Downs v. Smyk

No. 81-452
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982

ROBERT F. DOWNS,
Piaintiff and Respondent,
VS.

BERNARD SMYK, a/k/a BERNARD L. SMYK,
and LOIS A. SMYK,
Defendants and Appellants.

Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorabie Charles Euedke, Judqe presiding
Counsel of Record:
For Appellants:
Gregory Jackson, Helena, Montana
Douglas B. Kelly, Helena, Montana
Bernard Smyk, Pro Se, Billings, Montana
For Respondent:
Calton & Hamman, Billings, Montana

Submitted on briefs: June 21, i982
~ecided:September 23, 1982

Filed:
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.

Defendant Smyk appeals from summary judgment in the

Thirteenth Judicial District Court, Yellowstone County, in
this action arising out of a written agreement between the
parties. The agreement (June 1976 agreement) provided that

Downs would advance money for the downpayment in the purchase
of certain real property in Billings. This action arose

when Downs and Smyk were unable to agree about the meaning
and implementation of the terms of the June 1976 agreement.
We reverse the District Court in part, affirm in part,
and remand for trial.
Defendant Smyk presents the following issues to this

Court:
(1) Whether the District Court acted within its authority

in granting a remedy allowing Downs exclusive control over
the contractual arrangements for the property for a period
of one year.
(2) Whether the District Court erred in ruling that

defendant was not entitled to a jury trial.
(3) Whether the District Court erred by granting

summary judgment .
Smyk filed appellant's brief acting - -
pro se. Thereafter,

he hired an attorney, who authored the appellant's reply
brief. Respondent Downs moves this Court to strike the
reply brief as being "an entirely new second Appellant's
brief" that raised new issues, some of which were not before
the District Court, others of which were raised in neither
the appellant's brief nor the respondent's brief.
Traditionally this Court has accorded some procedural

leeway to litigants proceeding - -
pro se. This "leeway" does

not extend to allowing them to raise issues which are not
properly before this Court, and to disadvantage their opponents

by raising new matters in their reply briefs. Rule 23(c),

M.R.App.Civ.P. states that ". . .[tlhe reply brief must be
confined to new matter raised in the brief of the respondent."
Our consideration of Smyk's arguments, therefore, will be
limited to the above issues, which we find to be properly

before this Court.
In March of 1976, the owner of a 7 1/2 acre parcel of
land in Billings offered Smyk a 120-day option to purchase
the property for $300,000 with $60,000 down. Smyk had
leased the land during the previous several years for his
used-equipment business, and desired to purchase it, but was
unable to raise $60,000 for the downpayment. In June of

1976, Smyk and Downs entered into an agreement, whereby

Downs would advance Smyk the downpayment and receive certain
benefits, including a 50% interest in the property. Rental
income was to be placed in a separate account for the benefit

of the parties. The agreement also provided:
"Downs will control any contractual arrange-
ments until Smyk has contributed by payment
of the monthly installments, the sum of
$60,000.00. At that time, Downs and Smyk
shall equally share all liabilities and
profits, if any."

In July of 1976, Smyk entered into a contract for deed
with the trustee for the property and made the downpayment

with the $60,000 advanced by Downs. Smyk continued to
occupy and use the property as his place of business but
ceased to make rental payments for such use.
In fall of 1977, prior to the equalization of contributions,
and therefore, during the period when Downs possessed authority
to "control any contractual arrangements," Downs was offered

$500,000 for the property. The offeror, Hammons, apparently
was willing to pay any penalty resulting from the sale, as
w e l l a s t o c o v e r a c c e l e r a t i o n of payments on t h e c o n t r a c t

f o r d e e d , i f a c c e l e r a t i o n r e s u l t e d from t h e s a l e . Downs

drew up a n e g o t i a t e d i n i t i a l agreement p r o v i d i n g f o r Smyk's
a p p r o v a l and t h e a p p r o v a l of t h e t r u s t e e f o r t h e o r i g i n a l

owner ( C a r l s o n T r u s t ) as r e q u i r e d under t h e c o n t r a c t f o r

deed s i g n e d i n J u l y of 1976. Downs c l a i m s h e s o u g h t Smyk's

a p p r o v a l of t h e s a l e , b u t Smyk r e f u s e d t o a g r e e t o s e l l t h e

property. Smyk e q u a l i z e d h i s c o n t r i b u t i o n w i t h Downs' on

F e b r u a r y 1 0 , 1978.

On F e b r u a r y 27, 1978, Downs f i l e d s u i t i n t h e D i s t r i c t

C o u r t s e e k i n g s p e c i f i c performance of t h e J u n e 1976 agreement,

o r , i n t h e a l t e r n a t i v e , p a r t i t i o n , and a n a c c o u n t i n g and

payment of r e n t a l s . An amended c o m p l a i n t was f i l e d i n

August o f 1978 s e e k i n g t o q u i e t t i t l e t o Downs' one-half

i n t e r e s t , p a r t i t i o n , a n a c c o u n t i n g and payment of income

due, and s e e k i n g a d e c l a r a t o r y judgment a s t o Downs' r i g h t t o

c o n t r o l s a l e of t h e p r o p e r t y .

Following t h e t a k i n g of d e p o s i t i o n s of t h e p a r t i e s ,

Downs f i l e d a motion f o r summary judgment p u r s u a n t t o Rule

56, M.R.Civ.P., on August 23, 1978, on t h e ground t h a t t h e r e

was no g e n u i n e i s s u e a s t o any m a t e r i a l f a c t . After briefing

on t h e motion, t h e D i s t r i c t C o u r t g r a n t e d summary judgment

on F e b r u a r y 1 3 , 1979, on Downs' c l a i m t o q u i e t t i t l e and h i s

c l a i m s e e k i n g a n a c c o u n t i n g and payment of r e n t a l and income

due. Judgment was e n t e r e d on F e b r u a r y 23, 1979, d e c r e e i n g

t h a t Downs owned a n u n d i v i d e d 50% of t h e p r o p e r t y under t h e
agreement and t h a t Smyk must a c c o u n t t o Downs f o r r e n t a l and

o t h e r income d e r i v e d t h r o u g h t h e u s e of t h e p r o p e r t y . he

D i s t r i c t C o u r t d e n i e d Downs' r e q u e s t s f o r p a r t i t i o n of t h e

p r o p e r t y and f o r " c o n t i n u a l c o n t r o l of t h e c o n t r a c t u a l

arrangements."
 Smyk appealed, and this Court affirmed the decision of

the District Court, finding that summary judgment was appro-

priate and that under the June 1976 agreement, Downs1 advance
of the downpayment of $60,000 gave him a 50% interest in the
property. See Downs v. Smyk (1979), Mont . , 604
P.2d 307, 36 St.Rep. 2300. Smykls petition for rehearing,
based in his assertion that he was denied his right to trial
by jury, was denied.
Downs next moved the District Court for summary judgment

entitling him to control contractual arrangements with
regard to property for one year or, in the alternative, for
partition of the property. He also moved the court to

compel discovery relative to the accounting. Smyk continued
to demand a jury trial, so Downs also moved for a declaration
that Smyk was not entitled to a jury trial in this action.
By order dated August 11, 1981, the District Court granted
Downs1 motion to strike Smykls demand for a jury trial and
granted summary judgment for Downs granting Downs exclusive
control of the contractual arrangements in relation to the
land for a period of one year. The ruling on the motion to

compel discovery was withheld, because defendants were acting
in a cooperative manner. Smyk appeals.

I.

Smyk argues that, because the remedy granted Downs was

not identical to Downs1 rights under the June 1976 agreement,
the remedy was not specific performance, and was not within
the authority of the court to grant. Smyk maintains that

because there was no provision in the agreement allowing
Downs one year to control contractual arrangements, the

District Court could not grant "specific performance" which
included that provision. Then Smyk argues that since Downs

failed to make contractual arrangements for the sale of the
property before Smyk contributed $6O,OOO, he forever lost
his right to do so.

We do not agree. The effect of the remedy was to
return the parties to the status quo at the time Downs

claimed Smyk refused to agree to the sale of the property,
then to require Smyk to specifically perform. Admittedly,
the creation of one year as a reasonable time to retain that
status quo, is somewhat artificial, but it is hardly a fatal
flaw in the judgment. In Link v. State By and ~hroughDepart-
ment of Fish and Game (1979), 180 Mont. 469, 591 P.2d 214,

this Court found that the Fish and Game Commission had
breached its agreement with park concessionaires Link, to
maintain and operate a "mountain railroad" at Lewis and
Clark Caverns. The Commission had obtained the railroad from
Links, but had eventually abandoned it. This Court found

that the District Court properly required both maintenance
and repair of the railway - return of the re-established
and
and repaired railway to the concessionaires. We stated:

"The only just, reasonable and feasible
solution was to compel specific performance
and return the Links to the position they
were in at the time the March 1950 contract
was entered into, where the Links could run
the railroad and the visiting public would
again be served with transportation facili-
ties to the mouth of the cave." Link, 180
Mont. at 482, 591 P.2d at 222.

This Court's rationale in Link, 180 Mont. at 482, 591 P.2d
at 222, follows:
"In a specific performance case, the District
Court sits as a court of equity and it is em-
powered to determine questions involved in the
case and to do complete justice. Hames v. City
of Polson (1950), 123 Mont. 469, 477, 215 P.2d
950, 955.

"'The plaintiffs may not in equity insist upon
the performance of the terms of the lease and
at the same time prevent the performance there-
of. One who prevents the performance of the
terms of a contract cannot avail himself of
the nonperformance which he himself prevents.
(Citations omitted).' Fey v. A.A. Oil Corp.
(1955), 129 Mont. 300, 319, 285 P.2d 578, 588."
We are unwilling to state that Smyk breached the June 1976

agreement, or even that the terms of the agreement necessarily
granted Downs the authority to decide - -
to sell as well as to
control contractual arrangements. Those matters must be
determined upon remand to the ~istrictCourt for trial.

(See Issue 111.) We only state that, if such a right existed
in Downs, and its exercise was prevented by Smyk, it was

within the power of the trial court to restore the parties
to the status quo before specifically enforcing the agreement.
Nor do we find that the period of one year for Downs to
control is unreasonable; the negotiation of the sale of a

good-sized parcel of valuable real estate might well take a
year.
In short, we hold that the District Court acted within

its authority in structuring the remedy it did.

Smyk contends that he was denied his constitutional
right to trial by jury on all issues raised in his case. He
relies upon the Montana Constitution, Article 11, section
26, which states:
"The right of trial by jury is secured to
all and shall remain inviolate. . ."
and Rule 38(a), M.R.Civ.P., which provides:
"The right of trial by jury as declared by
the Constitution of the State of Montana or
as given by a statute of the state of Montana
shall be preserved to the parties inviolate."

The right of trial by jury is guaranteed in virtually
identical language in both the 1889 and the 1972 Montana
Constitutions. The note following the guarantee in the 1972
Constitution states:
"For decisions relating to similar provisions
in the 1889 Constitution, see annotations fol-
lowing sec. 2 3 , Art. I11 of the 1889 Constitu-
tion. . .I'
The position of this Court in the matter of right to jury
trial in equity cases under the 1889 Constitution was clearly

set forth in Little v. Mackel (1968), 151 Mont. 421, 425,

"This action is one of specific performance
and is one that our Court handles under its
equitable jurisdiction. It has long been
recognized that specific performance of a
contract is a matter of equitable cognizance.
This Court held, in In re Bank's Estate, 80
Mont. 159, 260 P. 128, that 'The power to
enforce specific performance of a contract is
vested solely in courts having equitable juris-
diction; the remedy is purely equitable, as,
at common law, the only remedy available to a
party injured by a breach of contract was an
action for damages.'
"On the question of a jury trial for such
equitable actions this Court has held: 'It is
well settled by the decisions of this court
that in equity cases the judge may call a jury
to his assistance if he chooses, but is not
bound to do so. If he does, he is not bound
by the findings, but may reject them in whole
or in part and make findings of his own. There-
fore he is not required to submit the whole
case to the jury, but only such issues of fact
as he may choose. Whether he adopts the one
course or the other, the ultimate result is
to be regarded as emanating from the judge,
and its correctness is to be determined by
a review of his action, and not that of the
jury by the standard of counsel's judgment
as to what the jury ought to have been re-
quired to find. (citations omitted.)"
The transcript of the 1971-72 Montana Constitutional

Convention (Transcript) indicates that the only changes in
the 1889 Constitutional guarantee of right of trial by jury
involved criminal causes; except for those changes, the

transcript states: "The remainder of the section is proposed

without change." Transcript, Vol. 11, p. 642. Finally,
Delegate Holland did in fact move specifically to extend
jury trial rights to equitable actions, by rephrasing the
guarantee to read: "The right of trial by jury shall,

in all cases in law and equity, be secured to all. . ." The
motion failed. Transcript, Vol. V, p. 1792.
 It is evident to this Court that the 1972 Montana
Constitution does not extend the right of trial by jury to
equitable actions, and that the rule articulated in Little,

supra, is applicable here.
Smyk's reliance upon Rule 38(a), M.R.Civ.P., is also
misplaced, as Rule 39 clearly indicates the right stated in
Rule 38(a) is not absolute. Rule 39(a) refers to the court's
authority to find "that a right of trial by jury of some or
all of those issues does not exist," "those issues" being
the issues as to which jury trial is demanded. Rule 39(c)
refers to actions "not triable of right by a jury." The
rules do not indicate which actions and issues do not carry
a right to jury trial. Early case law, which is still

viable, together with the transcript of the 1972 Constitutional

Convention, has filled that gap, and firmly establishes that
the right to trial by jury does not attach to cases in
equity. Smyk has no constitutional right to demand a jury

trial in this cause.
Smyk also argues that the remedy granted by the District
Court went beyond specific performance, and thus was not an
equitable remedy. We have concluded, infra, that the District
Court acted within its authority in granting specific performance
in the manner it did. The remedy, like the action, remains
an equitable one.
Smyk argues that he was entitled to have a jury make
factual determinations concerning the accounting and payment
to Downs of rental income from the property. As Downs
correctly points out:
"[Tlhe issue is improperly raised. The account-
ing was ordered by the District Court in the
Order dated February 13, 1977, granting partial
summary judgment. Smyk appealed that Order but
made no objection to the Court's ordered account-
ing. He cannot now raise this issue on a second
appeal. "
Furthermore, in 1981, Downs sought only to have the Court

compel discovery, claiming that Smyk refused to surrender to

Downs information crucial to the accounting. There was no
real factual issue, and, as the order of August 11, 1981,

reflects, Smyk had cooperated with Downs' demands for discovery,
and there was no present need to rule on Downs' motion to

compel discovery. There is no merit in this argument.
The District Court properly ruled that Smyk was not
entitled to trial by jury as a matter of right.
111.
The final and determinative issue before this Court is
whether summary judgment was appropriate. Smyk addresses
this issue in his reply brief in response to two arguments
in Downs' respondent's brief. See M.R.App.Civ.P., Rule

23(c). Downs states: (1) "It is uncontested that Downs had
obtained a ready and willing buyer before Smyk's contribution
had equalled Downs', but Smyk refused to sell." (2) h he

intent of the parties at the time the contract was entered

into was that Downs would have control over contractual
arrangements with regard to the property until such time as
Smyk's contribution equalled Downs'. Downs attempted to

exercise that right but Smyk wrongfully refused to sell the
property to a third party."
Smyk now argues that the record before the District
Court clearly indicated his position: (1) that the intent
of the parties in granting Downs temporary control over
contractual arrangements did not include granting him the
right to determine that the property would be sold; (2) that
Downs never presented Smyk with a concrete offer he could
either accept or reject. Smyk maintains that these unsettled

factual questions should have precluded summary judgment.
We agree.
 "Under Rule 56(c), M.R.Civ.P., a summary
judgment is proper only if the record dis-
closes no genuine issue of material fact
and that the movant is entitled to judg-
ment as a matter of law. Reaves v. Rein-
bold (1980), Mont., 615 P.2d 896, 37 St.
Rep. 1500; Rumph v. Dale Edwards, Inc.
(1979), Mont., 600 P.2d 163, 36 St.Rep.
1022. The party moving for summary judg-
ment has the burden of showing the complete
absence of any genuine issue as to all
facts which are deemed material in light of
those substantive principles which entitle
him to a judgment as a matter of law. Big
Man v. State (1981), Mont., 626 P.2d 235,
38 St.Rep. 362; Harland v. ~nderson (1976),
169 Mont. 447, 548 P.2d 613. Once the
movant has established that no material
issues of fact exist, the burden shifts to
the opposing party to raise an issue of
fact." Krone v. McCann (1982), Mont.
7 -
, 638 P.2d 397, 399-400, 39 St.Rep. 10,

"It is well established in Montana that all
reasonable inferences that may be drawn from
the offered proof are to be drawn in favor
of the party who opposes summary judgment.
Reaves v. Reinbold (1980), Mont., 615 P.2d
896, 37 St.Rep. 1500, and cases cited there-
in." Brown v. Merrill Lynch, Pierce, Fenner
& Smith, Inc. (1982), Mont. , 640
P.2d 453, 457, 39 St.Rep. 305, 309-310.

In considering a motion for summary judgment, the court is
to look at the record, which includes "pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any. . ." Rule 56(c), M.R.Civ.P.
This action is based upon a complaint filed in February
of 1978 and amended in August of 1978. The amended complaint
alleges, among other things, that Smyk refused to agree to

any sale of the property in question to the offeror, Hammons,
despite repeated demands by Downs that he do so; and that
such refusal was in violation of Downs' rights to control
sale of the property under the June 1976 agreement. In his
answer, filed in September of 1978, Smyk specifically
denied the above allegations.
Smyk, in his brief in opposition to Downs' August 1978
motion for summary judgment, asserted that there were "numerous
issues of material fact which the defendants contend to be

genuine." Smyk stated that he "never received a concrete
offer from anyone" for the property, and that Downs had
presented no evidence to the contrary. He flatly denied
that Downs requested that Smyk agree to a sale to Mr. Hammons
or Hammons Industries, or presented him (Smyk) with a buy-
sell agreement for examination.
Downs, responding to Smyk's assertions, referred to the

following few lines in Smyk's deposition, as he has continued
to refer to and rely upon them:
"Q. Now, Mr. Smyk, do you recall last fall
that Mr. Downs requested that you agree to
a sale of this property to a man named
Hammons? A. Yes, he told me that he had
been in contact with Hammons in regard to
selling it, or trying to sell it, or buy it
or whatever.
"Q. Did you at any time agree to any such
sale? A. No."

Downs would have this Court interpret Smyk's statements as
proof of both the statement and rejection of Downs' request
that Smyk agree to the sale of the property to Hammons. But

the statements could as reasonably be read to mean that,
while Downs mentioned to Smyk in passing that Hammons had
expressed interest in purchasing the property, he did not
request or receive Smyk's approval. Smyk did not say that

he refused to sell, only that at no time had he agreed to
it. The record clearly indicates Smyk's repeated denial of
Downs' assertion that Smyk had refused to sell the property.

In the absence of proof that Smyk had so refused, we find
Downs failed to establish that there existed no genuine
issue of material fact.
Smyk also maintains, as he has throughout this action,

that neither party intended to sell the property and the
June 1976 agreement providing for Downs' control of "any

contractual arrangements" did not contemplate the possibility
of Downs forcing Smyk to agree to sell the property.

Ordinarily, extrinsic evidence of the terms of a written
agreement is inadmissible. Section 28-2-905, MCA. However,

where the terms of a document are unclear or ambiguous, and

parol evidence will indicate the parties' purposes in
executing the agreement and facilitate necessary interpretation

of their intent, parol evidence will be admitted. See
sections 28-2-905(a), (b) and 1-4-102, MCA; Fillbach v.
Inland Construction Corporation (1978), 178 Mont. 374, 584
P.2d 1274. In Thisted v. Country Club Tower Corporation (1965),
146 Mont. 87, 96, 405 P.2d 432, 436, this Court, citing
earlier cases, stated that, while the written instrument
cannot be contradicted or varied by parol testimony, "[tlhe

rule does not forbid an inquiry into the object of the
parties in executing and receiving the instrument." (Cites
omitted.) Here the District Court was presented with an

inartfully drawn and imprecise instrument; reference to
extrinsic evidence indicating the intention of the parties
was proper. Moreover, because the same attorney represented

both clients in drafting and witnessing the signing of the
agreement, the intent of the parties, and the circumstances
surrounding the agreement are particularly important.
Downs has consistently maintained that his exercise of
his "rights" under the June 1976 agreement was precluded by
Smyk's refusal to agree to sell. Smyk has denied, from the

time he answered the amended complaint, that Downs' rights
included the right to control the decision - -
to sell. The
disputed provision merely states that Downs will control

"any contractual arrangements" until contributions are
equalized. It is unclear whether this provision is so broad

that it allows Downs virtually unlimited control over the
use and disposition of the land, or whether it merely means
t h a t , when t h e p a r t i e s a g r e e upon a c e r t a i n c o u r s e o f a c t i o n

r e g a r d i n g t h e p r o p e r t y , Downs w i l l t h e n c o n t r o l any c o n t r a c t u a l

arrangements.

The r e c o r d c o n t a i n s t h e f o l l o w i n g s t a t e m e n t s :

(Downs D e p o s i t i o n ) : " [ 0 ] u r a g r e e m e n t was t o
buy t h e l a n d a n d , a s s o o n a s w e c o u l d s e l l
i t , t o make a p r o f i t . I t ' s j u s t t h a t simple.

"Q. You h a v e n o t a t a n y t i m e had a p r o f e s s i o n -
a l a p p r a i s a l o f t h i s p r o p e r t y made. (No res-
ponse. )

"Q. I b e l i e v e t h a t ' s what you t o l d m e e a r l i e r .
A. That's right.

"Q. A r e you a w a r e w h e t h e r M r . Smyk h a s e v e r
done s o ? A. I d o n ' t know what M r . Smyk h a s
done.

"Q. O r anyone e l s e ? A . --He w a s n ' t t r y i n g
t o s e l l i t . T h a t w a s n ' t what w e was t r y i n g
t o d o when w e g o t i n t h e r e . "

(Smyk's a n s w e r s t o i n t e r r o g a t o r i e s : )

"The a t t a c h e d a g r e e m e n t i s t h e w r i t t e n docu-
ment t h e p a r t i e s s i g n e d , a l t h o u g h b o t h r e a l i -
zed t h a t it d i d n o t i n f a c t r e f l e c t t h e i n t e n -
t i o n of t h e p a r t i e s . "

I n t h e o r i g i n a l a p p e a l , Downs v . Smyk, s u p r a , t h i s

C o u r t f o u n d t h a t t h e r e was no g e n u i n e i s s u e o f m a t e r i a l f a c t

before t h e Court. Clearly, t h a t finding i s applicable only

t o t h o s e m a t t e r s a s t o which summary judgment was a c t u a l l y

granted; t h i s Court w i l l n o t determine t h e p r o p r i e t y of

r u l i n g s which a r e n o t p l a c e d i n i s s u e on a p p e a l . Here,

however, t h e r e a r e c l e a r l y u n r e s o l v e d f a c t u a l d i s p u t e s which

h a v e e x i s t e d from t h e i n c e p t i o n o f t h i s a c t i o n . It is

evident t o t h i s Court t h a t t h e D i s t r i c t Court e r r e d i n

f i n d i n g t h a t no g e n u i n e i s s u e s o f m a t e r i a l f a c t e x i s t e d and

g r a n t i n g summary judgment t o Downs.

T h e r e f o r e , w e r e v e r s e t h e D i s t r i c t C o u r t ' s o r d e r of

August 11, 1981, and i t s f i n a l judgment e n t e r e d September

1 6 , 1981, i n s o f a r a s t h e y g r a n t Downs o n e y e a r o f c o n t r o l
over contractual arrangements, and remand the matter for
trial on the merits. We affirm the 3istrict Court in its
determination that Smyk is not entitled to a jury trial in

this matter.

We do note, in returning this cause for trial, that

the imprecision and incompleteness of several of the provisions
in the June 1976 agreement warrant careful attention to the
circumstances surrounding the agreement and the purposes and
intentions of the parties in executing the agreement. We
have pointed out that the provision allowing Downs control

of "any contractual arrangements" until payments were equalized
could mean either control over every decision regarding use
and disposition of the property, or shared determinations of
use and disposition, with Downs controlling all the consequent
contractual arrangements. The agreement also fails to set
forth the resulting rights and liabilities of the parties

should Smyk default on the contract for deed, or should
Downs force partition and sell his interest in the property.
The provision that, after equalization, Downs and Smyk would
share equally "all liabilities and profits, if any," leaves
open the question whether "liabilities" includes payments on
the contract for deed. The parties themselves appear to

agree that Downs' payment of $60,000 toward the $300,000
purchase price was all that was required of him, and that
the remaining $240,000 was to be paid by Smyk.
The imprecise agreement was witnessed by an attorney
who was representing both parties, and firmly underscores
the principle that an attorney cannot effectively represent
the interests of adverse parties, or, as here, clients whose
interests are clearly divergent and potentially adverse.
We also note the failure of Downs to request specific

performance as a remedy in his amended complaint.
Reversed in part, affirmed in part and remanded to the

District Court for further proceedings consistent with this
opinion.

W e Concur:

PA&
Chief J u s t i c e
a
d+