MASSAR CATTLE CO INC v REESE

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No. 84-471 IN THE SUPREME COURT OF THE STATE OF XONTANA 1985 MaSSAR CATTLE CO., INC., FRED W. MASSAR, et al., Plaintiffs and Respondents, DONALD REESE, D.J. REESE, PATRICIA and MELLISH PALLAS, et al., Defendants and Appellants. APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Madison, The Honorable Frank Davis, Judge presiding. COUNSEL OF FtECOXD: For Appellants: David L. Holland, Butte, Montana Max Hansen, Dillon, Montana For Respondents: Schulz, Davis & Warren, Dillon, Montana Submitted on Briefs: April 4, 1985 Decided: Filed: J!/!d \1'pj8fj 7- Clerk 2, 1985 Mr. Justice John C. Court. Sheehy delivered the Opinion of the Appeal by the appellants from a summary judgment entered against them in the District Court, Fifth Judicial District, &?adison County. On be affirm. 7 September 28, 1979, Massar Cattle Co., Inc. and Donald and D. J. Reese entered into a contract for deed wherein Massar agreed to sell and Reese agreed to buy certain ranching property located in Madison County, Montana. The terms of the agreement provided for a purchase price of $420,000 to be paid as follows: $15,000 upon execution of the agreement, $15,000 on October 15, 1979, $20,000 on April 1, 1980, $50,000 on September 30, 1980 and an $8,000 interest payment on April I., 1981. The above sums were to comprise a $100,000 downpayment plus interest. The $320,000 balance of the purchase price was to be paid in annual installments of $33,907.20 due on September 30 of each year for the years 1981 through 1988. The entire unpaid balance of the principal and interest due under the contract was to be paid on September 30, 1989. Interest was assessed at 9$% per annum on the unpaid balance starting on September 30, 1980. Reese paid the first two installments of $15,000 on the downpayment then on May 28, 1980 assigned his interest in the contract to Patricia Ann Pallas. Massar consented to the assignment. the Mrs. Pallas entered land and making payments under the contract to Massar. all the remaining payments necessary to commenced Pallas made satisfy the downpayment plus the 1981 and 1982 annual installments of $33,907.20. Pallas failed to make the September 30, 1983 payment under the contract. Massar mailed a notice of default to Pallas on October 4, 1983. Pallas Massar failed within the to tender the overdue 60-day grace period default clause of the contract. installment to set forth in the The "default clause" in essence provided that Massar would have the option of obtaining a quit claim deed from Reese (1) (assignee Pallas); being relieved of any further obligation under the contract; retaining all payments as rents or liquidated damages; and requiring Reese (Pallas) to vacate the land and disclaim any interest therein; or (2) Zeclare the entire sum due and payable and seek any appropriate legal remedy. When Pallas failed to comply with the above provision, forfeit her interest, and vacate the premises, Massar filed suit on March 6, 1984. The suit prayed that Pallas' interest in the contract be terminated, her payments forfeited, and that all title and right to and possession of the property be returned to Massar. March Pallas filed a motion to dismiss on 28, 1984 but did not file an answer to the Massar complaint. Massar served combined interrogatories requests for admissions on Pallas on April 9, 1984. did not answer them. judgment and and Pallas Thereafter, Massar moved for summary a hearing was set for June 5, 1984. The District Court granted plaintiff Massar's motion for summary judgment on June 5, 1984, but later on June 12, 1984 the court vacated its order of summary judgment and set a new hearing for July 3, 1984. At the July 3, 1984 hearing to consider plaintiffs' motion for summary judgment the District Court allowed defendant Pallas to testify. Based on her testimony and the unanswered interrogatories and requests for admissions which were deemed admitted, the District Court on July 6, 1984 granted plaintiffs' motion for summary judgment and issued a writ ordering the Sheriff of Madison County to assist plaintiffs in taking possession of the property. This appeal fol.lows. Appellants contend that there exists a genuine issue of material fact on whether, on both statutory and equitable grounds, a forfeiture should be granted. is without merit. well settled. Mont. Such a contention The law in Montana on summary judgment is See Cereck v. Albertson's Inc. (1981), 195 409, 637 P.2d 509. Appellants failed to answer the complaint within 20 days of service of the complaint and summons as prescribed by Rule 12 (a), M.R.Civ.P. No leave of the court to file an untimely answer was requested and no answer was ever served or filed. As a result the averments in respondents' complaint are deemed admitted. M.R.Civ.P. Rule 8(d), Appellants did not answer respondents' requests for admissions so the requests are also deemed admitted. Rule 36 (a), M.R.Civ.P. The District Court, though not required to do so, allowed appellants to testify at the summary judgment hearing. Based on the above, there is no material issue of fact with regard to appellants' assumption of the Reese contract for deed, appellants' failure to make the September 1983 payment, the existence of the forfeiture clause in the contract and respondents' compliance with the notice provisions necessary to enforce the forfeiture clause, and appellants failure to tender payment due under the contract. The District Court ruled. as a matter of law that $ 5 28-1-104, MCA, was inapplicable to the facts of this case and ordered that the forfeiture specifically enforced. clause of the contract be Section 28-1-104, MCA, clearly does not apply because the appellants failed to tender any compensation to Massar. Appellants contend for the first time on appeal that they a.re entitled to equitable relief from forfeiture. Appellants did not plead equitable relief from forfeiture as an affirmative defense. We held in Sundial Land Co. v. Gold Creek Ranches (19821, 198 Mont. 247, 252, 645 P.2d 936, 939, that forfeiture is an affirmative defense and must be pleaded. in defendant's answer. We need not consider this issue for the first time on appeal. Respondents requested in their brief that this Court order the District Court to award attorney fees to them pursuant to the terms of the contract. We will not consider any relief to the respondents in excess of the District Court's judgment cross-appeal. filed. unless the respondents Rule 5, M.R.App.Civ.P. have filed No cross-appeal was The judgment of the District Court is affirmed. Affirmed. ,/I ,I I. We Concur: a 1 Justice 0

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