Opinion
July 15, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Bernard D. Morley, Harlan P. Pelz, Denver, for plaintiff-appellant.
No appearance of defendants-appellees.
ENOCH, Judge.
This action was brought to recover a deficiency judgment after sale of an automobile which secured a promissory note and credit agreement on which defendants had allegedly defaulted. Plaintiff appeals from a judgment dismissing its complaint upon motion of the defendants at the close of plaintiff's case. We vacate and remand to the district court for entry of findings of fact.
Trial to the court was held October 18, 1974. Plaintiff put on evidence to the effect that it was assignee of the note and agreement, had repossessed the automobile which secured it, had sent notice of repossession and sale to defendants, had in fact sold the car, and that a deficiency was still owed above the sale price. At the close of plaintiff's case, defendants moved to dismiss. Their counsel contended that plaintiff had failed to give defendants reasonable notice of the sale of the collateral pursuant to the Uniform Commercial Code, s 4--9--504(3), C.R.S.1973. Therefore, he argued, plaintiff could not prove market value of the collateral solely by the price received for the automobile, and since it had not introduced any other evidence of market value, plaintiff had failed to meet its burden of proof that a deficiency existed. The court took this motion under advisement, then three days later issued a written order dismissing the complaint but without making either findings of fact or conclusions of law.
Plaintiff has raised several points of alleged error; however, we need to consider only the allegation directed to the trial court's failure to make findings.
Where trial is to the court without a jury and the plaintiff has completed his case, defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. C.R.C.P. 41(b)(1). The rule further provides that:
'If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).'
Where the court has granted defendants' motion to dismiss at the close of plaintiff's case in a trial to the court without a jury, the court is the finder of fact and the question on review is whether a judgment in favor of the defendant was justified on plaintiff's evidence. Rubens v. Pember, 170 Colo. 182, 460 P.2d 803; First National Bank v. Groussman, 29 Colo.App. 215, 483 P.2d 398. However, where no findings of fact have been made, as in the instant case, there is no basis upon which the appellate court can determine the ground on which the decision was based, and it is necessary to vacate the judgment and remand the case for appropriate findings of fact. Mowry v. Jackson, 140 Colo. 197, 343 P.2d 833.
The judgment is vacated and the cause is remanded with directions to enter findings of fact, conclusions of law, and an appropriate judgment thereon.
RULAND and KELLY, JJ., concur.