No. 90-626
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
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FIRST SECURITY BANK OF ANACONDA, a Montana corp., " -I
Plaintiff and Respondent, -
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EDWIN T. VANDER PAS and ED VANDER PAS OIL, a Montana Corp.,,
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Defendants and Appellants. I ;L OF h:i)NP~fa,q
EDWIN T. VANDER PAS,
Plaintiff and Appellant,
OILFIELD SUPPLY CO., INC., a Nevada corp., OILFIELD SUPPLY CO., a
Montana corp., ROY L. BROWN, DEAN W. LONEY, MONTANA-PACIFIC OIL AND
GAS CO., a/k/a MONTANA PACIFIC OIL AND GAS, LTD., et al.
Defendants and Respondents.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen A. Doherty and George R. Crotty, Jr.,
Graybill, Ostrem, Warner & Crotty,
Great Falls, Montana.
For Respondents:
Mark F. Higgins, Ugrin, Alexander, Zadick & Slovak,
Great Falls, Montana; Michael E. Webster,
Crowley, Haughey, Hanson, Toole & Dietrich,
Billings, Montana.
Submitted on Briefs: July 25, 1991
Decided: October 8, 1991
Filed:
!Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
The Montana Ninth Judicial District Court, Toole County,
granted a motion for summary judgment in favor of respondent, First
Security Bank of Anaconda. The court ordered appellants Edwin T.
Vander Pas, and Ed T. Vander Pas Oil, Inc., a Montana corporation,
to specifically perform certain obligations pursuant to an
agreement terminating a business relationship. The court ordered
Vander Pas to convey to First Security Bank his one-half interest
in certain real property, together with buildings and improvements,
located at Oilmont. It is from this order that Vander Pas
appeals. We affirm.
The issue before the Court is whether the summary judgment
granted by the District Court entitled First Security Bank to
specific performance.
For several years, Vander Pas and Dean W. Loney were involved
together in several business relationships located primarily in
Toole County. In 1981, the parties were desirous of terminating
and dissolving such business relationships on a fair and equitable
basis. On December 4, 1981, they entered into a contract which
provided that the assets and liabilities of their partnerships
would be assumed by Loney. In consideration, Loney agreed to pay
Vander Pas $800,000, plus interest. The contract specifically
provided that Loney was to pay Vander Pas $200,000 upon execution
of the agreement. The record reflects that this was performed by
Loney. The balance of the remaining $600,000 debt was to be
evidenced by a promissory note bearing an annual interest rate of
14 percent to be paid in quarterly installments with the first
payment due on or before March 31, 1982. The record reflects that
approximately $600,000 in installment payments have been made on
the note over a period exceeding three years.
In 1985, Loney defaulted on the payments and the parties
renegotiated payments which were evidenced by a second promissory
note. After a few months, Loney again defaulted. In 1987, while
attempting to obtain a sizable mortgage on the Oilmont property,
Loney discovered that the quit claim deed to the property was never
executed.
On March 9, 1988, Loney assigned his interest in the contract
and gave limited power of attorney to respondent First Security
Bank of Anaconda. The power of attorney gave respondent authority
to commence, prosecute, and conclude all legal actions and
proceedings to enforce compliance with the contract between Loney
and Vander Pas. Loney also transferred his one half interest in
the Oilmont property to respondent.
On July 27, 1987, Vander Pas commenced litigation against
various corporations to obtain payment under the 1985 promissory
note. Respondent then filed a complaint against Vander Pas and Ed
Vander Pas Oil Inc. The two actions were later consolidated.
During the proceedings, Vander Pas moved the court for a
partial summary judgment asking that Loney and respondent pay the
total amount due on the 1985 note. Respondent filed a cross-motion
for summary judgment requesting that Vander Pas specifically
perform the contract by conveying the Oilmont property to
respondent. The court denied Vander Pas's motion and ordered him
to convey the deed to respondent. It is from this order that
Vander Pas appeals.
The dispute between the parties arises over certain provisions
in the 1981 contract set out below:
Oilmont Investments is a Montana general partnership
owned fifty percent (50%) by Dean W. Loney and fifty
percent (50%) by Ed Vander Pas Oil in accordance with a
verbal partnership agreement. The partnership assets
include approximately 3 acres of land in Oilmont,
Montana, and the buildings and improvements located
thereon, together with cash, accounts and notes
receivable. The liabilities include various accounts and
notes payable to banks and other creditors. The parties
hereby agree that rather than retire all liabilities,
balance capital accounts and distribute assets, they will
terminate their business relationship in the partnership
as follows:
(a) Edwin T. Vander Pas and/or Ed Vander Pas Oil,
as the case may be, will transfer all of his or its
interest in the partnership assets to Dean W. Loney
or his nominees by appropriate assignments, deeds,
bills of sale, or other documents as may be
necessary to transfer title to such assets, subject
however, to all liabilities thereon.
8. The parties hereto acknowledge that numerous other and
further documents are contemplated in order to carry out
the intention of this Agreement to terminate a series of
business relationships. Each of said parties therefore
agrees to cooperate fully with the other in executing all
such reasonable documents as may be necessary to fully
effectuate this Agreement.
No time was specified in the contract as to when the Oilmont
property was to be transferred. Unlike other property transferred
in the contract, there were no provisions which pledged the Oilmont
property and buildings as security for the remaining debt.
The granting of summary judgment is proper when there is no
genuine issue as to material fact and the moving party is entitled
to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Summary
judgment is never a substitute for trial on the merits. Krieg v.
Massey (1989), 239 Mont. 469, 471, 781 P.2d 277, 278. When
examining the record, any factual inferences that can be drawn must
be resolved in favor of the non-moving party. Krieq, 781 P.2d at
278. In order to prevail, the non-moving party must establish
facts showing a genuine issue exists. OIBagy v. First Interstate
Bank (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. The non-moving
party may not rely solely on the allegations stated in the
pleadings. Drug Fair Northwest v. Hopper Ent., Inc. (1987), 226
Mont. 31, 33, 733 P.2d 1285, 1287. Instead, the opposing party
has an affirmative duty to respond by affidavits or sworn testimony
containing material facts that raise a genuine issue. Drus Fair,
733 P.2d at 1287. In addition, conclusive or speculative
statements are insufficient to raise genuine issues of material
facts. Anderson v. Burlington Northern, Inc. (1985), 218 Mont.
456, 462, 709 P.2d 641, 645.
In opposing the motion for summary judgment, Vander Pas
offered nothing in the record by way of affidavit or otherwise
which would create a material factual dispute. For example, in his
affidavit Vander Pas admitted that he did not intentionally
withhold his signature for the deed to the property and that it was
simply an oversight that the required documents were not executed.
Instead, he listed several issues in his brief in a conclusive
fashion. This is not an appropriate means of opposing a motion for
summary judgment. West Lake v. Osborne (1986), 220 Mont. 91, 95,
713 P.2d 548, 551. We hold that the District Court did not err in
granting summary judgment.
As a general rule, the construction and interpretation of
written agreements, including contracts, is a question of law for
the court to decide. Cassia Creek Reservoir Co. v. Harper (Idaho
1967), 426 P.2d 209, 212. l1It is a question of law for the court
to determine whether there exists ambiguity sufficient to submit
the question of the parties1 intent to the trier of fact. Norlund
v. School Dist. No. 14 (1987), 227 Mont. 402, 405, 738 P.2d 1299,
1301. When the language of the contract is clear and unambiguous
on its face, then it is the duty of the court to enforce the
contract as the parties intended. Wortman v. Griff (1982), 200
Mont. 528, 536, 651 P.2d 998, 1002.
If a contract does not specify a time of performance, then a
reasonable time is allowed. Section 28-3-601, MCA. To determine
what constitutes a reasonable time can be a question of fact or a
question of law. Dunjo Land Co. v. Hested Stores Co. of Wyoming
(1973), 163 Mont. 87, 90, 515 P.2d 961, 962. If the facts are
clearly established or undisputed, then it is a question of law
solely for the courts to decide. Dunjo, 515 P.2d at 962-63.
The court concluded that the language and purpose of the
contract was clear on its face and was unambiguous. The contract
was drafted with the intent of dissolvingthe business relationship
between the parties in 1981. Vander Pas argued that he need not
convey the property until the entire debt was paid. The contract
did not provide for Vander Pas to hold the property as security
until Loney paid the total amount of the debt. Paragraph 3 of the
contract stated that Vander Pas "will transfer all of his or its
interest in the partnership assets to Dean W. Loney," which
included I1approximately 3 acres of land in Oilmont, Montana, and
the buildings and improvements located thereon." Nothing in the
contract indicated that the Oilmont property was subject to a
security interest, unlike other provisions of the contract which
provided for contingencies in case Loney defaulted on the note.
There was nothing stated in the contract which would have prevented
Vander Pas from conveying the Oilmont property at the time the
parties executed the contract.
In addition, section 8 of the contract demonstrates that the
parties contemplated that additional documents would be necessary
to carry out the intention of dissolvingthe business relationship.
The undisputed facts demonstrate that Vander Pas bargained for a
down payment and a note. He received those items in consideration
of transferring the property. We agree with the District Court and
hold that the time for Vander Pas to transfer the property was at
the time the contract was executed and that nine years is an
unreasonable time for Vander Pas to hold the property as a matter
of law.
Specific performance is an equitable remedy which empowers the
court to fashion a remedy which is appropriate under the
circumstances according to the purpose of the contract. See
Keaster v. Boszik (1981), 191 Mont. 293, 623 P.2d 1376. There is
no prerequisite for a contract to be absolute in every detail
before granting specific performance. Keaster, 623 P.2d at 1381.
The District Court found that the equities weighed in favor of
Loney because Vander Pas had received $600,000 in payment and yet
failed to turn over the property for nine years. Section 27-1-419,
MCA, presumes that a breach of an agreement to transfer real
property cannot be relieved by pecuniary compensation. Because the
contract calls for Vander Pas to convey the Oilmont property at the
time of execution, we hold that the granting of specific
performance was appropriate.
We affirm the District Court.
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We concur:
f Chief Justice