession expenses. The disagreement concerns the lengths to which FFI was required to go in collecting payments, and that is something the agreement did not address. If M&M desired FFI’s collection efforts to include specific activities, it was free to incorporate the terms in the agreement.
Alleged Breach by FFI: M&M claimed it was excused from performing under the agreement because FFI breached the agreement when it failed to perform its collection activities in good faith. The agreement unambiguously provided that FFI was entitled to full recourse from M&M in cases where its collection activities proved unsuccessful. Because the parties’ business relationship spanned several years and both parties were experienced in the used car financing business, the Court was unwilling to infer that duties existed absent clear language in the contract or evidence indicating that was the parties’ intent at the time the agreement was executed.
Mitigation of damages: The contract clearly stated that in the event FFI was unsuccessful in collecting the amounts due, it was entitled to full recourse as expressly defined in the agreement. The agreement did not require FFI to repossess the vehicles as part of its collection activities. For the Court to conclude so would have imposed a duty on FFI that the contract did not require.
Sufficiency of the evidence to support summary judgment: W.R.C.P. 56(e) requires an affidavit be made on personal knowledge; set forth facts which are admissible in evidence; demonstrate the affiant’s competency to testify on the subject matter of the affidavit; and have attached to it the papers and documents to which it refers. Shaw, FFI’s general manager, attached a summary identifying the problem accounts, the date recourse was declared, buyback amount, accrued interest and the total due. The affidavit also included the full recourse program agreement and a list of the designated accounts he provided to M&M. W.R.E. 1006 provides that writings which cannot conveniently be examined in court may be presented in the form of a summary as long as the party makes the documents available for exam and copying by the opposing party. There was no contention that FFI did not make the actual documents available to M&M.
Prematurity of summary judgment: M&M asserted the summary judgment was premature because discovery had not been completed. On the same day as the summary judgment hearing, M&M signed a withdrawal of its motion to compel discovery stating that FFI had satisfactorily amended its discovery responses. Given that M&M stated it was satisfied with the discovery responses, the Court found no abuse of discretion in the district court’s denial of the motion for continuance.

Conclusion: M&M could have, but did not include specific collection activities in the contract with FFI. The Court declined to rewrite the agreement under the circumstances of the instant case. The agreement unambiguously provided that FFI was entitled to full recourse from M&M in cases where its collection activities proved unsuccessful. The agreement did not require FFI to repossess vehicles. The affidavit and documents provided for the motion for summary judgment were sufficient. M&M’s argument that discovery was not complete and so its motion for continuance should have been granted was not borne out by the record.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2ao9n7l .

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