MEECH v CURE
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No. 12638 I N T E SUPREME C U T O THE STATE O M N A A H OR F F OTN 1974 DONALD K. MEECH, d/b/a MEECH REALTY, P l a i n t i f f and Appellant, ORIN R. CURE, Executor of t h e E s t a t e of CHRIS G. MAYER, Deceased, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t , Honorable R. W. Thomas, Judge p r e s i d i n g . Counsel of Record : For Appellant : J a r d i n e , Stephenson, B l e w e t t & Weaver, Great F a l l s , Montana Alex B l e w e t t argued and Jack L. Lewis argued, Great F a l l s , Montana For Respondent : Cure and Borer, Great F a l l s , Montana Edward W. Borer, appeared, Great F a l l s , Montana Swanberg, Koby, Swanberg and Matteucci, Great F a l l s , Montana Raymond F. Koby argued, Great F a l l s , Montana * Submitted: Decided :q Filed : 4 4 1 1 Clerk June 14, 1974 u~ 2 I974 Mr. Justice John Conway H a r r i s o n d e l i v e r e d t h e Opinion o f t h e Court. P l a i n t i f f appeals from a summary judgment granted by t h e d i s t r i c t c o u r t o f B l a i n e County i n f a v o r of defendant. I n February 1973 defendant O r i n R. Cure, as executor o f t h e e s t a t e o f C h r i s G. Mayer, deceased, f i l e d a r e t u r n o f s a l e and a motion f o r an o r d e r c o n f i r m i n g s a l e o f r e a l e s t a t e made under a power o f s a l e contained i n t h e w i l l o f Chris G. Mayer. Two p a r c e l s o f l a n d were involved, one l o c a t e d i n L i b e r t y County, the second l o c a t e d i n B l a i n e and Chouteau Counties. The r e t u r n of s a l e r e c i t e d t h a t t h e L i b e r t y County l a n d had been s o l d t o Ralph I. Schanbacher, Burton 0. C r o f t and Ray Delaney f o r $467,700, mation o f t h e c o u r t . subject t o confir- The r e t u r n noted t h a t these purchasers had been obtained by Donald K. Meech, a l i c e n s e d r e a l e s t a t e broker. I t a l s o noted t h a t Execu- t o r Cure had agreed t h a t i f t h e purchaser procured by t h e broker made t h e h i g h e s t and b e s t o f f e r t h a t Cure would recomnend t o t h e c o u r t and request t h a t t h e c o u r t a l l o w such broker a $23,000 c o m i s s i o n f o r o b t a i n i n g a purchaser. A t t h e hearing on the r e t u r n o f s a l e o f t h e L i b e r t y County l a n d a f t e r considerable b i d d i n g by numerous p a r t i e s , t h e p r o p e r t y was s o l d t o t h e h i g h e s t bidder, Walter Passage Farms, I n c . f o r t h e sum o f $520,000. The c o u r t accepted t h e h i g h e s t b i d and d i d n o t award any b r o k e r ' s commission. Thus, any commission f o r a sale, if any was owed, d i d n o t mature. P l a i n t i f f ' s p r o s p e c t i v e buyers d i d n o t buy. The executor's r e t u r n of s a l e as t o t h e B l a i n e County l a n d d i s c l o s e d t h a t a s a l e of t h e l a n d had been made by t h e executor, s u b j e c t t o c o n f i r m a t i o n , t o Charles Hodson and John M i t c h e l l f o r $958,000. The r e t u r n noted t h a t no r e a l e s t a t e broker was i n v o l v e d i n t h e B l a i n e County p r o p e r t y s a l e and d i d n o t request t h e payment o f any b r o k e r ' s commission. As was t h e case i n L i b e r t y County t h e b i d d i n g on the B l a i n e County p r o p e r t y was l i v e l y . This p r o p e r t y was b i d i n by M i t c h e l l and Hodson f o r $958,000 and Cure requested t h e c o u r t t o c o n f i r m t h e s a l e . However, a t t h e confirmation hearing a w r i t t e n b i d t e n percent i n excess of t h e $958,000 was o f f e r e d and t h e c o u r t opened t h e s a l e t o f u r t h e r b i d d i n g . Ultimately the Blaine County property was sold t o Mr. Schanbacher and Mr. Croft f o r $1,110,000. N real e s t a t e broker was involved in this property; although the same o persons were the prospective buyers on the Liberty property. Prior t o the death of Chris Mayer he had l i s t e d his Blaine County property f o r s a l e w i t h the Flynn Realty of Havre, Montana. Meech was con- tacted by Flynn and given an opportunity t o find a purchaser and one of such persons contacted was Schanbacher, who became interested in purchasing t h a t property. Following the death of Chris Mayer executor Cure, a f t e r being made aware of p l a i n t i f f ' s e f f o r t s , agreed t h a t i f a purchaser procured by p l a i n t i f f made the highest and best o f f e r f o r the property then Cure would p e t i t i o n and request t h e court t o allow a real e s t a t e commission of 5%. The i n s t a n t action was brought by Aronow, Anderson & Beatty of She1 by, Montana on behalf of p l a i n t i f f Meech some four months a f t e r the s a l e occurred and the comnission was refused. After summary judgment was granted defendant, p l a i n t i f f substituted the 1aw firm of Jardine, Stephenson, Blewett and Weaver of Great Falls i n his behalf, and a f t e r various motions including a motion f o r r e l i e f from summary judgment, which was denied, t h i s appeal was taken. Several issues a r e brought by p l a i n t i f f on appeal which we will sumnarize in t h i s manner: 1 . Was summary judgment improperly taken considering the s t a t e of t h e pleadings? 2. Does the s t a t u t e of frauds bar a claim f o r a commission under the f a c t s ? The l i s t i n g agreement re1 ied on by p l a i n t i f f runs from t h e decedent t o the Flynn Realty of Havre, Montana. P l a i n t i f f knew t h a t only the Blaine County land was l i s t e d on said agreement and i n h i s a f f i d a v i t in support of a motion f o r re1 i e f from summary judgment he s t a t e d t h a t ''Mr. Cure took t h e position t h a t a l l r i g h t s which your a f f i a n t may have acquired under said 1 i s t i n g agreement Brminated upon t h e death of Mr. Mayer * * *. " Therefore, p l a i n t i f f knew when he f i l e d h i s complaint the terms of the agreement and was aware t h a t Cure contended there were no enforceable r i g h t s thereunder. In addition, a t the hearing on the motion f o r summary judgment p l a i n t i f f ' s counsel s t i p u l a t e d i n open court t h a t there was no written agreement t o pay a real e s t a t e commission. While p l a i n t i f f s e t s f o r t h several contentions as issues we bel i e v e the question of whether o r not summary judgment was proper will answer the contentions. In regard t o the granting of summary judgments i t has long been established i n Montana t h a t the moving party has the burden of establishing t h a t there is no genuine issue of f a c t t o be resolved before such summary judgment will be granted. However, when the record discloses no issue as a material f a c t , then the burden i s on the party opposing the motion t o present evidence of a material and substantial nature raising a genuine f a c t . Mustang Beverage Co. v . Scttlitz Brewing Co., 162 Mont. 243, 511 P.2d 1 , 30 St.Rep. 565; Pack River Co. v. Young, 162 Mont. 271, 511 P.2d 12, 30 St.Rep. 625. Here, p l a i n t i f f a t no time prior t o summary judgment questioned t h a t the case was not ready f o r summary judgment. Then, a f t e r adverse t r i a l court determination, sought re1 i e f without new f a c t s o r amended pleadings . As noted by defendant i n his b r i e f , p l a i n t i f f claims e r r o r , s o l i c i t s reversal through legal speculation on a ''multiple choice basis" as t o the sufficiency of h i s I1theories of re1 i e f " . The only new matter suggested t o the court f o r i t s consideration was the l i s t i n g agreement between Chris Mayer and the Flynn Realty Co. which a1 1 p a r t i e s recognized as having expired with the death of Chris Mayer. Section 2-305, R.C.M. 1947. Trenouth v. Mulroney, 124 Mont. 499, 227 P .2d590; 28 ALR2d 1243, 2 C. 3 . S. Agency ~ 7 3 Am J u r 2d Agency A ; SS 60-67. W will not f u r t h e r discuss the various legal theories propounded by e p l a i n t i f f t o take his case out of sumnary judgment, other than t o add t h a t we find no e r r o r on the part of the t r i a l court. The court had before i t the only s i g n i f i c a n t issue raised by the pleadings or available t o the p l a i n t i f f a t the time of the summary judgment which was: Whether defendant was l i a b l e t o pay t h e p l a i n t i f f a commission absent a written agreement t o pay such a commission. The law i s c l e a r on t h i s point. B s t a t u t e , a broker y may not c o l l e c t a r e a l t o r ' s commission absent a valid written agreement. In addition, p l a i n t i f f did not even claim defendant agreed t o pay a comission b u t he premised h i s allegation on the statement of defendant t h a t he would "petition the court''. Clearly p l a i n t i f f had no case and sumnary judgment was properly granted. Judgment i s affirmed . A James T. Harrison. Justices
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