Burmaster v. Radford ( 2020 )

04/28/2020
DA 19-0603
Case Number: DA 19-0603
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 101N
DENNIS BURMASTER, Personal Representative of the
ESTATE OF ROBERT W. BURMASTER, Deceased,
Plaintiff and Appellee,
v.
DONALD A. RADFORD and CLAUDIA L. RADFORD,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Mineral, Cause No. DV-18-49
Honorable Shane Vannatta, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Claudia L. Radford, Self-Represented, Donald A. Radford,
Self-Represented, Missoula, Montana
For Appellee:
Ted Hess-Homeier, HH Eviction, Inc., Missoula, Montana
Submitted on Briefs: March 18, 2020
Decided: April 28, 2020
Filed:
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__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Pro se appellants Donald and Claudia Radford (“Radfords”) appeal from an order
of the Fourth Judicial District Court, Mineral County, granting Dennis Burmaster’s
(“Burmaster”) motion for summary judgment and dismissal of Radfords’ counterclaim
for unjust enrichment. The Radfords argue the District Court erred in granting summary
judgment to Burmaster because they had a cognizable claim to remain on the property
under an unsigned buy-sell agreement. Alternatively, they argue the District Court erred
in dismissing their counterclaim for unjust enrichment since they made improvements to
Burmaster’s property. We affirm.
¶3 In 2016, the parties began negotiations for the Radfords to purchase 818 Railroad
Avenue, Alberton, Montana (the “Property”), from Burmaster. The parties negotiated a
buy-sell agreement with a sale price of $25,000 and a closing date of December 5, 2016,
plus 15 days that also included a time-of-the-essence clause. The buy-sell agreement was
never fully signed by the parties and the agreement lapsed. Meanwhile, the Radfords had
moved onto the property in an RV and begun making renovations to the home.
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¶4 On July 25, 2018, Burmaster sent the Radfords a Notice to Vacate. After more
than 30 days elapsed, the Radfords remained on the Property. On September 6, 2018,
Burmaster filed a Verified Complaint for Possession in Mineral County Justice Court,
pursuant to the Unlawful Detainer Act statutes set forth in Title 70, chapter 27, MCA,
seeking to enforce the Notice to Vacate. Burmaster’s complaint alleged that the Property
was owned by him, that Defendants were given 30 days of notice to vacate the Property,
and the Defendants had not done so. The complaint requested possession of the Property,
an award of damages for any damage to the Property, and reasonable attorney’s fees and
costs in bringing the action. On October 2, 2018, the Radfords filed an Answer,
Counterclaim, and Demand for Jury Trial. The Radfords also successfully moved the
action to the District Court. The Radfords’ answer admitted the factual allegations of
Burmaster’s complaint, but alleged a host of affirmative defenses including laches,
estoppel, waiver, acceptance, failure of a condition precedent, unjust enrichment, and
breach of contract. The Radfords’ counterclaimed for breach of contract, unjust
enrichment, and construction lien.
¶5 On December 28, 2018, Burmaster filed a Motion for Summary Judgment. On
May 3, 2019, the District Court granted Burmaster summary judgment, concluding that
there was no genuine issue as to any material fact and that Burmaster was entitled to
judgment as a matter of law since there was no written agreement allowing the Radfords
to retain possession of the Property. The District Court also held that the Radfords’
equitable claim of unjust enrichment was superseded by Montana law and dismissed the
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Radfords’ construction lien counterclaim for failure to state a claim.1 The District Court
ordered that Burmaster was entitled to immediate possession of the Property and to a
Writ of Assistance in furtherance of that right. The Radfords were subsequently evicted
from the Property.2 On September 4, 2019, the Radfords’ attorney withdrew. The
Radfords appealed the matter pro se on October 2, 2019.
¶6 We review a district court’s grant of summary judgment de novo. Chapman v.
Maxwell, 2014 MT 35, ¶ 7, 374 Mont. 12, 322 P.3d 1029. A district court’s dismissal of
a claim is reviewed for correctness and with all allegations of fact made by the
nonmoving party taken as true. Kingston v. Ameritrade, Inc., 2000 MT 269, ¶ 9, 302
Mont. 90, 12 P.3d 929.
¶7 The Radfords appeal the District Court’s grant of summary judgment under two
theories. In their brief, the Radfords request their investment in the home, “which is
$55,000 or to be able to purchase the home at the original price agreed upon which is
$25,000.” In essence, the Radfords argue on appeal that the District Court erred in
granting summary judgment to Burmaster since Burmaster breached their original buy-
sell agreement. Alternatively, the Radfords argue that since they invested $55,000 in
renovations of the home, Burmaster was unjustly enriched, and they are entitled to
damages in that amount.
1
Under § 71-3-523, MCA, a construction lien claim is only valid where a “real estate
improvement contract” existed which was not the case here.
2
The Radfords lived on the Property through the District Court trial and remained there until
the eviction. The Radfords never discussed, agreed to, or paid rent to Burmaster during the time
they resided on the Property.
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¶8 Rule 56 of the Montana Rules of Civil Procedure provides “judgment shall be
rendered forthwith if the pleadings, depositions, answer to interrogatories, and
admissions on file, together with affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of
law.” M. R. Civ. P. 56(c)(3). The moving party bears the initial burden of establishing
both the absence of any genuine issue of material fact and entitlement to judgment as a
matter of law. Capital One, NA v. Guthrie, 2017 MT 75, ¶ 11, 387 Mont. 147, 392 P.3d
158. Upon establishing the initial burden, the burden then shifts to the non-moving party
to “by affidavits or as otherwise provided in this rule – set out specific facts showing a
genuine issue for trial” and it “may not rely merely on allegations or denials in its own
pleading.” M. R. Civ. P. 56(e)(2).
¶9 The District Court correctly concluded that there was no genuine issue of material
fact that Burmaster owns the Property or that Burmaster provided the Radfords with
notice to vacate the Property. Under the Unlawful Detainer Act, Burmaster rightfully
sought possession of the Property since possession is a right incident to ownership. The
Radfords admitted to all the factual allegations of Burmaster’s complaint and failed to
establish a cognizable claim to remain in possession of the Property. They claimed that
the buy-sell agreement granted them a right to remain on the Property. Montana law
requires that contracts for the sale of real property must be in writing and signed by the
grantor. Sections 28-2-903(1)(d), 30-11-111, 70-20-101, MCA; Luloff v. Blackburn, 274
Mont. 64, 906 P.2d 189, 191 (1995) (holding any transfer of real property must be in
writing and signed by the grantor). The Radfords only produced an unsigned buy-sell
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agreement; however, even if a fully signed agreement existed, the Radfords failed to
close by the December 21, 2016 closing date, resulting in the agreement terminating.
Accordingly, the Radfords breach of contract claim fails since no contract existed. The
District Court correctly granted Burmaster’s motion for summary judgment.
¶10 The Radfords’ counterclaim for unjust enrichment is superseded by Montana
statute. Section 70-28-110, MCA, provides:
When damages are claimed for withholding the property recovered upon
which permanent improvements have been made by a defendant or those
under whom the defendant claims, holding under color of title adversely to
the claim of plaintiff, in good faith, the value of the improvements must be
allowed as setoff against the damage.
Accordingly, before the Radfords may recover for any improvements to the Property,
they must prove: (1) that their possession of the Property was under color of title; and
(2) that the improvements were placed on the Property in good faith. Stevenson v. Owen,
212 Mont. 287, 295, 687 P.2d 1010, 1015 (1984). Color of title means “something which
has the appearance or gives the semblance of title but is not such in fact.” Owen, 212
Mont. at 295, 687 P.2d at 1015. The Radfords fail to satisfy the first element since they
admit that Burmaster owns the Property. They have no appearance or semblance of title
to the Property, nor do they have any contractual rights to the Property. Likewise, the
Radfords fail to satisfy the second element since, as the District Court held, “they took
the risk of improving the Property without first ensuring their rights to purchase the
Property, and later by failing to tender payment or close the agreement in the timeframe
negotiated.” Accordingly, the Radfords’ claim for unjust enrichment fails.
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¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. This appeal
presents no constitutional issues, no issues of first impression, and does not establish new
precedent or modify existing precedent.
¶12 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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