NO. 94-218
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
JOSEPH SEBENA, DANIEL SEBENA and
SEBENA PAVING INC a Montana Corp.
Plaintiff;,
-v-
STATE OF MONTANA, et al.
Defendants,
ROGER JONES. MARLENE JONES, and
DONNA WALKER,
Cross-Claim Plaintiffs, &
Appellants,
-v-
STATE of MONTANA,
Cross-Claim Defendant and
Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Eula Compton, Missoula, Montana
For Respondent:
John H. Tarlow, Landoe, Brown, Planalp and Braaksma,
Bozeman, Montana: Roy H. Andes, Montana Department
14 Q/ '7 jyyi,. Submitted on Briefs: August 18, 1994
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the grant of summary judgment to the
State of Montana by the Eighteenth Judicial District Court,
Gallatin County. We affirm.
We consider the following issues on appeal:
I. Did the District Court err in granting the State's motion for
summary judgment on the Joneses' and D. Walker's negligence claim
where the judgment was based on the court's legal determination
that the State has no duty of care to third parties in the
selection of lessees of state lands?
II. Did the District Court abuse its discretion in failing to
enjoin the State from re-leasing land formerly leased to M & W
Enterprises?
III. Did the District Court err in granting summary judgment on the
Joneses' and D. Walker's quantum meruit claim?
The State of Montana owns school trust land located at North
7th Avenue in Bozeman. The land is administered by the Department
of State Lands (DSL). DSL leased this tract of land to M & W
Enterprises (M & W) for a ten-year period beginning in April of
1989. M & W agreed to pay $3,000 yearly for the purpose of
building an amusement park complete with a waterslide area.
The DSL lease was signed by Bill Metzger (Metzger) and Lonnie
Walker (L. Walker), alleged general partners of M & W Enterprises,
a limited partnership. Cross-Claimants in this case are Roger
Jones and Marlene Jones (the Joneses) and Donna Walker (D. Walker).
The Joneses paid $50,000 to Metzqer and L. Walker and signed
2
an agreement whereby they were promised ten percent of the stock in
llAdventureland", the envisioned corporation which was to be created
in connection with the DSL leased land. In a similar manner, D.
Walker invested $35,000 and the agreement which she signed with
Metzger and L. Walker stated that she would receive 3.5 percent of
the business. The record does not demonstrate that the corporation
Adventureland was ever organized. Instead, both entities were made
limited partners of a registered limited partnership called M & W
Investments--represented later to the Bankruptcy Court during the
subsequent Bankruptcy proceedings of M & W general partners as the
same entity as M & W Enterprises.
During the summer of 1989, Metzger and L. Walker installed the
waterslide and made improvements to the land. During this time, M
& W began to encounter financial problems, and as a result, did not
proceed further in the organization of the corporation.
During the summer of 1991, the Joneses and D. Walker obtained
a non-dischargeable fraud judgment in Bankruptcy Court against L.
Walker and Metzger totalling $85,000. The Joneses and D. Walker
had recovered approximately $55,000 of this amount at the time of
the hearing.
An attorney representing the Joneses, D. Walker, and other
investors approached DSL in 1991 and 1992 inquiring about assuming
the lease from Metzger and L. Walker. DSL refused this course of
action because of the unresolved liabilities that already
surrounded the property. DSL never received a formal assignment
proposal.
State lease #4586 to M & W Enterprises was canceled for non-
payment of rent on April 1, 1992. The lease itself provided a 60
day period in which persons with a claim against the improvements
on the piece of land could file their claims. No such claims were
ever filed and although DSL offered to permit the Joneses to remove
and salvage the waterslide, the Joneses did not do so.
The Joneses and D. Walker procured a purported assignment of
Metzger's and L. Walker's interests in state lease #4586 in
November of 1992. However, the record is devoid of any evidence
that this assignment proposal was ever submitted to DSL for
approval, nor were the regulatory procedures followed in the
attempt to make the assignment.
DSL did not lease this land for two years following the
cancellation of M & W's lease. In 1994, DSL leased the land for
$28,200.
This case was originally filed by Sebena Paving as a
construction lien foreclosure against a state lessee, M & W
Enterprises. Sebena sued anyone with an interest in the property,
including the State, the Joneses, D. Walker, and other creditors
and investors in the project. Sebena Paving and the other parties
plaintiff were dismissed as parties to the current action. They
were not involved in any manner in this appeal.
In February of 1992, the Joneses and D. Walker filed a two-
count cross-claim against the State seeking to recover their losses
as investors. They subsequently added a third count in auantum
meruit. The State moved for summary judgment on all counts. The
4
District Court granted summary judgment and dismissed the cross-
claims.
From these orders the Joneses and D. Walker appeal.
Did the District Court err in granting the State's motion for
summary judgment on the Joneses' and D. Walker's negligence claim
where the judgment was based on the court's legal determination
that the State has no duty of care to third parties in the
selection of lessees of state lands?
Appellants argue that the State is responsible for the
negligence of its employees and that employees of DSL were
negligent in not investigating the background of Metzger and L.
Walker. Appellants argue that the State has a duty to lease its
land to the best lessee it can find.
The respondent State contends that it has no duty to third
persons such as appellants in this action. The State argues that
injury alone does not create a liability; there must be a legal
duty imposed on the State that has been breached in order for
negligence to lie. The State concedes that it must act prudently
with regards to leases of state lands: however, the prudence
required, according to the State, exists to favor the State and not
the lessee.
The court granted summary judgment because it determined that
the State had no duty to the Joneses or D. Walker. Summary
judgment is appropriately granted when there is no genuine issue of
material fact and the moving party is due judgment as a matter of
5
law. Mogan v. Cargill, Inc. (1993), 259 Mont. 400, 856 P.2d 973.
While some of the facts in this case are disputed by the
parties, the material facts are not. The record shows that the
lease to M & W was automatically canceled in April of 1992. The
record also shows that the automatic cancellation provision is
listed in the signed lease at paragraph 3--the provision is typed
in capital letters; the lease is signed by both parties. When a
contract is clear on its face, the only responsibility that this
Court has is to enforce the contract as the parties intended.
First Sec. Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148,
818 P.2d 384. The parties clearly provided that the lease
automatically expire April 1, 1992, if the yearly payment was not
received by DSL.
We affirm the conclusion of the District Court that the lease
automatically terminated April 1, 1992, as a result of the
nonpayment of rent. We further conclude that the purported
assignment of that lease in November 1992, was ineffective as the
lease had already been cancelled.
Appellants would have us interpret § 77-6-205(2), MCA, as
imposing upon the State a duty to the public to investigate
potential lessees. While DSL has a statutory "duty," that duty is
to the State of Montana:
The board shall accept the highest bid. If the lessee
exercises the preference right and believes the bid to be
excessive, the lessee may request an administrative
hearing. . . .The department shall grant the request for
a hearing if it determines that the statement indicates
evidence that the bid may not be in the state's best
interests. . . . It is the dutv of the board to secure
the best lessees possible, so that the state may receive
6
the maximum return possible with the least injury
occurrinq to the land. (Emphasis added.)
Section 77-6-205(2), MCA. The statutory obligation on the part of
the State Land Board is to secure the maximum return to the State
with the least injury to the land. The statute does not create any
obligation to third parties.
Appellant cites Jeppeson v. State Dept. of State Lands (1983),
205 Mont. 282, 667 P.2d 428, for the proposition that DSL has a
duty to exercise due care in its handling of leases. DSL admits
that they must act prudently. However, a thorough reading of
Jeppeson also reveals that this Court will not reverse a DSL
decision unless it finds the decision arbitrary or capricious:
This Court will not disagree with the proposition that
the department should act as prudently as possible with
respect to the handling of lease assignments. But we
find no evidence suggesting even a hint of arbitrary and
capricious behavior on the part of respondent or its
employees. . . . this Court will not compel a state
agency to make a particular decision with respect to a
matter when that agency exercises its own judgment and
discretion, and has not violated any statutory provisions
or engaged in fraudulent action.
Jeppeson, 205 Mont. at 292-293, 667 P.2d at 433. The record
contains no evidence that the State acted imprudently, arbitrarily,
or capriciously when it leased the land to M & W.
We conclude that the State is correct in its contention that
the lease was canceled on April 1, 1992. We further conclude that
there was no genuine issue of material fact which precluded summary
judgment. We hold the District Court correctly granted the State's
motion for summary judgment on the Joneses' and D. Walker's
negligence claim where that judgment was based on the court's legal
7
determination that the State has no duty of care to third parties
in the selection of lessees of State lands.
II
Did the District Court abuse its discretion in failing to
enjoin the State from re-leasing land formerly leased to M & W
Enterprises?
The complaint in this action was filed in September of 1991
and the Joneses' and D. Walker's cross-claims were filed on
February 1, 1992. The Joneses and D. Walker allege that at
sheriff's sale they purchased 100 percent of the issued and
outstanding shares of Metzger Real Estate, Inc., and this purchase,
along with their prior investments in the M & W partnership,
entitles them to an interest in the DSL lease which was still in
force in February of 1992.
Because of their claimed interest in the lease with DSL, the
Joneses and D. Walker petitioned the court for an injunction
against DSL to prevent DSL from re-leasing the property until DSL
fully compensated persons for the improvements made to the leased
property. The Joneses and D. Walker contend that their interest in
M & W entitles them to the injunction. They argue that the court
should have granted the injunction until such time as the parties
had been compensated completely for the improvements to the land
that had been made with their money.
The State argues that M & W "Investments" is not the party
that is the lessee in this case. DSL leased land to M & W
"Enterprises," a different legal entity. Further, DSL claims that
8
it provided an opportunity for persons with an interest in the
improvements on the land in question to file claims for removal of
the improvements. No claims were filed, and as a result, DSL
argues that this question of compensation for improvements is moot.
The lease signed by Metzger and L. Walker for M & W calls for
improvements to be removed within 60 days of the lease
cancellation. The record indicates that despite this 60 day limit,
DSL informed the appellants' counsel by letter on September 17,
1992, that the Joneses and D. Walker could remove improvements
traceable to her clients within 60 days after the date of the
letter. Therefore, the record indicates that appellants had seven
months within which to remove the improvements or make claims for
compensation. No one made an attempt to remove anything from this
leased property nor file a claim for compensation. We conclude
that the appellants cannot now claim that DSL failed to provide an
opportunity for such removal when the record is clear that they had
more than the contractually required time in which to remove such
improvements or make a claim.
Based on these facts, the District Court denied the
appellants' request for an injunction stating that no basis existed
for such remedy. The grant or denial of an injunction is a
discretionary ruling of the court and we will not reverse that
ruling absent an abuse of discretion. Gabriel v. Wood (1993), 261
Mont. 170, 862 P.2d 42. The party seeking an injunction must prove
his right to the injunction. Lewis v. Hanson (1951), 124 Mont.
492, 227 P.2d 70. The record clearly demonstrates that the State
9
provided more than the contractually required amount of time for
interested persons to make a claim upon the improvements and remove
the same. We conclude that the plaintiffs failed to prove their
right to an injunction.
We hold the District Court did not abuse its discretion in
denying the issuance of an injunction to stop the State of Montana
from re-leasing its land.
III
Did the District Court err in granting summary judgment on the
Joneses' and D. Walker's quantum meruit claim?
The Joneses and D. Walker argue that the State has been
unjustly enriched at their expense because of the improvements
remaining on the leased land and they are, therefore, entitled to
restitution by virtue of the theory of quantum meruit. Further,
appellants contend that the State has a statutory duty to ensure
that the new lessees of the property compensate the parties whose
money went to create the improvements to the land. Appellants
claim that the State received the benefit of $16,547.99 for
improvements directly and also is receiving $28,200 for the same
leased property which DSL leased to M & W for $3,000.
Unjust enrichment is an equitable doctrine wherein the
plaintiff must show some element of misconduct or fault on the part
of the defendant or that defendant somehow took advantage of the
plaintiff. Randolph v. Peterson, Inc. v. J.R. Simplot (19S9), 239
Mont. 1, 778 P.2d 879.
The District Court granted summary judgment to the State
10
because it found no element of fraud or misconduct on the part of
the State. Following a careful review of the record, we do not
find any indication of misconduct or fault on the part of the
state. Appellants' bald assertions create no genuine issues of
material fact. The State is entitled to summary judgment as a
matter of law. We hold that the District Court did not err in
granting summary judgment to the State on the Joneses' and D.
Walker's quantum meruit claim.
Affirmed.
We Concur: /
11
November 7, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
,
Eula Compton
Attorney At Law
?26 E. Spruce
Missoula MT 59802
John H. Tarlow
LANDOE, BROWN, PLANALP and BRAAKSMA, P.C.
Box One
Bozeman MT 59715
Roy H. Andes
Montana Department of State Lands
1625 Eleventh Avenue
Helena MT 59620
ED SMITH
CLERK OF THE! SUPREME COURT
STATE OF MONTANA