No. 02-425
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 23N
CECIL B. CURREY,
Plaintiff, Counterdefendant and Respondent,
v.
SHELBI L. PAUL,
n/k/a SHELBI L. GULLINGS,
Defendant, Counterclaimant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV 96-905,
Honorable Thomas C. Honzel, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Shelbi L. Gullings, Pro Se, Great Falls, Montana
For Respondent:
Cecil B. Currey, Pro Se, Lutz, Florida
Submitted on Briefs: December 5, 2002
Decided: February 3, 2004
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent. It shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 Shelbi L. Paul (Paul) appeals from the order of the First Judicial District Court
denying her motion for summary judgment, and from the judgment entered thereafter by the
First Judicial District Court, following a bench trial, which denied damages on her
counterclaims against Cecil B. Currey (Currey) for breach of contract. We affirm.
¶3 The dispositive issue on appeal is whether the District Court erred in denying Paul’s
motion for summary judgment on her counterclaims.
BACKGROUND
¶4 In July 1994, Paul entered into an installment contract for purchase of real property
owned by Colleen Larson in Lewis and Clark County. In 1995, Larson assigned her interest
in the property and her contract with Paul to Currey. Following Paul’s failure to make a
timely payment in May 1996, Currey issued a notice of default alleging several contract
violations, and when Paul did not cure the asserted defaults within the thirty-day period
provided by the contract, Currey declared a forfeiture, closed the escrow and filed a quit
claim deed vesting himself with title. When Paul did not vacate the property, Currey filed
an action for unlawful detainer on July 17, 1996, seeking an order requiring Paul to vacate.
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¶5 However, Paul did not receive the notice, and after learning of Currey’s actions from
the escrow agent, notified Currey, through counsel, that the notice of default was defective.
The parties then attempted to negotiate a new contract for deed, but were unsuccessful.
Currey then unilaterally reinstated the escrow account and issued a second notice of default
in March 1997, which was followed by Paul’s filing of a bankruptcy petition, and the
subsequent dismissal thereof. Paul then filed counterclaims against Currey in the detainer
action for breach of contract, malice and intentional infliction of emotional distress. With
leave of court, Currey amended his complaint to seek a judgment declaring him the legal and
equitable owner of the property.
¶6 Following discovery, Currey moved for summary judgment on his claims and against
Paul’s counterclaims. The District Court dismissed Paul’s counterclaims, but ruled that
forfeiture of Paul’s contractual interest was inappropriate, given Currey’s actions.
Concluding that Currey had wrongfully deprived Paul of legal and possessory interest of the
property, the court ordered reinstatement of the contract and, following the parties’ inability
to agree on the dollar amount necessary for Paul to bring the contract current, held a hearing
and determined the amount due. In so doing, the District Court concluded that because
Currey had deprived Paul of the use and quiet enjoyment of the property, Paul was entitled
to a suspension of payments which was factored into the calculation of, and greatly reduced,
the amount required for Paul to reinstate the contract. Currey appealed that order to this
Court, and we affirmed the District Court in Currey v. Paul, 2000 MT 305N.
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¶7 After remittitur, the District Court granted the parties leave to amend their pleadings
and scheduled a nonjury trial. Paul filed seven counterclaims, asserting breach of contract
and of the covenant of good faith and fair dealing, and malice. Currey filed an answer to
Paul’s counterclaims and also filed “counterclaims” against Paul. The parties contested the
sufficiency of Currey’s compliance with the District Court’s earlier order to reinstate the
contract, as well as an additional notice of default that Currey had issued to Paul in June
2000, when she again ceased making payments. Paul moved for another suspension of
payments for Currey’s alleged deficiencies in reinstating her interest.
¶8 Following additional discovery, Paul moved for summary judgment on her
counterclaims. Concluding there were disputed issues of material fact, the District Court
denied the motion and all claims proceeded to trial on November 20, 2001. The court
entered findings of fact, conclusions of law and an order on February 15, 2002, which
concluded that Currey had failed to properly reinstate Paul to her interest in the property and
was not entitled to forfeiture of Paul’s interest; that Paul was entitled to reinstatement to the
contract and to another suspension of her payments; and that, in accordance with Paul’s
counterclaims, Currey had violated the covenant of good faith and fair dealing, but that Paul
had failed to prove any damages. The court also concluded that Currey was not entitled to
damages, and thus, awarded damages to neither party.
¶9 On June 5, 2002, following denial of her motion to alter or amend, Paul filed a notice
of appeal from the judgment, specifically referencing the District Court’s earlier order
denying her motion for summary judgment on her counterclaims. Currey filed a cross-
appeal. Paul then provided written notification that a transcript of the trial would be
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unnecessary for her appeal. Currey disagreed and moved the District Court to require Paul
to obtain a transcript of the trial. The District Court conducted a hearing on the motion.
Paul thereafter agreed to limit her issues on appeal to (1) “issues [that] relate only to the
Summary Judgment proceedings and the record as it existed at that time,” and (2) Currey’s
failure to offer the videotaped deposition of Duane Fagnon at trial. In response thereto,
Currey withdrew his motion requesting that Paul provide a transcript, and also moved this
Court to dismiss his cross-appeal, which this Court ordered on August 13, 2002.
DISCUSSION
Did the District Court err in denying Paul’s motion for summary judgment on her
counterclaims?
¶10 As a preliminary matter, we must address the propriety of several issues which Paul
has raised on appeal, and Currey’s objection thereto. Currey asserts that Paul’s briefing
raises and argues issues which are beyond those which she represented she would raise on
appeal. We agree. Paul argues that the District Court erred by failing to award her attorney
fees and costs, and by failing to “apply the undisputed facts of this case to the unambiguous
terms of the contract,” an argument which inherently challenges the District Court’s findings
of fact and conclusions of law. Both of these arguments are beyond the issues Paul indicated
she would raise, and upon which Currey relied and acted accordingly, withdrawing his
motion for a transcript and dismissing his cross-appeal. Rule 9, M.R.App.P., contemplates
that parties may limit the record on appeal to that which is necessary to the issues raised.
However, we have declined to address an issue when a party fails to provide a transcript
which is necessary for review thereof. S.M. v. R.B. (1993), 261 Mont. 522, 530-31, 862 P.2d
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1166, 1171. We decline to address these issues, denominated in Paul’s briefing as Issue 2
and Issue 4.
¶11 Currey also objects to Paul’s Issue 1 on the same basis. Although we conclude that
Issue 1, in which Paul asserts that the District Court failed to consider facts which were
established in the proceeding prior to the first appeal and relied upon by this Court, is
conceivably an issue falling within “the record as it existed at that time” of Paul’s motion for
summary judgment, and therefore, within the issues she designated for appeal, we
nonetheless decline to reach the merits. Paul wholly fails to explain what previously
established facts were ignored by the District Court, and what error resulted from this
omission. “It is well settled that a district court’s decision is presumed correct. . . . It is
equally well settled that an appellant bears the burden of establishing error by the trial court.”
Matter of M.J.W., 1998 MT 142, ¶ 18, 289 Mont. 232, ¶ 18, 961 P.2d 105, ¶ 18 (citation
omitted). Paul has failed to carry her burden on her denominated Issue 1, and, therefore, we
affirm.
¶12 Paul’s remaining arguments fall within the stated dispositive issue, whether the
District Court erred in denying her motion for summary judgment on her counterclaims for
breach of contract. We review a District Court’s grant or denial of summary judgment de
novo. Giambra v. Traveler’s Indem. Co., 2003 MT 289, ¶ 9, 318 Mont. 373, ¶ 9, 78 P.3d
880, ¶ 9 (citing Cole ex rel. Cole Revocable Trust v. Cole, 2003 MT 229, ¶ 8, 317 Mont.
197, ¶ 8, 75 P.3d 1280, ¶ 8). We also review any legal conclusions concerning the grant or
denial of summary judgment for correctness. Giambra, ¶ 9. The summary judgment movant
must prove that no genuine issues of material fact exist, and that the movant is entitled to
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judgment as a matter of law. Cole, ¶ 8. The District Court denied Paul’s motion for
summary judgment on her breach of contract counterclaims because it concluded there were
genuine issues of material fact which precluded summary judgment on the claims. We agree.
¶13 Paul’s counterclaims alleged that Currey had breached the contract by various acts.
However, a review of the record reveals that material factual disputes remained in regard to
these claims, and that Paul had not established that she was entitled to judgment as a matter
of law. Paul claimed that Currey breached the contract by acting to foreclose the contract
when the contract was not in default. However, the evidence, including the deposition of
R.J. Sewell, Currey’s attorney at that time, revealed a dispute over the material factual issue
of whether Paul was in default at the time Currey engaged in the acts of foreclosure.
Likewise, Paul alleged that Currey breached the contract by depriving her of her right to
make payment as specified in the contract, but again, this issue is tied to the factual
contentions about Paul’s default status. Paul alleged that Currey breached the contract by
his filing of the original complaint, after Paul had notified him that the notice of default was
defective. However, the letter from Paul’s then counsel, Steven Fagenstrom, to R.J. Sewell,
advising Sewell of Paul’s position regarding the notice of default, was dated July 23, 1996,
one week after Currey had commenced litigation, revealing a dispute of material fact over
timing. Paul counterclaimed that Currey had breached the contract by failing to comply with
the District Court’s order requiring reinstatement, but that issue required fact-finding which
the District Court performed after hearing the witnesses at trial. Thereafter, the District
Court concluded that Currey had failed to reinstate the contract as ordered, but also
concluded that no damages had been proven by Paul. Finally, relying on a certificate of
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survey, Paul claimed that Currey had breached the contract by obstructing the easement road.
However, while a certificate of survey may serve to establish an easement’s existence, it
alone does not demonstrate the location of the actual road–which was asserted to be different
than indicated on the survey–nor establish that Paul was entitled to judgment as a matter of
law.
¶14 The many documents submitted by Paul in support of her request for summary
judgment did not conclusively establish the facts she drew therefrom and insisted were
without dispute. Further, it should be noted that the arguments made in Paul’s District Court
briefing on these issues were cursory summations of complicated issues, with minimal
citation to authority.
¶15 On review, we cannot conclude that the District Court erred in denying Paul’s motion
for summary judgment and in requiring that Paul’s counterclaims be adjudicated at trial.
Therefore, the District Court’s judgment is affirmed.
/S/ JIM RICE
We concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ PATRICIA O. COTTER
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