No. 91-126
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
JOEL V. BALLENGER,
Plaintiff, Counter-Defendant, and Appellant,
-vs-
NORTHERN LIGHTS, INC.,
Defendant, Counter-Claimant and Respondent.
APPEAL FROM: District court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Claude I. Burlingame, Attorney at Law, Thompson
Falls, Montana: John D. Greef, Attorney at Law,
Hamilton, Montana.
For Respondent:
Gary R. Christiansen: Warden, Christiansen, Johnson
& Berg, Kalispell, Montana.
a' .. i ..,- .#i
AUG 1 5 1991 Submitted on briefs: July 16, 1991
' Clerk
Justice R. C. McDonough delivered the Opinion of the Court.
Joel Ballenger appeals from an order of summary judgment
granted by the District Court of the Twentieth Judicial District,
Sanders County, in favor of defendant, Northern Lights, Inc. The
District Court held that Northern Lights owed no duty to Ballenger
to provide electricity for his irrigation pumps. We affirm.
The sole issue on appeal is:
Whether the District Court erred in determining that Northern
Lights had no duty to provide electricity for Ballenger's
irrigation pumps.
Joel Ballenger has been a farmer-rancher in Sanders County,
Montana, for over 30 years. The area where Ballenger lives is
provided electricity solely by Northern Lights, an electric
cooperative. Northern Lights has its office in Sandpoint, Idaho,
and it serves an area comprising portions of western Montana and
northern Idaho.
Ballenger has four separate accounts with Northern Lights.
Two accounts represent his residential electricity consumption and
the other two involve electricity utilized by his irrigation pumps.
When Ballenger set up the accounts for his irrigation pumps,
he entered into a "Service Order and Membership Application" that
stated that no electricity would be provided until he paid all past
due balances. At the end of the 1984 irrigation season, Ballenger
owed $3,737.50 for services rendered in 1982, 1983, and 1984 by
Northern Lights. Although he obtained an operating loan, he chose
not to use any of these funds to pay the past due balance.
2
In 1985, Montana experienced a severe drought. On July 8,
1985, Ballenger contacted Northern Lights and informed them that
he needed power immediately so that he could irrigate his crops.
When Northern Lights refused, he offered a partial cash payment of
$2,000 and a lien on his crops. Northern Lights continued in its
refusal to provide power, and Ballenger's crops failed for lack of
water.
Ballenger filed a lawsuit alleging that Northern Lights
unreasonably refused to energize his irrigation pumps and sought
damages for his lost crop. Northern Lights counterclaimed, seeking
payment on the balance due on Ballenger's account. On December 17,
1990, the District Court granted summary judgment in favor of
Northern Lights. Ballenger appeals that portion of the court's
order which dismissed his claim for damages to his crops.
Ballenger maintains that the District Court erred in granting
summary judgment. We disagree.
Summary judgment is proper under Rule 56(c), M.R.Civ.P., when
the movant shows that there is no genuine issue as to any fact
deemed material in light of the substantive legal principles
entitling the movant to judgment as a matter of law. A1 1
reasonable inferences must be drawn in favor of the party opposing
the motion. In making its determination on whether to grant a
motion for summary judgment, the court must consider the entire
record. Smith v. Barrett (1990), 242 Mont. 37, 40, 788 P.2d 324,
326. There are no issues of material fact involved here.
3
As stated above, Ballenger entered into a "Service Order and
Membership Application" when he set up the accounts for his
irrigation pumps. This contractual instrument provided, and
Ballenger agreed, that the Cooperative would not provide
electricity if he had balances owing on his irrigation accounts.
Ballenger maintains that this explicit provision was modified by
a separate document which is referred to as Member Service Policy
No. 402. This document provided that Northern Lights may allow
time to pay bills in installments when special circumstances arise
"such as: death in the family, serious illness, life sustaining
equipment, the elderly and the handicapped." This provision,
according to Ballenger, should have been applied to his case and
he should have been allowed to pay his balance in installments.
Ballenger relies upon Howe v. Big Horn Electric Cooperative
(1983), 206 Mont. 297, 670 P.2d 936, to support this argument. The
adoption and implementation of all rules must be done fairly and
in a reasonable manner with proper regard for the rights of the
member and his property. w , P.2d
670 at 938.
Relying on this case, Ballenger argues that Northern Lights
unreasonably refused to apply Member Service Policy No. 402 to his
special circumstances. He maintains that the Cooperative, in
accordance with its duty to act reasonably, should have accepted
his offer of partial payment and a lien on his crops.
We disagree. From the depositions it is clear that Member
Service Policy No. 402 applied only to residential accounts and
never to irrigation accounts.
4
Second, as the District Court found, and as is clearly stated
in m, the policy of Northern Lights allowing disconnection of
service for nonpayment of fees was reasonable. See, m, 670 P.2d
at 938. Moreover, Northern Lights' implementation of this policy
under these circumstances was reasonable. Ballenger was over three
years overdue on his account. Despite opportunities to pay off the
balance, Ballenger chose not to do so. Instead, he chose to gamble
on the fact that he would not need to irrigate in 1985. When it
became clear that he would have to irrigate, he attempted to enter
into a deal with Northern Lights, offering them a lien on his
crops. He has presented no authority that requires a cooperative
to accept a crop lien as security. Under these agreed facts,
Northern Lights simply had no duty to extend further credit to an
overdue delinquent account.
Finally, Ballenger argues that at the time he asked the
Cooperative to supply electricity to his accounts, he had $1,914.90
worth of capital credits. There is no evidence, however, that he
offered those credits at that time or that they were discussed.
Therefore, we do not consider the existence of those credits in our
determination.
In short, we find the only substantive legal issue provided
by this case is whether Northern Lights reasonably refused to
provide power to Ballenger's pumps. In light of the clear
contractual language contained in the Service Order and Membership
Application, and the agreed facts, the only conclusion which can
5
be reached is t h a t such a c t i o n w a s r e a s o n a b l e . Summary judgment
under Rule 5 6 ( c ) , M.R.Civ.P., w a s properly granted.
A f f inned.
* Justice /
We Concur: ,/ n
6
August 15, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Claude I. Burlingame and John D. Greef
Attorneys at Law
P.O. Box 9
Thompson Falls, MT 59873
Gary R. Christiansen
Warden, Christiansen, Johnson & Berg
P.O. Box 3038
Kalispell, MT 59903-3038
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA