Carelli v. Hall

No. 95-465
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

STANLEY E. HALL, GREGORY L.
STIRES, and DALE P. STIRES, : i 6~ -'
.!' ,.,.:!ILj&$
ii..i.r:i, ::;I- !<@!::!;~p$~E cogRy
Defendants and Appellants. *(?rn?cn k? '"'QJ'r&&

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Michael K. Rapkoch; Felt, Martin , Frazier &
Nelson, Billings, Montana
For Respondent:
Rienne H. McElyea; Berg, Lilly, Andriolo &
Tollefsen, Bozeman, Montana

Submitted on Briefs: June 27, 1996
Decided: November 14, 1996
Filed:

IJ
Clerk
Justice Karla M. Gray delivered the Opinion of the Court

Gregory and Dale Stires appeal from the judgment of the
Eighteenth Judicial District Court, Gallatin County, awarding
Martin Carelli $77,381.08 in damages, costs and attorney's fees in
his action on a promissory note and from the underlying order
denying their motion for summary judgment. We reverse and remand.
The dispositive issue on appeal is whether the District Court
erred in denying Gregory and Dale Stires' motion for summary
judgment.
Factual Background
Gregory and Dale Stires (collectively, Stires) and Stanley
Hall (Hall) owned and operated the Elk Valley Game Ranch (Game
Ranch) as partners beginning in 1986. The partnership originally
was formed pursuant to an oral agreement; however, Stires and Hall
executed a written partnership agreement with regard to the Game
Ranch in 1987.
In June of 1986, Hall purchased thirty-eight head of elk from
Martin Carelli (Carelli). He signed a promissory note agreeing to
pay Carelli $36,000 by December 20, 1986, for the elk. The
promissory note refers solely to Hall as the purchaser and contains
no reference to Stires or the Game Ranch. Hall also signed a
security agreement covering the elk purchased from Carelli. The
security agreement names, and is signed by, Hall as the debtor; it
reflects that the elk will be kept at the Game Ranch and will be
used for business purposes. Finally, Carelli and Hall signed, and
Carelli filed, a Uniform Commercial Code (UCC) financing statement
identifying Hall as the debtor and the elk as the collateral.
Stires and Hall dissolved their partnership in 1988. Pursuant
to the partnership dissolution agreement, Stires would continue to
operate the Game Ranch. The dissolution agreement listed the
partnership debt and divided it between Stires and Hall. The debt
attributable to the promissory note executed by Hal -1 in Care11.i's
favor was not listed.
Procedural History
After Hall failed to pay Carelli pursuant to the promissory
note, Carelli sued Hall for the principal and interest owing on the
note, together with costs and attorney's fees. Hall answered,
denying liability on the promissory note. He also filed a third-
party complaint against Stires alleging that, pursuant to the
partnership dissolution agreement, Stires was obligated to pay
Carelli the debt evidenced by the promissory note. In response to
Hall's third-party complaint, Stires denied liability for the debt,
arguing that the debt evidenced by the promissory note was Hall's
personal obligation and, therefore, Stires could not be held liable
for it.
Stires attempted to depose Hall on three occasions. The first
two dates were rescheduled and Hall failed to appear for the third.
Thereafter, Carelli moved for summary judgment against Hall
pursuant to Rule 56(c), M.R.Civ.P., as well as for entry of
judgment in his favor against Hall as a Rule 37 sanction for Hall's
failure to appear at the depositions. Stires also moved for Rule

3
37 sanctions against Hall, requesting the court to dismiss Hall's
third-party complaint.
The District Court concluded that no genuine issues of
material fact existed regarding Hall's liability on the promissory
note and granted summary judgment in favor of Carelli. In
addition, the court granted Rule 37 sanctions against Hall in favor
of both Carelli and Stires and, accordingly, entered judgment
against Hall in Carelli's favor and dismissed Hall's third-party
complaint against Stires. The District Court then permitted
Carelli to amend his complaint, pursuant to Rule 15, M.R.Civ.P., to
assert a claim against Stires for liability on the debt evidenced
by the promissory note Hall executed. Stires answered, denying
liability on the note, and both Stires and Carelli conducted
discovery.
Stires subsequently moved for summary judgment against
Carelli, arguing that the promissory note, security agreement and
financing statement clearly and unambiguously identified Hall as
the sole debtor on the note. Thus, according to Stires, no genuine
issues of material fact existed regarding whether Stires was a
debtor liable on the note and Stires was entitled to judgment as a
matter of law under UCC, contract and partnership principles.
Carelli opposed Stires' motion. After oral argument on
Stires' summary judgment motion, the District Court determined that
genuine issues of material fact existed and Stires was not entitled
to judgment as a matter of law. It provided no further explanation
or analysis of its denial of the motion.

4
 Following a bench trial, the District Court entered findings
of fact and conclusions of law determining that Hall was authorized

to--and did, in fact--purchase the elk on behalf of the partnership

and, therefore, that Stires was liable on the promissory note. The

court entered judgment accordingly and Stires appeals.

Did the District Court err in denying Stires' motion for
summary judgment?

Summary judgment is proper when no genuine issues of material

fact exist and the moving party is entitled to judgment as a matter
of law. Rule 56(c), M.R.Civ.P. We review a district court's grant

or denial of a motion for summary judgment de nova, applying the

same Rule 56(c), M.R.Civ.P., criteria used by that court. Johnson

v. Nyhart (1995), 269 Mont. 379, 384, 889 P.Zd 1170, 1173 (citation

omitted).

The moving party has the initial burden of establishing the

absence of genuine issues of material fact and entitlement to

judgment as a matter of law. Brinkman & Lenon v. P & D Land

Enters. (1994), 263 Mont. 238, 241, 867 P.2d 1112, 1115. Only

where the moving party satisfies its initial burden does the burden

shift to the party opposing summary judgment to present evidence

raising a genuine issue of material fact. Matter of Estate of Lien

(1995), 270 Mont. 295, 298, 892 P.Zd 530, 532 (citing Owen v.

Ostrum (1993), 259 Mont. 249, 255-56, 855 P.2d 1015, 1019). The

nonmoving party may not rest upon the allegations in the pleadings

or on speculative or conclusory statements. Estate of Lien, 892

P.2d at 532 (citing Simmons v. Jenkins (1988), 230 Mont. 429, 432,

5
750 P.2d 1067, 1069). Moreover, only admissible evidence can be
considered in determining whether genuine issues of material fact
exist. See Treutel v. Jacobs (1990), 240 Mont. 405, 408, 784 P.2d
915, 917.
"Material issues of fact are identified by looking to the
substantive law governing the proceedings." Estate of Lien, 892
P.2d at 532 (citation omitted). Here, Carelli and Stires agree
that the UCC is the primary source of law applicable in this case
because the sale of elk at issue here is a sale of "goods" under §
30-2-105(l), MCA (1985), and, additionally, that the promissory
note is an "instrument" as defined in §§ 30-3-102 and 30-3-104, MCA
(1985). They also agree that contract and partnership principles
apply only secondarily.
The central issue in this case is whether Stires is liable on
the debt evidenced by the promissory note and security agreement
for the purchase of the elk executed by Hall in Carelli's favor.
Stated differently, the issue is whether Hall bound the Game Ranch
partnership and, as a result, Stires, when he executed the note and
security agreement. In support of his motion for summary judgment,
Stires relies on the promissory note and the related security
agreement, both executed solely by Hall and identifying only Hall
as the debtor. Stires contends that they clearly and unambiguously
establish, via their express terms, that Hall is the sole person
liable for the debt evidenced by the promissory note.
The note specifically provides that "the undersigned promises
to pay . . MARTIN CARELLI . the sum of Thirty-six Thousand

6
and no/100 ($36,000.00) Dollars on or before the 20th day of
December, 1986. . . .I' for the thirty-eight head of elk. Hall is
the sole signatory of the note and neither the Game Ranch nor
Stires is referenced in any way. Thus, the promissory note clearly
establishes that Hall is the person liable for the promise to pay
contained therein.
In addition, § 30-3-401(l), MCA (1985), expressly provides
that "[nlo person is liable on an instrument unless his signature
appears thereon." Because neither Stires nor the Game Ranch is
identified in the note and Stires' signature is not contained
therein, Stires is not liable on the instrument.
We conclude that, as the party moving for summary judgment,
Stires met the initial burden of establishing the absence of
genuine issues of material fact regarding Stires' liability on the
promissory note executed by Hall and entitlement to judgment as a
matter of law. The burden then shifted to Carelli to present
affirmative evidence of a material and substantial nature raising
genuine issues of material fact regarding Stires' liability; he
could not rest on the allegations in his pleadings or on conclusory
or speculative statements. & Estate of Lien, 892 P.2d at 532.
Carelli's argument that Stires is liable for the debt
evidenced by the promissory note executed by Hall is based on the
UCC and contract and partnership law. Conceding that the
promissory note is clear and identifies Hall as the sole debtor,
Carelli nonetheless argues that his deposition establishes the
existence of a genuine issue of material fact regarding whether

7
Hall signed the promissory note on behalf of the Game Ranch and

that the District Court properly determined that this factual issue
precluded summary judgment. Specifically, he relies on his
deposition testimony that, in negotiating for the purchase of the
elk, Hall represented to him that Hall was purchasing the elk on
behalf of the Game Ranch and that the partnership and, more
specifically, Stires, would pay the debt.
Carelli concedes that parol evidence is inadmissible to alter
the express and unambiguous terms of a written agreement. He also
implicitly recognizes that Hall's alleged representations could be
considered in the summary judgment context only if they would be
admissible into evidence at trial. See Treutel, 784 P.2d at 917.
Carelli advances alternative arguments under which Hall's alleged
representations that he signed the promissory note in a
representative capacity--that is, on behalf of the Game Ranch--
constitute admissible evidence properly considered by the District
Court in denying Stires' motion for summary judgment. His
arguments in this regard are premised on his contention that
reference to the Game Ranch in the security agreement creates an
ambiguity as to the identity of the debtor on the promissory note.
Extrinsic evidence of contemporaneous or prior oral agreements
which contradicts the express terms of a written agreement is
admissible where the written agreement is ambiguous. See Haggerty
v. Gallatin County (1986), 221 Mont. 109, 117, 717 P.2d 550, 555.
Whether an ambiguity exists is a question of law. See Klawitter v.
Dettmann (19941, 268 Mont. 275, 281, 886 P.2d 416, 420; Weldon v.

8
Montana Bank (1994), 268 Mont. 88, 93, 885 P.2d 511, 514. Where
the language of an agreement is clear and unambiguous and, as a
result, susceptible to only one interpretation, the duty of the
court is to apply the language as written. Audit Services, Inc. v.
Systad (1992), 252 Mont. 62, 65, 826 P.2d 549, 551 (citation
omitted). An ambiguity exists, however, when a contract is subject
to two different interpretations; under such a circumstance, parol
evidence can be used to determine the parties' intent. Audit
Services, 826 P.2d at 551; see also Morning Star Enters. v. R.H.
Grover (1991), 247 Mont. 105, 111, 805 P.2d 553, 557.
As discussed above, the promissory note identifies Hall as the
sole debtor. It also states that " [tlhis note is in conjunction
with that certain Security Agreement bearing date of June 30, 1986,
covering 38 head of elk." The security agreement, like the
promissory note, designates Hall as the debtor and is signed only
by Hall. It further provides that the elk will be used for
business purposes and kept at the Game Ranch. The security
agreement does not refer to Stires or indicate in any manner that
Hall signed in a representative capacity on behalf of the Game
Ranch.
The promissory note and security agreement are susceptible to
only one interpretation with regard to the identity of the debtor
liable on the note. The promissory note expressly states that Hall
is the person responsible for paying the obligation owed for the
sale of the elk. Moreover, the security agreement expressly
designates Hall as the debtor. Thus, because Hall is "the person

9
who owes payment . . of the obligation secured," he is the
"debtor" as that term is used in the Secured Transactions chapter
of the UCC. & § 30-P-105(1) cd), MCA (1985). The reference to
the Game Ranch in the security agreement does not render ambiguous
the plain language of the note and the security agreement
identifying Hall as the debtor.
Carelli also argues that § 30-3-403(l), MCA (1991), permits
extrinsic evidence that Hall was acting on behalf of the Game Ranch
in signing the promissory note. Recognizing that the 1985 version
of § 30-3-403(l), MCA, was in effect at the time of the transaction
at issue, Carelli argues that the 1991 amendment to § 30-3-403,
MCA, was merely procedural and, as a result, properly can be
applied retroactively. Stires contends, on the other hand, that
the 1991 amendment was substantive and cannot be applied
retroactively.
As a general rule, statutes cannot be applied retroactively
unless expressly so declared by the Montana legislature. Section
l-2-109, MCA. A statute does not operate retroactively merely
because it is applied to conduct occurring prior to its enactment.
Porter v. Galarneau (1996), 275 Mont. 174, 183, 911 P.2d 1143, 1148
(citation omitted). A retroactive law is
one which takes away or impairs vested rights acquired
under existing laws or creates a new obligation, imposes
a new duty, attaches a new disability in respect to
transactions already passed, or gives a transaction a
different legal effect from that which it had when it
occurred.
Porter, 911 P.2d at 1150 (citations omitted).

10
 In order to determine whether the 1991 amendments to $j 30-3-
403, MCA, were substantive, so as to constitute a retroactive law
if applied to the promissory note at issue here, it is necessary to
examine several related statutes from both the 1985 and 1991
versions of Montana's UCC. As noted above, 5 30-3-401(l), MCA
(1985), expressly provides that "[nlo person is liable on an
instrument unless his signature appears thereon." A signature may
be made by an agent or other representative, and the
representative's authority to make that signature may be
established "as in other cases of representation." Section 30-3-
403(l), MCA (1985). Conversely, where an authorized representative
signs his own name to an instrument, the representative--rather
than the represented person--is personally obligated unless the
instrument either names the person represented or shows that the
representative signed in a representative capacity. Section 30-3-
403(2) (a), MCA (1985).
Here, it is clear that neither Stires' nor the Game Ranch's
signature appears on the promissory note executed by Hall in
Carelli's favor. Thus, pursuant to § 30-3-401(l), MCA (1985),
Stires is not liable on the note. Since Stires' signature does not
appear, subsection (1) of § 30-3-403, MCA (1985), cannot be used to
establish that Hall had authority to make the signature. Moreover,
even if Hall were authorized to sign instruments on behalf of
Stires or the Game Ranch, he would remain personally--and solely--
liable on the promissory note to Carelli under § 30-3-403(2) (a),
MCA (1985), because the note neither names the person represented

11
nor indicates that Hall signed in a representative capacity. Thus,
under the 1985 versions of 55 30-3-401 and 30-3-403, MCA, Stires is
not liable on the promissory note as a matter of law.
The 1991 versions of these two statutes are significantly
different. Under § 30-3-401, MCA (1991), a person can be liable on
an instrument, even absent that person's signature, if the person
"is represented by an agent or representative who signed the
instrument and the signature is binding on the represented person
under 30-3-403." Section 30-3-403(l), MCA (1991), provides that,
"[il f a person acting, or purporting to act, as a representative

signs an instrument by signing . . . the name of the signer," the
represented person can be bound by--and liable under--the signature
under certain circumstances, "whether or not identified in the
instrument." (Emphasis added.)
Thus, under the 1991 version of the UCC, if Hall acted or
"purported to act" on behalf of the Game Ranch partnership and
Stires in executing the promissory note to Carelli, Stires
potentially could be liable for the debt underlying the note.
Carelli argues that Hall's alleged representations that he was
acting on behalf of the Game Ranch and Stires in executing the note
are admissible under § 30-3-403(l), MCA (1991), as evidence that
Hall was so acting and purporting to act.
The 1991 amendment to 5 30-3-403, MCA, provides for potential
liability of represented persons which did not exist under the 1985
version of the statute. If applied here, 5 30-3-403(l), MCA
(19911, could impose a new obligation on Stires with regard to a

12
transaction already passed. Thus, the 1991 amendment is
substantive and cannot be applied retroactively unless expressly
declared retroactive by the legislature. See § l-2-109, MCA;
Porter, 911 P.2d at 1150. Section 30-3-403, MCA (19911, does not
contain an express declaration that the legislature intended it to
apply to transactions already passed. Accordingly, we conclude
that § 30-3-403(l), MCA (1991), is not applicable in this case and,
as a result, Hall's alleged representations to Carelli that he
purchased the elk on behalf of the Game Ranch and that Stires would
pay the debt are not admissible thereunder.
Notwithstanding his argument above that the 1991 version of §
30-3-403(l), M C applies in this case,
A , Carelli relies on cases
interpreting the 1983 and 1985 versions of § 30-3-403(2) (b), MCA,
in support of his argument that parol evidence is admissible here
to prove Hall signed the promissory note on behalf of the Game
Ranch partnership. The 1983 and 1985 versions of § 30-3-403, MCA,
are identical; accordingly, we refer only to 5 30-3-403, MCA
(1985), in discussing the cases on which Carelli relies.
Carelli argues that Clarks Fork Nat'1 Bank v. Papp (1985), 215
Mont. 494, 698 P.2d 851, and Accounts Management Corp. v. Lyman
Ranch (1987), 230 Mont. 35, 748 P.2d 919, are factually similar to
the present case and support the admissibility of his deposition
testimony regarding Hall's alleged representations as evidence. In
both Clarks Fork Nat'1 Bank and Accounts Manaqement Corp., we
concluded that parol evidence was admissible to determine whether
the promissory notes at issue were signed in a representative or

13
individual capacity under § 30-3-403(2), MCA (19851, which provides
in relevant part:
An authorized representative who signs his own name to an
instrument:
ibj except as otherwise established between the immediate
parties, is personally obligated if the instrument names
the person represented but does not show that the
representative signed in a representative capacity.

(Emphasis added). Under this statute, where an instrument names
the represented party but the representative does not indicate that
he or she signed in a representative capacity, parol evidence is
admissible to determine the actual agreement between the immediate
parties to the instrument regarding liability on the instrument.
See Clarks Fork Nat'1 Bank, 698 P.2d at 853; Accounts Manaqement
,ore.
C 748 P.2d at 922-23.
Clarks Fork Nat'1 Bank involved a promissory note executed in
favor of Clarks Fork National Bank (Clarks Fork) which identified
the debtors as "'Papp, Ellak and Violet dba Papp Landscaping Co.'"
The note was signed by Ellak and Violet Papp without any further
reference to Papp Landscaping Co. Clarks Fork Nat'1 Bank, 698 P.2d
at 852. Clarks Fork sued Ellak and Violet Papp (the Papps) for the
debt evidenced by the note, contending that the note was their

personal obligation. The Papps asserted, however, that they had
executed the note in their corporate capacities. The district
court granted Clarks Fork's motion for summary judgment, holding
the Papps personally liable for the debt evidenced by the
promissory note. Clarks Fork Nat'1 Bank, 698 P.2d at 852.

14
 On appeal, Clarks Fork argued that the promissory note was
unambiguous and, as a result, evidence could not be presented to
vary the terms of the note. We agreed that parol evidence
generally is inadmissible unless the note is ambiguous or
uncertain. Clarks Fork Nat'1 Bank, 698 P.2d at 853. We concluded,
however, that § 30-3-403(2) (b), MCA (1985), specifically allowed
proof beyond the provisions of the note because the language of the
note itself--that is, the reference to both the Papps and Papp
Landscaping as the borrowers--suggested that the Papps and Clarks
Fork, as the immediate parties to the note, "may have 'otherwise
established' as provided in I§ 30-3-403(2) (b), MCA (1985)l.fl
Accordingly, we reversed the summary judgment against the Papps and
remanded for the district court's consideration of parol evidence
to determine what the Papps and Clarks Fork intended. Clarks Fork
Nat'1 Bank, 698 P.2d at 853-54.
In Accounts Manaqement Coru., Lyman Ranch had borrowed a
considerable amount of money from Farmers Union Oil (Farmers), but
failed to repay it. Howard Lyman (Lyman) executed a promissory
note for the benefit of Farmers to cover the delinquent debt.
Accounts Manaqement Coru., 748 P.2d at 920-21. The top part of the
promissory note commemorated the debt owed by Lyman Ranch to
Farmers and was signed by Lyman on behalf of Lyman Ranch. The
bottom part of the note contained an unconditional promise to repay
the debt, did not identify the debtor and was signed by Lyman in
his individual capacity. Accounts Management Cork., 748 P.2d at
921.

15
 Farmers sued Lyman in his individual capacity, as the
signatory of the note, and Lyman Ranch. Lyman Ranch admitted
liability for the debt, but Lyman denied personal liability. Prior
to trial, Farmers assigned its rights against Lyman and Lyman Ranch
to Accounts Management. The district court concluded that the
bottom portion of the promissory note contained an unambiguous,
unconditional promise by Lyman to repay the debt and, accordingly,
entered judgment against Lyman individually. Accounts Manaqement
Core., 748 P.2d at 922.
We determined on appeal that, as Farmers' assignee, Accounts
Management stepped into Farmers' shoes and was considered an
immediate party to the promissory note for purposes of the first
requirement under § 30-3-403(2) (b), MCA (1985). See Accounts
Management Corv., 748 P.2d at 922-23. Additionally, since the
promissory note named Lyman Ranch as the debtor but failed to show
that Lyman signed in a representative capacity, the second
requirement of § 30-3-403(2) (b), MCA (1985), was satisfied.
Accounts Management Core., 748 P.2d at 923. We concluded,
therefore, that "by statute, as between the immediate parties, the
[promissory note] creates an ambiguity in regard to the second
signature." Accounts Management Corp., 748 P.2d at 922.
Under those circumstances, and relying on Clarks Fork Nat'1
Bank, we concluded that the issue of who was obligated on the note
was a question of fact for the trier of fact. Accounts Manaqement
Core., 748 P.2d at 923. For purposes of resolving that issue, we
concluded that 5 30-3-403(2) (b), MCA (1985), allows parol evidence

16
in litigation between the immediate parties to prove that the
signature was, or was not, in a representative capacity. Accounts
Manaqement Corn., 148 P.2d at 923.
Thus, Clarks Fork Nat'1 Bank and Accounts Manaqement Corp.
share the same dispositive facts with regard to the admissibility
of parol evidence under 5 30-3-403(2) (b), MCA (1985). First, the
litigation in both cases was between the immediate parties to the
promissory note. Second, in both cases the promissory note
referenced the corporate entity in identifying the debtors, but
contained a signature which did not indicate that the signatory
signed in a representative capacity. Those facts fell squarely
within the purview of § 30-3-403(2) (b), MCA (1985), and, therefore,
we concluded that parol evidence was admissible to determine
whether the notes were signed in an individual or representative
capacity. See Clarks Fork Nat'1 Bank, 698 P.2d at 853; Accounts
Management Coru., 748 P.2d at 923.
The present case is factually distinguishable from both Clarks
Fork Nat'1 Bank and Accounts Manaqement Corp.. Here, the
litigation is not between the immediate parties to the promissory
note. The promissory note was executed by Hall in Carelli's favor
and they were the immediate parties to the note; Stires was not a
party to the transaction. Moreover, the promissory note does not
refer to the Game Ranch or Stires in any way. Unlike in Clarks
Fork Nat'1 Bank and Accounts Manaqement Corp., the facts in the
present case do not fall within the purview of § 30-3-403(2) (b),
MCA (1985). Thus, Clarks Fork Nat'1 Bank and Accounts Manaaement

17
Core. do not support Carelli's argument that par01 evidence is
admissible here.
Finally, Carelli argues that Stires is liable for the debt
evidenced by the promissory note executed by Hall in Carelli's
favor because Stires accepted the benefit of the transaction
between himself and Hall. In other words, Carelli argues that
Stires ratified Hall's purchase of the elk on behalf of the Game
Ranch, even if Hall did not have authority to bind the Game Ranch
partnership, because Stires accepted the elk at issue and used them
for business purposes. In this regard, he contends that the
reference to the Game Ranch in the security agreement "created a
strong, if not absolute, probability that the elk were kept on the
partnership property and used for hunting purposes." He argues
that his deposition testimony regarding his visits to the Game
Ranch created a genuine issue of material fact as to whether the
Game Ranch had possession of the elk.
Review of Carelli's deposition testimony reflects that Carelli
did not offer any evidence establishing that Stires took possession
of the elk. Carelli did not state with certainty that any of the
elk purchased by Hall were located at the Game Ranch or received by
Stires. In fact, Carelli testified that he had visited the Game
Ranch, but that he did not get close enough to the elk to
positively identify any of them as the elk he sold to Hall.
Carelli's argument that Stires is liable on the note due to
possession of the elk is entirely speculative and, therefore, is

18
insufficient to raise genuine issues of material fact precluding
summary judgment. See Estate of Lien, 892 P.2d at 532.
We conclude that Carelli failed to meet his burden on summary
judgment of presenting admissible evidence raising a genuine issue
of material fact regarding Stires' liability for the debt evidenced
by the promissory note. On that basis, we further conclude that
Stires was entitled to judgment as a matter of law. Accordingly,
we hold that the District Court erred in denying Stires' motion for
summary judgment.
Reversed and remanded for entry of summary judgment in favor
of Stires

Justices

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