No. 81-490
IN THE SUPREME COURT OF THE STATE OF MONTANA
i982
HENRIETTA SANDS,
Plaintiff and Appellant,
VS.
SONJA R. NESTEGARD, SIDNEY P. MICHELS,
EUNICE E. MICHEES and EARL SANDS,
Defendants and Respondents.
Appeal from: District Court of the Eleventh Judicial District,
In and for the County of Flathead
Honorable Robert M. Holter, Judge presiding.
Counsel of Record:
For Appellant:
Jeffrey Ellingson, Kalispell, Montana
For Respondents:
Keller & Gilmer, Kalispell, Montana
Robert S. Keller, Kalispell, Montana
Submitted on briefs: March 5, 1982
Decided: June 23, 1982
Filed: 3 ill1 d $ 1982
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
This appeal results from an order denying appellant's
motion to set aside a summary judgment entered in favor of
respondents.
Appellant Sands is a 95-year-old woman who over the
course of the last 15 years has deeded various tracts of
land to respondents. Respondent Earl Sands is appellant's
son who received a five acre tract of land from appellant in
1967; respondent Eunice Michels is appellant's daughter who,
with her husband Sidney Michels, received 0.32 acres from
appellant on November 16, 1971; and respondent Sonja Nestegard
is appellant's granddaughter and respondent Michels' daughter
who received 0.281 acres from appellant on November 5,
1975. All of the tracts are located in close proximity to
appellant's residence.
On December 30, 1980, appellant filed a four count
complaint against respondents alternatively seeking return
of the transferred property or damages. Counts I and I1
were premised upon an allegation that the transfers resulted
from oral agreements between appellant and respondents that
respondents would provide support for appellant for the
remainder of her lifetime; an amalagam of legal theories --
fraud, misrepresentation, undue influence and breach of
contract -- were asserted in each claim. Count I11 alleges,
in the alternative, that if the agreement is found to be
void in violation of the statute of frauds, then plaintiff
is entitled to a return of her consideration, i.e., the
land. Count IV alleges a tort arising out of intentional
infliction of mental and emotional distress.
Respondents' answer denied all allegations of any
agreement, fraud, misrepresentation or undue influence and
asserted the statute of limitations as an affirmative defense
to each count.
On April 24, 1981, the depositions of all parties,
excepting respondent Sidney Michels, were taken. Respondents
denied that they had entered into any grantor support agreement
in exchange for the land they received but stated that they
had intermittently provided for appellant's care and support
by cutting and hauling firewood, preparing food, and transporting
appellant to town. Appellant's deposition was equivocal
regarding any agreements surrounding the transfers, although
it clearly established appellant expected respondents to
care for her and that they had failed to live up to her
expectations.
On June 8, 1981, respondents filed a motion for summary
judgment. As to Count I and I1 respondents asserted that
appellant conceded there was no agreement between appellant
and respondents and that respondents made no fraudulent or
false representations to appellant. Respondents also contended
section 27-2-203, MCA, barred such action. The grounds for
Count I1 included the aforementioned assertions with an
additional contention that appellant testified the transfers
were gifts, not the product of agreements or contracts.
Section 27-2-204, MCA, was asserted to bar any action against
respondents Michels under Count IV; additionally respondents
claimed appellant failed to testify as to any facts which
would support such a claim for relief against respondents
Sands and Nestegard. Appellant filed no brief in opposition
to respondents' motion and memorandum in support thereof.
On July 28, 1981, the District Court sustained respondents'
motion for summary judgment, stating that "[tlhe facts as
developed show a change of heart on the part of the grantor-
plaintiff, no more, no less" and that "each of claims I, I1
and I11 are barred by MCA 27-2-203." Appellant's complaint
was dismissed on July 31, 1981.
On August 5, 1981, through new counsel, a motion to
vacate the summary judgment was filed by appellant. Additional
briefs were filed and argument was had on the question of
setting aside the summary judgment and on the merits of the
summary judgment motion. Additionally, affidavits from
three of appellant's adult daughters were filed. In summary,
the affiants attested that, in conversations they had with
respondents, respondents admitted that they received various
tracts of land from appellant in exchange for their promises
to provide appellant with care and support for the remainder
of her life. The following affidavit is typical of all:
"I, CLARICE HEWITT, being first duly sworn,
depose and state:
"(1) That I am a daughter of Henrietta Sands,
Plaintiff in this action, and that I reside
at 448 South Calle Eucilia, Apt. 604, Palm
Springs, California;
" (2) That, upon several occasions during recent
years, I have made several trips to Flathead
County, Montana, to take care of my mother at
her residence; that, upon said occasions, I have
become privity to certain conversations with
respect to land transfers between my mother
and Defendants, Sonja R. Nestegard, Sidney R.
Michels and Eunice E. Michels;
"(3) That, in October of 1977, Eunice Michels
told me that there had been a certain agreement
between she and her husband and my mother with
respect to certain property deeded in 1971;
that the nature of the agreement was such that
my mother deeded certain property to Eunice
and her husband in return for them caring and
providing for her for the remainder of her life-
time, i.e., supplying her with the necessities
of life, care and companionship;
" ( 4 ) That, in October of 1977, Sonja Nestegard
had told me that there had been a certain agree-
ment between her and my mother with respect to
certain property originally deeded in 1975;
that the nature of the agreement was such that
my mother deeded certain property to Sonja in
return for providing her with care and support
for the remainder of her lifetime, i.e., supply-
ing her with the necessities of life, care and
companionship;
"(5) That, to my knowledge, the aforesaid Defen-
dants have substantially failed to carry out
their agreement with my mother and have failed
to provide her with care and support since the
property transfers occurred."
On October 9, 1981, Judge Holter issued an order denying
appellant's motion to vacate. The order stated, in part,
that "[Clareful inspection of the claims made by the [appellant]
do not track with her deposition. At most that could be
said for [appellant's] position is that she hoped her children
would live around her harmoniously. She has now had a
change of heart. And she waited too long . . . Nothing
different has been shown by the proceedings subsequent to
such summary judgment than were known prior thereto." The
issue is not whether the trial court abused its discretion
in failing to vacate. The matter was decided giving due
consideration to the affidavits.
Therefore, on appeal the issues are:
(1) Whether the trial court erred in granting respondents'
motion for summary judgment because there was a genuine
issue of material fact presented by the parties' depositions
and the affidavits submitted by appellant's daughters; and
(2) Whether the statute of limitations or the doctrine
of laches bars appellant from bringing her claims for relief.
As a preliminary matter this Court will address the
adequacy of appellant's original complaint. We understand
the frustration of respondents' counsel in defending against
such a pleading. The complaint is inartfully drafted and is
so confusing we find it difficult to decioher plaintiff's
theories. Present counsel sought leave to amend which was
never granted. For purposes of this appeal, noting the
finality of a summary judgment, the policy considerations
that militate against defeating plaintiff's right to present
the merits of her case to the factfinder, and the nature of
the argument presented to the lower court on the motion to
vacate, we conclude that the complaint can be construed
broadly enough to include a claim for relief based upon
breach of a grantor support contract, independent of any
allegations of fraud, undue influence or misrepresentation.
Plaintiff has alleged that prior to each transfer, each
defendant said to her that if she conveyed the land to
him/her, she/he would provide for plaintiff for the remainder
of her lifetime, supplying her with the necessities of life,
care and companionship. Plaintiff has further alleged that
she conveyed such property in consideration of their statements.
Finally, plaintiff has alleged that defendants refused to
comply with the conditions upon which they accepted such
properties. Such allegations constitute a valid claim for
relief under Montana law, De Atley v. Streit (1928), 81
Mont. 382, 263 P. 967, and this Court will review the lower
court's decisions in light of such a theory.
Neither respondents' counsel nor the trial judge should
be caught unaware by this determination. Plaintiff's counsel
attempted to clarify her complaint by filing a motion to
amend at the same time her motion to vacate was filed.
Although the trial court made no ruling on the motion to
amend, arguments submitted by plaintiff and refuted by
defendants regarding the motion to vacate or reconsider the
summary judgment addressed a legal theory premised on allegations
that (1) plaintiff and defendants entered into agreements by
which plaintiff would transfer certain lands to defendants
and defendants would provide for plaintiff for the remainder
of her lifetime and (2) defendants failed to abide by their
agreements.
Summary judgment is proper ". . . if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law
. . ." Rule 56(c), M.R.Civ.P.
Juxtaposing respondent's depositions with appellant's
deposition and the affidavits filed in opposition to the
motion for summary judgment, we find a genuine issue of fact
as to whether the parties entered into grantor support
agreements when land was transferred from appellant to
respondents. Appellant's three adult daughters assert that
on various occasions respondents admitted to them in conversa-
tions that they had agreed to care for Henrietta Sands for
the remainder of her life if she would in return transfer
certain property to them. In a less definitive manner,
appellant too asserts that respondents told her they would
provide for her. Respondents uniformly deny the existence
of an agreement concerning the land transfers. In the past
this Court has said that, in cases involving the existence
or non-existence of a contract, where the intentions of the
contracting parties are critical in deciding the issue,
summary judgment is usually inappropriate. Kober v. Stewart
(1966), 148 Mont. 117, 417 P.2d 476; Fulton v. Clark (19751,
167 Mont. 399, 538 P.2d 1371. Summary judgment was not
appropriate in this case. In this instance, it appears the
trial judge went beyond the question of whether there was a
genuine issue of fact, to determine how such issue should be
decided; that constitutes error. Rickard v. Paradis (1975),
167 Mont. 450, 539 P.2d 718.
Regarding appellant's fourth count, intentional infliction
of severe emotional distress, we uphold the trial court's
order for summary judgment. Appellant's brief neglected to
address this count. This Court will not endeavor to review
a matter when appellant has directed no argument toward it.
As to the second issue, the applicability of the statute
of limitations to counts one through three, we find the
lower court's determination to be premature. Just as a
dispute exists as to whether an agreement existed, a dispute
exists as to whether or not, in some degree or another,
respondents have been providing for appellant. If an agreement
is found to exist, appellant's claims for relief do not come
into being until respondents have failed to fulfill their
continuing obligation to provide for appellant. At this
point we do not know when that breach occurred. While
appellant may be barred at law for acting on a breach of
agreement that occurred prior to 1972, she is not barred
from seeking relief based upon any alleged breach of contract
that occurred within eight years of this action. Neils v.
Deist (1979), 180 Mont. 542, 591 P.2d 652; Section 27-2-
202(1), MCA.
Count 111 is unnecessary here. If there was a binding
support agreement, plaintiff performed by conveying land
and the statute of frauds is inapplicable. If no such
agreement existed, plaintiff does not have a claim.
There is no evidence here of fraud or undue influence.
We affirm summary judgment except as to those allegations in
Counts I and I1 which could form the basis for a finding
that a support obligation was incurred and was breached by the
respective grantees.
The summary judgment on Counts I and I1 is vacated and
We Concur: