No. 13812
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
HELGA IRIS YETTER,
Plaintiff and Respondent,
CHARLES C. R. KENNEDY and
REBECCA Z. KENNEDY, husband
and wife,
Defendants and Appellants.
Appeal from: District Court of the Eighteenth Judicial
District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellants:
Larry W. Moran argued, Bozeman, Montana
For Respondent:
Landoe, Gary and Planalp, Bozeman, Montana
Joseph Gary argued, Bozeman, Montana
Huppert and Swindlehurst, Livingston, Montana
Submitted: September 27, 1977
Decided: Noti 2 1 l,$'.T
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Filed:
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Plaintiff brought suit to have an option agreement for
the purchase of certain real property released and to recover
damages. The jury entered a special verdict determining that
the option agreement should not be released and finding no damages.
Plaintiff moved for and received a judgment notwithstanding the
verdict terminating defendants' rights to the option agreement.
Defendants filed notice of appeal. Plaintiff subsequently moved
to dismiss the appeal on the grounds defendants failed to trans-
mit a transcript to the Supreme Court.
Although this Court received no transcript, we have dis-
cerned the following facts from the trial court exhibits submitted
to this Court:
On October 13, 1967, plaintiff Helga Iris Yetter entered
into an agreement with J. Angus Christensen, of Salem, Utah, for
the sale of certain real property near West Yellowstone, Montana.
Incorporated in this agreement was a first option to purchase
certain other real property upon such terms and conditions as
Yetter offered it to any third party. This option was to extend
"for any reasonable period of time up to twenty years".
On December 1, 1967, plaintiff filed with the Gallatin
County Clerk and Recorder a standard form contract denominated
an "Option Contract". In it plaintiff agreed to hold the real
property she had subjected to the option, subject to the order
of Christensen until December 1 5 , 1987, and to transfer it to
him "at and for the price and upon such terms and conditions as
first party [Helga Yetter] may offer said property to any third
party, such option to continue until December 15, 1987, and
allowing a period of sixty days to meet such terms and conditions
On November 27, 1967, Christensen assigned to defendants,
Charles C. R and Rebecca Z. Kennedy:
.
" * * * all of his right, title and interest
in and to that certain Option Agreement made
and executed between HELGA IRIS YETTER of
Livingston, Park County, Montana, and the said
party of the first part [J. Angus Christensen],
dated November 12, 1967 * * * under the covenants,
conditions and terms of said Option."
On August 21, 1974, plaintiff entered into an agreement
with a partnership, which we shall refer to as the "Povah Partner-
ship", for the sale of approximately twenty-seven acres of the
real property subject to the option provision. Pursuant to that
agreement, plaintiff gave written notice to defendants of the
terms and conditions of the Povah Partnership's offer.
Although defendants informed plaintiff they intended to
purchase the real property, they did not make any payment within
the sixty day period provided in the December 1, 1967 option
contract. Four months later, they were still asking for further
time in which to make payment. At the same time they refused to
release their option agreement even though the sixty day period
had elapsed.
On February 14, 1975, the Povah Partnership withdrew its
offer and requested the return of its down payment because of
defendants' failure to release the option agreement.
At no time did defendants tender any purchase money as
they initially promised. After learning the Povah Partnership
had withdrawn its offer, they refused to release the option agree-
ment.
On April 3, 1975, Helga Yetter filed suit against Charles
C. R. and Rebecca Z. Kennedy seeking cancellation of the option
agreement, general damages resulting from loss of the sale and
impairment of her credit, plus punitive damages for slandering
her title. On March 10, 1977, the jury returned a special verdict
finding :
(1) That plaintiff had notified the defendants of an
offer from a third party to purchase the real property in ques-
tion.
(2) That plaintiff had notified the defendants of the
offer on September 13, 1974.
(3) That the sixty day period in which to meet the terms
and conditions of the Povah Partnership's offer expired November
12, 1974.
(4) That defendants should not be compelled to release
the "Option Agreement".
(5) That defendants had not interfered with the perform-
ance of the contract of sale between Yetter and the Povah Partner-
ship.
The jury did not award the plaintiff general or punitive damages.
The District Court entered judgment in accord with the special
verdict.
Plaintiff timely filed a motion for judgment notwith-
standing the verdict, requesting the District Court to enter judg-
ment declaring defendants had breached their option agreement and
to order them to release the "Option Agreement". The District
Court granted plaintiff's motion.
Although defendants filed notice of appeal on April 12,
1977, they never ordered a transcript of the trial from the court
reporter, nor was one ever transmitted to this Court for purposes
of the appeal. In addition, they failed to file and serve upon
the plaintiff within ten days after filing notice of appeal,
statements indicating they did not intend to transmit any portion
of the transcript to this Court and enumerating the issues they
intended to present on appeal.
On July 1, 1977, plaintiff filed a motion with this Court
to dismiss defendants' appeal due to their failure to order a
transcript of the trial proceedings and to transmit it to this
Court. We grant plaintiff's motion.
Rule 10(a), M.R.App.Civ.P., provides that the record on
appeal, including any transcript necessary for the determination
of the appeal, shall be transmitted to the Supreme Court within
40 days after filing a notice of appeal, unless that time is
shortened or extended by order of either the District Court or
the Supreme Court. Although the District Court file and the
exhibits from the District Court trial were sent to this Court,
the trial transcript was not included. Nor was any order to
extend the time to transmit the transcript requested or made.
Rule 9(b), M.R.App.Civ.P., delineates the duties of the
appellant in regard to ordering a transcript of the trial pro-
ceedings :
"Within 10 days after filing the notice of appeal
the appellant shall order from the reporter a
transcript of such parts of the proceedings not
already on file as he deems necessary for inclu-
sion in the record. In all cases where the appel-
lant intends to urge insufficiency of the evidence
to support the verdict, order or judgement in the
district court, it shall be the duty of the appel-
lant to order the entire transcript of the evidence.
Wherever the sufficiency of the evidence to support
a special verdict or answer by a jury to an in-
terrogatory, or to support a specific finding of
fact by the trial court, is to be raised on the
appeal by the appellant, he shall be under a duty
to include in the transcript all evidence relevant
to such verdict, answer or finding. Unless the
entire transcript is to be included, the appellant
shall, within the time above provided, file and
serve on the respondent a description of the parts
of the transcript which he intends to include in
the record and a statement of the issues which he
intends to present on the appeal. If the respon-
dent deems a transcript of other parts of the
proceedings to be necessary he shall within 10 days
after such filing and service order such parts
from the reporter or procure an order from the
district court requiring the appellant to so do."
If the appellant fails to cause timely transmission of the
record, the respondent may file a motion in the Supreme Court to
dismiss the appeal. Rule ll(c), M.R.App.Civ.P.
Plaintiff contends that defendants' appeal challenging
the District Court's entry of judgment notwithstanding the ver-
dict is, in effect, an assertion that there is insufficient
evidence to support the District Court's order. Under Rule 9(b),
M.R.App.Civ.P., therefore, defendants are required to transmit
the entire transcript of the trial court proceedings to the
Supreme Court.
Defendants assert the issues they raise on this appeal
are issues of law and that the trial transcript is not necessary
for their resolution. As defendants themselves framed the issues,
two questions are presented:
(1) Did the District Court err in granting plaintiff's
motion for judgment notwithstanding the verdict?
(2) When is a preemptive right [a right of first refusal]
to acquire property terminated?
The trial transcript, however, is necessary for a resolution of
the issues they raise.
The question involved in whether a judgment notwithstand-
ing the verdict was proper is not whether there was sufficient
evidence to support the District Court's order. A motion for
such a judgment may be granted only when, without weighing the
credibility of the evidence, there can be but one reasonable
conclusion as to the proper judgment.
"Where there is conflicting evidence, or there
is insufficient evidence to make a 'one-way'
verdict proper, judgment n.0.v. should not be
awarded." 5A Moore's Federal Practice ![ 50.07[2],
p . 2356.
Both questions, however, require careful examination of the
entire transcript of the trial court proceedings.
Montana's Rules of Appellate Civil Procedure are patterned
after the Federal Rules of Appellate Procedure.
" * * * the burden of showing error by reference
to matters of record is upon the appellant.
Unless the record that he brings before the
court of appeals affirmatively shows the
occurrence of the matters upon which he relies
for relief, he may not urge those matters on
appeal." 9 Moore's Federal Practice 1l210.05[1],
pp. 1618, 1619.
Where sufficiency of the evidence to support a judgment not-
withstanding the verdict is the issue on appeal, the transcript
of the trial proceedings is necessarily an integral part of
the record and must be transmitted to this Court.
An appeal, however, will not automatically be dismissed
in every instance when the Rules of Appellate Civil Procedure
have not been strictly followed. Moore's Federal practice ad-
vocates that the presence of a rule such as Rule ll(c), M.R.
App.Civ.P., should not suggest "the drastic sanction of dismissal
[be] the normal consequence of delay in effecting transmission of
the record." 9 Moore's Federal Practice 11212.05, p. 1909. Rule
4(a), ~.~.App.civ.P.,expressly provides:
" * * * Failure of an appellant to take any
step other than the timely filing of a notice
of appeal does not affect the validity of the
appeal, but is ground only for such action as
the supreme court deems appropriate, which may
include dismissal of the appeal."
In this case the defendants' fault does not lie in mere
delay in effecting transmission of the record on appeal, it
lies in their complete failure to order and to transmit a tran-
script to this Court. Nor did they apparently ever file and
serve upon the plaintiff a description of the parts of the tran-
script they intended to include in the record and a statement of
the issues they intended to present on appeal. Rule 9(b), M.R.
App.Civ.P., requires such a filing within ten days after filing
notice of appeal, when the appellants are not transmitting the
entire transcript.
On June 23, 1977, plaintiff gave defendants notice that
she intended to move for a dismissal of the appeal because
defendants had failed to cause timely transmission of the
record. Subsequent to this notice the defendants still failed
to transmit a transcript to this Court, or to otherwise comply
with Rules 9(b) and 10(a), M.R.App.Civ.P.
Defendants have demonstrated a complete lack of adherence
to the Montana Rules of Appellate Civil Procedure. Their failure
to transmit the transcript of the trial court proceedings leaves
us unable to decide the issues they present.
Concerning the quality of the brief submitted by the
defendants--while we appreciate conciseness and brevity in briefs
submitted on appeal, we do not appreciate briefs in which the
arguments made are without substantive explanation and are marked
by a total lack of authority in their support.
The appeal is dismissed.
Justice