No. 84-471
IN THE SUPREME COURT OF THE STATE OF XONTANA
1985
MaSSAR CATTLE CO., INC., FRED
W. MASSAR, et al.,
Plaintiffs and Respondents,
DONALD REESE, D.J. REESE, PATRICIA
and MELLISH PALLAS, et al.,
Defendants and Appellants.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF FtECOXD:
For Appellants:
David L. Holland, Butte, Montana
Max Hansen, Dillon, Montana
For Respondents:
Schulz, Davis & Warren, Dillon, Montana
Submitted on Briefs: April 4, 1985
Decided: 2, 1985
Filed: J!/!d \1'pj8fj
7-
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appeal by the appellants from a summary judgment entered
against them in the District Court, Fifth Judicial District,
&?adison County. be affirm.
7
On September 28, 1979, Massar Cattle Co., Inc. and
Donald and D. J. Reese entered into a contract for deed
wherein Massar agreed to sell and Reese agreed to buy certain
ranching property located in Madison County, Montana. The
terms of the agreement provided for a purchase price of
$420,000 to be paid as follows: $15,000 upon execution of
the agreement, $15,000 on October 15, 1979, $20,000 on April
1, 1980, $50,000 on September 30, 1980 and an $8,000 interest
payment on April I., 1981. The above sums were to comprise a
$100,000 downpayment plus interest. The $320,000 balance of
the purchase price was to be paid in annual installments of
$33,907.20 due on September 30 of each year for the years
1981 through 1988. The entire unpaid balance of the
principal and interest due under the contract was to be paid
on September 30, 1989. Interest was assessed at 9$% per
annum on the unpaid balance starting on September 30, 1980.
Reese paid the first two installments of $15,000 on the
downpayment then on May 28, 1980 assigned his interest in the
contract to Patricia Ann Pallas. Massar consented to the
assignment. Mrs. Pallas entered the land and commenced
making payments under the contract to Massar. Pallas made
all the remaining payments necessary to satisfy the
downpayment plus the 1981 and 1982 annual installments of
$33,907.20. Pallas failed to make the September 30, 1983
payment under the contract. Massar mailed a notice of
default to Pallas on October 4, 1983.
Pallas failed to tender the overdue installment to
Massar within the 60-day grace period set forth in the
default clause of the contract. The "default clause" in
essence provided that Massar would have the option of (1)
obtaining a quit claim deed from Reese (assignee Pallas);
being relieved of any further obligation under the contract;
retaining all payments as rents or liquidated damages; and
requiring Reese (Pallas) to vacate the land and disclaim any
interest therein; or (2) Zeclare the entire sum due and
payable and seek any appropriate legal remedy.
When Pallas failed to comply with the above provision,
forfeit her interest, and vacate the premises, Massar filed
suit on March 6, 1984. The suit prayed that Pallas' interest
in the contract be terminated, her payments forfeited, and
that all title and right to and possession of the property be
returned to Massar. Pallas filed a motion to dismiss on
March 28, 1984 but did not file an answer to the Massar
complaint. Massar served combined interrogatories and
requests for admissions on Pallas on April 9, 1984. Pallas
did not answer them. Thereafter, Massar moved for summary
judgment and a hearing was set for June 5, 1984. The
District Court granted plaintiff Massar's motion for summary
judgment on June 5, 1984, but later on June 12, 1984 the
court vacated its order of summary judgment and set a new
hearing for July 3, 1984. At the July 3, 1984 hearing to
consider plaintiffs' motion for summary judgment the District
Court allowed defendant Pallas to testify. Based on her
testimony and the unanswered interrogatories and requests for
admissions which were deemed admitted, the District Court on
July 6, 1984 granted plaintiffs' motion for summary judgment
and issued a writ ordering the Sheriff of Madison County to
assist plaintiffs in taking possession of the property. This
appeal fol.lows.
Appellants contend that there exists a genuine issue of
material fact on whether, on both statutory and equitable
grounds, a forfeiture should be granted. Such a contention
is without merit. The law in Montana on summary judgment is
well settled. See Cereck v. Albertson's Inc. (1981), 195
Mont. 409, 637 P.2d 509. Appellants failed to answer the
complaint within 20 days of service of the complaint and
summons as prescribed by Rule 12 (a), M.R.Civ.P. No leave of
the court to file an untimely answer was requested and no
answer was ever served or filed. As a result the averments
in respondents' complaint are deemed admitted. Rule 8(d),
M.R.Civ.P. Appellants did not answer respondents' requests
for admissions so the requests are also deemed admitted.
Rule 36 (a), M.R.Civ.P. The District Court, though not
required to do so, allowed appellants to testify at the
summary judgment hearing. Based on the above, there is no
material issue of fact with regard to appellants' assumption
of the Reese contract for deed, appellants' failure to make
the September 1983 payment, the existence of the forfeiture
clause in the contract and respondents' compliance with the
notice provisions necessary to enforce the forfeiture clause,
and appellants failure to tender payment due under the
contract.
The District Court ruled. as a matter of law that $
5
28-1-104, MCA, was inapplicable to the facts of this case and
ordered that the forfeiture clause of the contract be
specifically enforced. Section 28-1-104, MCA, clearly does
not apply because the appellants failed to tender any
compensation to Massar.
Appellants contend for the first time on appeal that
they a.re entitled to equitable relief from forfeiture.
Appellants did not plead equitable relief from forfeiture as
an affirmative defense. We held in Sundial Land Co. v. Gold
Creek Ranches (19821, 198 Mont. 247, 252, 645 P.2d 936, 939,
that forfeiture is an affirmative defense and must be pleaded.
in defendant's answer. We need not consider this issue for
the first time on appeal.
Respondents requested in their brief that this Court
order the District Court to award attorney fees to them
pursuant to the terms of the contract. We will not consider
any relief to the respondents in excess of the District
Court's judgment unless the respondents have filed a
cross-appeal. Rule 5, M.R.App.Civ.P. No cross-appeal was
filed. The judgment of the District Court is affirmed.
Affirmed.
,/I
,I Justice
I. 1 0
We Concur: