Hungerford v. Bras , 2002 MT 71N ( 2002 )

No. 01-350
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 71N
ROBERT C. HUNGERFORD, SR., and
CLAUDIA S. HUNGERFORD,
Plaintiffs and Appellants,
v.
LANDO L. BRAS, DOROTHY M. BRAS, and
WALLY MASSIE,
Defendants and Respondents.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Robert C. Hungerford, Sr., and Claudia S. Hungerford (pro se), Superior,
Montana
For Respondents:
James A. Manley, Manley Law Firm, Polson, Montana
(For Respondents Lando L. Bras and Dorothy M. Bras)
Tia R. Robin, Kaufman, Vidal & Hileman, P.C., Kalispell, Montana
(For Respondent Wally Massie)
Submitted on Briefs: January 24, 2002
Decided: April 11, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 The Appellants, Robert C. and Claudia S. Hungerford, filed a
complaint in the District Court for the Twentieth Judicial District
in Sanders County in which they sought damages from the
Respondents, Lando Bras, Dorothy Bras, and Wally Massie, for
alleged misrepresentation and breach of a real estate contract.
The Bras filed a counterclaim in which they sought to void the
contract for deed and retake their real property. After a hearing,
the District Court granted the Bras' motion for summary judgment.
The Hungerfords' appeal from the District Court order granting
summary judgment. We affirm the District Court.
¶3 We have restated the issues presented on appeal as follows:
¶4 1. Did the District Court err when it concluded that there
was no genuine issue of material fact?
¶5 2. Did the District Court err when it refused to allow the
Hungerfords to offer exhibits at the hearing?
¶6 3. Did the District Court err when it allowed Bras to call
undisclosed witnesses at the hearing?
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¶7 4. Did the District Court err when it relied on the testimony
of the Bras' witnesses?
FACTUAL BACKGROUND
¶8 Lando and Dorothy Bras owned a farm supply and gas station
near Lone Pine, Montana. In the spring of 1997, the Bras offered
the property for sale through their real estate agent, Wally
Massie. On July 1, 1997, the Bras and the Hungerfords executed a
Buy-Sell Agreement for the property and closing occurred on August
4, 1997. The Hungerfords took possession of the real property
following closing.
¶9 The Hungerfords had full access to the property and had ample
opportunity to inspect the property prior to closing. However, the
Hungerfords did not hire a professional inspector.
¶10 The Hungerfords filed a complaint against the Bras and Massie
on August 4, 1999. The Hungerfords alleged breach of contract by
Bras, misrepresentation by Bras and Massie, and conversion by Bras.
The Bras filed a counterclaim in which they alleged that the
Hungerfords breached the contract for deed, primarily because the
Hungerfords failed to make monthly payments and failed to pay real
property taxes.
¶11 After prolonged delays created by the Hungerfords' ongoing
bankruptcy proceedings, the Bras and Massie filed a motion for
summary judgment and the District Court held a hearing on March 13,
2001. The District Court granted summary judgment to the
Respondents on April 17, 2001. The Hungerfords appeal from the
summary judgment order of the District Court.
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¶12 The Hungerfords, appearing pro se, raise over 30 issues on
appeal. Most of these, however, are not subsequently addressed in
their brief, which is largely devoted to matters raised for the
first time on appeal. We will not consider issues raised for the
first time on appeal. Dagel v. Manzer (1991), 251 Mont. 176, 178,
823 P.2d 874, 875-76. Accordingly, we have restated the issues
presented and address only those issues properly before this Court.
Furthermore, because it does not appear that the Hungerfords have
appealed that portion of the District Court's order which granted
summary judgment to Respondent Massie, we now affirm that portion
of the District Court order.
STANDARD OF REVIEW
¶13 Our standard of review of appeals from summary judgment is de
novo. Motarie v. Northern Montana Joint Refuse Disposal Dist.
(1995), 274 Mont. 239, 242, 907 P.2d 154, 156. We apply the same
criteria which is applied by the district court pursuant to Rule
56(c), M.R.Civ.P. Spinler v. Allen, 1999 MT 160, ¶ 14, 295 Mont.
139, ¶ 14, 983 P.2d 348, ¶ 14. The moving party must establish
both the absence of genuine issues of material fact and entitlement
to judgment as a matter of law. Hadford v. Credit Bureau of Havre,
Inc., 1998 MT 179, ¶ 14, 289 Mont. 529, ¶ 14, 962 P.2d 1198, ¶ 14.
Once the moving party has met its burden, the opposing party must
present material and substantial evidence, rather than mere
conclusory or speculative statements, to raise a genuine issue of
material fact. Hadford, ¶ 14.
DISCUSSION
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ISSUE 1
¶14 Did the District Court err when it concluded that there was no
genuine issue of material fact?
¶15 The Hungerfords' primary argument on appeal appears to be that
the District Court erred when it granted summary judgment to the
Respondents. The Hungerfords vaguely assert that issues of
material fact should have precluded summary judgment. However, the
Hungerfords do not provide this Court with any examples of the
factual issues overlooked by the District Court. In fact, the
District Court thoroughly addressed each of the Hungerfords'
allegations and carefully referenced each of its Findings to
undisputed documents or facts in the record. Consequently, we
conclude that the District Court did not err when it concluded that
no material issue of fact existed.
ISSUE 2
¶16 Did the District Court err when it refused to allow the
Hungerfords to offer exhibits at the hearing?
¶17 The Hungerfords contend that the District Court should have
permitted them to file a "joint affidavit" and unspecified
depositions and exhibits. We find no support for this contention
in the record. The District Court filed all the documents offered
by the Hungerfords, and even permitted the filing of additional
pages of affidavits and depositions at the hearing. All the
documents the Hungerfords offered to the District Court were
admitted and there is no indication that the District Court did not
review or consider these documents.
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ISSUE 3
¶18 Did the District Court err when it allowed Bras to call
undisclosed witnesses at the hearing?
¶19 The Hungerfords appear to argue that the District Court erred
when it allowed the Bras to call "surprise witnesses" without
submitting a witness list. The Bras note that no witness list was
required and that the Hungerfords did not file a witness list
before the hearing.
¶20 The transcript of the hearing clearly demonstrates that the
Hungerfords called witnesses (Mr. and Mrs. Hungerford) and that the
Bras called rebuttal witnesses to refute allegations made by those
witnesses. Therefore, we conclude that the District Court did not
err when it allowed the Bras to call rebuttal witnesses.
ISSUE 4
¶21 Did the District Court err when it relied on the testimony of
the Bras' witnesses?
¶22 According to the Hungerfords, the Bras' witnesses were not
credible and the District Court should not have relied on their
testimony. The Hungerfords' contentions, however, are speculative,
vague, unsupported assertions that have no basis in the record.
Accordingly, we conclude that the District Court properly
considered the testimony of Bras' witnesses.
¶23 In summary, there were no issues of fact before the District
Court. The unsupported speculation of the Hungerfords does not
raise an issue of material fact sufficient to preclude summary
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judgment. For these reasons, the order of the District Court is
affirmed.
/S/ TERRY N. TRIEWEILER
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We Concur:
/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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