No. 89-391
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
CLARENCE T. BEI,UE and DIAN R. BELUE, .
Plaintiffs and Respondents,
-vs-
DANIEL J. GEBHARDT, BONNIE R. GEBHARDT, RICHARD
A. DORN, FRED J. CALL, SR., and LARRY DORN,
Defendants and Appellants.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable William J . Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas Y. Freeman, (~orn), a r d i n ,
~ Montana
James E . Torske, (Call, Sr.), Hardin, Montana
For Respondent:
Clarence T . Belue, pro se, Hardin, Montana
Submitted on Briefs: Nov. 2, 1989
Decided: December 20, 1989
Filed :
Justice Fred J. Weber delivered the Opinion of the Court.
This appeal arises from an order by the District Court,
Thirteenth Judicial District, Big Horn County, Montana. The
District Court granted summary judgment in favor of plain-
tiffs. Defendants appeal. We affirm.
The sole issue presented for review is whether the
default clause of a contract for deed limits sellers to the
remedy of termination of the contract.
On September 24, 1981, Mr. and Mrs. Belue sold an office
building in Hardin, Montana, to Dr. and Mrs. Gebhardt, on a
contract for deed. The Gebhardts moved from Hardin in 1983
and sold their interest in the contract to Richard Dorn and
Fred Call, Sr. Mr. Dorn was a realtor. He rented the build-
ing until 1988, when he determined he could no longer make
payments on the contract. Mr. Dorn assigned his interest in
the contract to his cousin, Larry Dorn, who made one payment
and then defaulted. The last payment the Belues received was
in April 1988. On August 1, 1988, and again on August 26,
1988, they sent a notice of default to the Gebhardts and to
Mr. Richard Dorn, Mr. Fred Call, and Mr. Larry Dorn. When
the default was not cured, the Belues brought suit for the
balance due under the contract. The District Court granted
summary judgment in favor of plaintiffs, and defendants
appeal.
Summary judgment is only appropriate when there are no
genuine issues of material fact, and the moving party is
entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P.; Kronen v. Richter (1984), 211 Mont. 208, 211, 683
P.2d 1315, 1317. On appeal our standard of review is to
determine whether the record reveals genuine issues of mate-
rial fact, which would preclude the District Court from
granting summary judgment.
Defendants' primary contention is that the default
clause in the contract limits the plaintiffs' remedy to
termination of the contract. They contend the District Court
erred in granting plaintiffs a judgment on the balance due.
The default clause states in pertinent part:
11. DEFAULT
Should any default of the purchasers hereunder
remain incurred for more than twenty (20) days
after written notice thereof to purchasers, then
sellers may, at sellers' option, upon 5 days addi-
tional written notice to purchasers, declare the
entire outstanding balance hereof with accrued
interest thereon immediately due and payable, and
upon non payment thereof, sellers may as an alter-
native to any other remedy terminate this agreement
without further notice. In the event of such
termination, purchasers agree on demand:
(a) To surrender possession of said property
and improvements thereon, immediately and
peaceable:
(b) To execute such instruments as the seller
may require to evidence of record termination of
this agreement and of purchasers' interest in such
property and improvements, and sellers shall be
entitled to retain all payments made hereunder as
liquidated damages for the breach of this agreement
and as a reasonable rental for the use of the
property.
The District Court concluded that according to the
language of the contract and this Court's holding in Glacier
Campground v. Wild Rivers, Inc. (1978), 184 Mont. 543, 597
P.2d 689, plaintiffs were not limited to termination of the
contract as their sole remedy. We agree. In accordance with
the default provision, the sellers gave the initial 20-day
written notice and in addition gave the 5-day additional
written notice ,under which the sellers declared the entire
outstanding balance with interest immediately due and pay-
alnle. There is no dispute that the balance was properly
declared immediately due and p a y a b l e . The clause further
provides t h a t upon nonpayment o f t h a t balance t h e "sellers
may as an alternative to any other remedy terminate this
agreement without further notice. " (Emphasis a d d e d . ) The
r i g h t t o terminate i s c l e a r l y a choice given t o t h e s e l l e r s .
T h e r e i s no i n d i c a t i o n t h a t t e r m i n a t i o n i s t h e o n l y remedy.
Termination i s s p e c i f i c a l l y s t a t e d t o be an a l t e r n a t i v e t o
any o t h e r remedy. The p a r t i e s a r e hound by t h e p l a i n meaning
of t h e words o f t h e c o n t r a c t where there i s no a m b i g u i t y .
Quinn v . B r i g g s ( 1 9 7 7 ) , 172 Mont. 468, 475-76, 565 P.2d 297,
301.
I n G l a c i e r Campground t h i s C o u r t had o c c a s i o n t o c o n s i d -
e r t h e i s s u e o f w h e t h e r t h e p l a i n t i f f was l i m i t e d t o a c e r -
t a i n remedy. W e stated:
I n t h e absence of a c o n t r a c t u a l provision
e x p r e s s l y l i m i t i n g t h e remedy o r r e m e d i e s a v a i l -
a b l e , a p a r t y may p u r s u e a n y remedy which law o r
e q u i t y a f f o r d s , a s w e l l a s t h e remedy o r r e m e d i e s
specified i n the contract.
G l a c i e r Campground, 597 P.2d a t 696. W e conclude t h a t t h e
l a n g u a g e o f t h e c o n t r a c t a l l o w s t h e p l a i n t i f f s an e l e c t i o n o f
remedies. I n t h e p r e s e n t c a s e , p l a i n t i f f s e l e c t e d t o s u e on
t h e balance due.
A s an a l t e r n a t i v e argument, d e f e n d a n t s contend t h a t t h e
notices of default l e d them t o b e l i e v e t h a t t h e p l a i n t i f f s
intended t o merely terminate t h e c o n t r a c t . They c o n t e n d t h a t
t h e n o t i c e s s h o u l d h a v e b e e n s p e c i f i c a s t o t h e remedy which
would b e p u r s u e d . No a u t h o r i t y i s c i t e d f o r t h i s p r o p o s i -
tion. The l a n g u a g e o f t h e d e f a u l t n o t i c e s f o l l o w s t h e l a n -
guage o f t h e c o n t r a c t f o r d e e d , i n t h a t it s t a t e s t h a t u n l e s s
d e f a u l t i s c u r e d , p l a i n t i f f s may e i t h e r d e c l a r e p a y a b l e t h e
e n t i r e b a l a n c e o f p r i n c i p a l and i n t e r e s t , o r i n t h e a l t e r n a -
tive, terminate the contract. A c c o r d i n g l y , we c o n c l u d e t h a t
defendants' contention i n regard t o the default notices is
meritless.
W e conclude t h a t defendants f a i l e d t o r a i s e any genuine
issues of material fact, and t h e c o u r t was c o r r e c t i n i t s
g r a n t o f summary judgment i n f a v o r o f p l a i n t i f f s . W e affirm
t h e D i s t r i c t C o u r t ' s g r a n t o f summary judgment.
Affirmed.