No. 87-22
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
CARL C. PAYNE,
Plaintiff and Appellant,
-vs-
ALAN STRATMAN; WESLEY KROEKFR;
BRIAN KROEKER; ABIE W. JANSEN;
JERRY HERZENBERG; H.H. CHAMPLIN;
JOHN REGIER; All General Partners
of and doing business as GOLDEN
EAGLE LAND COMPANY, an Oklahoma
General Partnership; SECURITY BANK,
N.A.; JAMES STFATMAN,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gerald J. Neely, Billings, Montana
For Respondent:
Wright, Tolliver & Guthals; K.D. Tolliver, (Golden
Eagle Land), Billings, Montana
Herndon, Harper & Munro; Rodney T. Hartman, (Security
Bank), Billings, Montana
Anderson, Edwards & Molloy; A. Clifford Edwards
(Stratman), Billings, Montana
Submitted on Briefs: Aug. 27, 1987
Decided: December 16, 1987
DEC I 6 1987
Filed:
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Plaintiff Carl C. Payne appeals an order from the
Thirteenth Judicial District, Yellowstone County, granting
summary judgment in favor of defendants. We affirm.
Two issues are presented for our review:
1. Did the District Court err when it granted summary
judgment in favor of defendants Golden Eagle Land Company and
Security Bank?
2. Did the District Court err when it granted summary
judgment in favor of defendant James Stratman?
On November 3, 1975, Carl C. Payne, a licensed Montana
real estate broker, entered into a written listing agreement
with Golden Eagle Land Company, an Oklahoma general partner-
ship (Golden Eagle), to sell the Larb Hills Ranch (Ranch).
The Ranch is located in Phillips County. Upon sale, Payne
was to receive a 6 percent commission. On July 7, 1976,
Golden Eagle entered into a contract for deed with purchasers
R. L. Nelson, Gordon B. Carlson and Melvin J. Ganshop. The
contract for deed required the purchasers to buy $100,000 of
certi-ficates of deposit (certificates) . The certificates
were to be deposited with an escrow agent, defendant Security
Bank. The escrow instructions required the bank to transfer
the certificates to seller Golden Eagle in the event of
default.
The escrow instructions also required the Bank to pay
appellant Payne's commission in installments contingent upon
contract payments. Payne was paid $34,000 following the
August 1, 1976, payment by purchasers.
In February 1977 Golden Eagle approached the Bank about
securing a loan. The Bank responded favorably but required
the certificates as collateral. Following negotiations,
Payne and Golden Eagle entered into a written agreement
subordinating their interest in the certificates.
In November 1977 the purchasers defaulted. Pursuant to
the subordination agreement, appellant did not receive a
commission. Appellant Payne subsequently brought an action
against the Rank and Golden Eagle seeking recovery of the
real estate commission.
Payne also brought an action against James Stratman.
Stratman had assisted Payne in finding the purchasers. Earli-
er Payne had entered into a contract with Stratman to divide
the cornnlission, with $10,200 paid to Stratman. Payne claimed
that Stratman falsely represented that he was a licensed
Colorado real estate broker. Payne alleged fraud and false
representation and sought cancellation of commission split-
ting agreement and return of monies previously paid and a
statutory penalty. Section 37-51-323, MCA. Golden Eagle
counterclaimed against appellant Payne for the return of the
$34,000 real estate conm~ission.
On October 9, 1980, the District Court granted summary
judgment to defendant Golden Eagle. Six years later, on
August 12, 1986, the District Court granted sununary judgment
to James Stratman and to Payne on Golden Eagle's
counterclaim.
Issue 1
Did the District Court err when it granted summary
judgment in favor of defendants Golden Eagle and Security
Bank?
On May 13, 1980, Golden Eagle moved for sununary judg-
ment on Payne's complaint. Payne failed to respond with
brief or affidavit by November 9, 1980, and the District
Court granted Golden Eagle's motion. Affidavits placed on
record by Golden Eagle imposed upon Payne the duty of raising
a genuine issue of material fact. Kronen v. Richter (Mont.
1984), 683 P.2d 1315, 1317, 41 St.Rep. 1312, 1315. We have
consistently held that when the moving party adequately
supports a motion for summary judgment, the burden shifts to
the opposing party to present the court with evidence suffi-
cient to raise a genuine issue of material fact. National
Gypsum Co. v. Johnson (1979), 182 Mont. 209, 212, 595 P.2d
1188, 1189; Rule 56 (c), M.R.c~v.P.
Rule 56 (e), M.R.Civ.P., provides in pertinent part:
... When a motion for summary judgment
is made and supported as in
this rule, an adverse party may not rest
upon the mere allegations or denials of
his pleading, but his response, by
affidavits or as otherwise in this rule,
must set forth specific facts showing
that there is a senuine issue for trial.
- - - - - respond, sununary
If he does not so
udgment, if =propriate, shall be
:ntered agaEst - him. [Emphasis a d d e d 7
Clearly Payne failed to come forward with a material
issue of fact. Earlier we held that when a party moves for
sununary judgment and the opposing party fails to respond,
summary judgment is proper. "[A] party who ignores the
judicial system and slumbers on his rights, does so at his
own peril." Bedford v. Jordan (Mont. 1985), 698 ~ . 2 d854,
On November 11, 1980, nearly a month after summary
judgment was granted, Payne filed a responsive brief. Payne
contends that affidavits in opposition were unavailable.
Therefore, Payne argues the court erred when it failed to
grant a continuance pursuant to Rule 56(f), M.R.Civ.P.
A review of the record does not support Payne's argu-
ment. Payne could have, but failed to, file (1) a responsive
brief, (2) an attorney affidavit or (3) affidavits pursuant
to Rule 30(e), M.R.Civ.P. Further, the record clearly
indicates that Payne's commission was contingent on the
failed November 1, 1977, payment and that Payne voluntarily
subordinated his right to a commission. The District Court
properly awarded sununary judgment against Payne.
Issue 2
Did the District Court err when it granted summary
judgment in favor of defendant James Stratman?
On August 1, 1976, appellant Payne paid Stratman
$10,200 pursuant to a written fee-splitting agreement. On
December 19, 1978, two years and four months later, Payne
filed a complaint against Stratman. Payne alleged that
Stratman had misrepresented himself as a licensed Colorado
real estate broker in violation of § 37-51-323, MCA. Payne
sought: (1) cancellation of the fee-splitting agreement; (2)
return of the commissions paid; and (3) a statutory penalty.
Stratman responded by affidavit that he had not represented
himself as a licensed real estate broker. Stratman also
moved for summary judgment.
Following hearing, the District Court, on December 13,
1983, granted Stratman's motion for summary judgment. The
court held the applicable statute of limitations for a cause
of action under the Real Estate Licensing Act is two years,
pursuant to S 27-2-211, MCA. The court found that Payne's
complaint was filed over two years after the alleged tort.
Payne contends that Stratman's alleged misrepresenta-
tion constitutes an active concealment of a material fact.
Therefore, the statute of limitations should be tolled. Much
v. Sturm, Ruger & Co. (D. Mont. 1980), 502 F.Supp. 743, 745.
We have consistently held that in non-malpractice tort
actions, the statute of limitations begins to run on the date
of plaintiff's injury. Kerrigan v. O'Meara (1924), 71 Mont.
1, 7, 227 P. 819, 821. ''[Tlhe fact that a party with a cause
of action has no knowledge of his rights, or even the facts
out of which the cause arises, does not delay the running of
the statute of limitations until [the party] discovers the
facts or learns of his rights under those facts." Bennett v.
Dow Chemical (Nont. 1986), 713 P.2d 992, 994, 43 St.Rep. 221,
224, citing Carlson v. Ray Geophysical Division (1971), 156
Mont. 450, 454, 481 P.2d 327, 329. In a non-malpractice
negligence action, there must be an affirmative act committed
by the defendant and the affirmative act must be calculated
to obscure the existence of a cause of action. Much, 502
F.Supp. at 745.
We do not agree that Stratman's alleged misrepresenta-
tion is an affirmative act calculated to obscure Payne's
cause of action. A review of the record reveals that
Stratman denied, by affidavit, making such a representation
to Payne. Secondly, Payne made no attempt to corroborate
Stratman's alleged representation. Clearly, Payne's allega-
tions do not constitute evidence sufficient to toll
S; 27-2-211, MCA. See, Yellowstone Conference of the United
Methodist Church v. D. A. Davidson, Inc. (Mont. 1987), 741
P.2d 794, 798, 44 St.Rep. 1528, 1532.
Finally, but not determinative to this issue, Payne
himself was in violation of the Real Estate Licensing Act.
"It is unlawful for a licensed broker to employ or compen-
sate, directly or indirectly, a person for performing the
acts regulated by this chapter who is not a licensed broker
or licensed salesman. . . ." Section 37-51-386 (1), MCA. We
have long held that one cannot benefit from his own wrong.
Roundup Cattle Feeders v. Horpstad (1979), 184 Mont. 480,
485, 603 P.2d 1044, 1047; 1-3-208, MCA.
We hold the District Court properly entered judgment in
favor of defendants. Affirmed.
6
We concur:
A