                                   NO.      95-230
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995


AGRICULTURAL EXPRESS, INC.,
a Montana Corporation,
              Plaintiff    and Respondent,
         v.
GUY R. MILLER,
              Defendant    and Appellant.



APPEAL FROM:          District  Court of the Thirteenth Judicial District,
                      In and for the County of Yellowstone,
                      The Honorable Diane G. Barz, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                      Henry R. Crane,    Attorney      at Law, Missoula,
                      Montana

              For Respondent:
                      Scott G. Gratton;   Brown Gerbase, Cebull,           Fulton,
                      Harman & Ross, Billings,   Montana



                                     Submitted       on Briefs:   August 17, 1995
                                                       Decided:   September 3, 1995
Filed:
Justice       Karla          M. Gray delivered                    the Opinion                 of the Court.



        Guy      R.     Miller         (Miller)            appeals            from      the     judgment        entered      by
the Thirteenth                 Judicial          District          Court,            Yellowstone        County,       on its
order      granting            summary judgment                   in favor             of Agricultural             Express,
Inc.       (Ag        Express)             and      denying             his          cross-motion           for     summary
judgment.             We affirm.
        The issue               on appeal           is      whether            the District             Court      erred     in
granting         Ag Express'                motion          for       summary judgment                  and in      denying
Miller's         motion         for     summary judgment.
        The facts               of    this        case are              relatively             straightforward             and
essentially             undisputed.               Miller          is a professional                 truck       driver;     Ag
Express       is       engaged         in     the        trucking             business.           In the          autumn     of
1993,      the        parties         entered         into        two written                 agreements.           Under a
Loan and Security                 Agreement              (Agreement),                Miller     borrowed        $71,855.95
from Ag Express,                  to be repaid              in 84 semi-monthly                    installments             of a
sum certain,             which included               principal               and interest.             The purpose         of
the Agreement                was to          enable         Miller        to purchase              a 1994 Peterbilt
truck      from Ag Express.                      The Agreement                  provided         that    the truck         was
collateral             for      Miller's          payment          of     the         loan     and that         Ag Express
retained         a security            interest           in the truck.                  Under an Owner Operator
Agreement,            Miller         undertook           to operate             the truck        exclusively          for Ag
Express'         trucking            business        for      the full           term of the truck                purchase.
This agreement               provided         Ag Express              with       the services            of both Miller
and the truck,                 and gave Miller                a means of generating                       income during
the period            of the loan and payments.
                                                                  2
          Miller        made the required                  payments for             a period           of some months.
In July          of     1994,     Miller          terminated            the Owner Operator                      Agreement.
Miller         did      not      make loan           payments            after       that         time      and did        not
return         the truck          or offer          to return            the truck.
          In      November of              1994,      Ag Express             filed          a complaint             against
Miller         for      repossession              and     claim         and delivery.                  Miller      did     not
file      an answer;             instead,         he moved for              summary judgment,                    asserting
entitlement              to judgment           as a matter              of law.          Miller        argued that         the
loan       was void             under       the     Montana             Consumer          Loan Act              because      Ag
Express         had violated            certain           licensing         and disclosure                  requirements
contained             in § 32-S-303            et seq.,           MCA. He also              argued that,           because
the Agreement                 was a retail          installment            contract            under 5 31-l-202              et
seq.,      MCA, which did not meet the requirements                                            of § 31-l-231,             MCA,
he was entitled                 to rescission              of the Agreement                    pursuant         to § 31-I-
232,      MCA.         Ag Express           filed         a cross-motion                 for      summary judgment,
asserting             its      entitlement           to     possession              of      the     truck        under     the
Montana Uniform                  Commercial          Code (MUCC).
          After        full     briefing        and oral          argument          on the parties'               motions,
the      District             Court     denied       Miller's            motion          for      summary judgment,
granted          Ag Express'             motion           and ordered              Miller         to     turn     over     the
truck       to        Ag Express.                 Thereafter,             the       court         entered         an order
correcting             clerical         mistakes          in its         earlier         order         and memorandum.
The       court         then      entered           its      judgment              and      order         of     delivery,
certifying             the judgment            as final           for    purposes           of appeal           under Rule
54(b),         M.R.Civ.P.             Miller        appeals.



                                                                  3
           Did the District   Court err in granting Ag Express' motion
           for summary judgment and in denying Miller's      motion for
           summary  judgment?
           Our     review         of     an order               granting             or        denying         a motion              for

summary judgment                  is de nova and we utilize                               the     same     criteria          as the
district          court.         Spain-Morrow                 Ranch, Inc.                v. West (1994),              264 Mont.
441,       444,     872 P.2d 330,                 331-32.                Summary judgment                    is proper            only
when no genuine                  issue      of    material               fact      exists         and the moving party
is     entitled            to      judgment              as      a       matter           of      law.             Rule      56(c),
M.R.Civ.P.;              Spain-Morrow,                  872 P.2d at 331-32.
           Here,         the     District              Court         granted             Ag Express'                motion           for
summary judgment                   and denied             Miller's                motion        for      summary judgment
based       on its             conclusions              that         the        MUCC entitled                Ag Express               to
immediate           possession               of         the      property                which          secured           Miller's
obligation           as a matter                 of law and that                    the Montana Consumer Loan
Act    does not            apply        to the          transaction                 at     issue.            The court            also
implicitly               concluded               that          the        Agreement               was        not      a      retail
installment              contract        under the Montana Retail                               Installment           Sales Act
(Retail           Act)         because           the      transaction                    was      for      a       business           or
commercial--rather                     than a consumer--purpose.                                We review           conclusions
of law to determine                    whether           they are correct.                        Steer,       Inc.       v. Dep't
of Revenue           (1990),           245 Mont.              470,       474,      803 P.2d 601,                   603.
           We note         at the outset                that         Miller        does not assert                   error        with
regard       to the District                     Court's         conclusion                 concerning              the Montana
Consumer Loan Act.                     Nor does Miller                     assert         error       with     regard        to the
court's          basic         conclusion          that        the MUCC applies                       to the transaction
at     issue.             He argues               only         that         the      District            Court            erred       in

                                                                     4
implicitly            concluding             that     the Retail             Act does not apply.
          The entirety            of Miller's                   argument       is based on the statutory
definitions             contained            in     the Retail             Act.         He argues         that,          under
those       definitions,               the        Retail         Act      clearly       is     applicable            to    the
truck      transaction           and the Agreement between himself                                 and Ag Express.
We disagree.
          The Retail            Act        defines         a retail         installment           contract              as "an
agreement        evidencing                a retail          installment             transaction              .      . under
which      a buyer promises                  to pay in one or                 more      deferred         installments
the time       sale price              of goods or services,                        or both."           Section          31-L
202(n),       MCA.        A "retail               installment             transaction"            is defined             as "a
written       contract           to sell            or furnish             . . . goods or services                        by a
retail       seller       to a retail               buyer        . . . .'I        Section       31-1-202(o),              MCA.
A "retail             seller"         is     defined            as     "a person             who sells            goods       or
furnishes        services             to a retail               buyer.      . . .I'       Section        31-1-202(p),
MCA.       Finally,           a "retail             buyer"        is     defined        as "a person               who buys
goods or obtains                services            from a retail             seller.         . . .I'     Section          31-
l-202(1),        MCA.
          These definitions                    are,        at     best,      circuitous           and incomplete.
The word         "retail"             is     contained            in      each definition               necessary             to
resolve       both       whether            a contract            is     a retail        installment               contract
and whether             a transaction                 is        a retail            installment          transaction.
Yet,      the word "retail"                  is never defined.                    Thus, we cannot                 ascertain
from the plain                language            of the Retail             Act whether            the legislature
intended         it      to     cover         agreements               and transactions                  of       the     type
presently        before         us or,        in the alternative,                     whether      the legislative

                                                                  5
intent        was to limit           the Retail            Act to sales/purchases                        of ltc~n~~mer"
goods,        usually        defined         in      such protective                    statutory           schemes          as
goods purchased                primarily            for      personal,           family          or household            use
rather        than for       business        purposes.                 See, e.q.,         15 U.S.C.              § 1602(h)
(defining         "consumer,"              used with            reference             to credit           transactions
under the federal               Truth       in Lending Act,                as relating              to transactions
involving         money or            property             primarily            for      personal,             family        or
household        purposes);           Mid-Wood,             Inc.       v. Digby         (Ohio App. 19821,                451
N.E.2d        526 (goods purchased                   for     use in commercial                   farming          business
not within         purview         of Ohio's              retail        installment            sales        act because
purchase         was for          a business               or       commercial           purpose);             Rigdon        v.
Walker        Sales      & Service,               Inc.          (Ga.     App.         1982),        288 S.E.2d           711
(Georgia's         retail         installment              and home solicitation                         sales     act not
applicable         to purchase             of combine for                commercial            farming           operation
because        combine         not personalty                purchased           primarily            for        personal,
family        or household           use).
         As     noted       above,         Miller           relies        entirely             on    the         statutory
definitions           which       we determine               are not dispositive                     here.         He does
not present        legislative             history,             cases from other               jurisdictions,                or
other     authorities             supporting              his       contention          that        the legislature
intended        the Retail           Act     to apply               to the transaction                   and Agreement
presently        before        us.      As a result,                 we conclude          that       Miller        has not
met his        burden       of establishing                  error       by the District                  Court.
         We hold        that      the District                  Court     did     not      err      in     granting          Ag
Express'        motion      for      summary judgment                  and in denying               Miller's         motion
for     summary judgment.

                                                                6
       Affirmed.
       Pursuant    to Section    I,    Paragraph     3(c),     Montana Supreme Court
1988 Internal      Operating    Rules,    this   decision      shall   not be cited          as
precedent    and shall   be published       by its    filing    as a public       document
with   the Clerk    of the Supreme Court           and by a report       of its     result
to Montana Law Week, State            Reporter     and West Publishing        Company.




                                            7
