Laramie v. Jeffery

No. 94-627
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
DAVID M. and CONNIE LARAMIE,
Plaintiffs and Appellants,
v.
DONALD and ELIZABETH JEFFERY,
Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Leonard J. Haxby, Haxby & Somers, Butte, Montana
For Respondents:
Thomas J. Joyce, Hennessey, Joyce, McCarthy &
Wing, P.C., Butte, Montana
Submitted on Briefs: June 20, 1995
Decided: July 17, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
In this action, David M. and Connie Laramie seek specific
performance of a contract in which they agreed to purchase property
from Donald and Elizabeth Jeffery. The District Court for the
Second Judicial District, Silver Bow County, granted the Jefferys'
motion for summary judgment. We affirm.
The dispositive issue is whether summary judgment was proper
because the requirements of 5 30-11-111, MCA, were not met.
In September 1993, Elizabeth Jeffery signed an agreement with
Harrison Avenue Realty to list for sale a leasehold interest on
U.S. Forest Service land in Jefferson County, Montana, including a
cabin and outbuildings. On October 19, 1993, David and Connie
Laramie signed an Agreement to Sell and Purchase the leasehold,
ostensibly also signed by Donald and Elizabeth Jeffery. On October
26, 1993, Elizabeth Jeffery informed Maureen Britton of Harrison
Avenue Realty that, after consulting with her husband, she no
longer wished to go through with the sale.
The Laramies then filed this lawsuit seeking specific
performance of the Agreement to Sell and Purchase. The Jefferys
moved for summary judgment under Rule 56(c), M.R.Civ.P. In support
of their motion, they filed Donald Jeffery's affidavit stating that
he, individually, was the holder of the leasehold interest in the
Jefferson County property, that he did not sign the Agreement to
Sell and Purchase, and that he did not consent to allow Elizabeth
Jeffery to sign that agreement on his behalf.
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In rebuttal, the Laramies produced an affidavit in which their
attorney stated that Maureen Britton had told him that Donald
Jeffery signed either the listing agreement or the Agreement to
Sell and Purchase, but she could not remember which one. The
District Court correctly observed that this affidavit, as hearsay,
would not be admissible into evidence.
As noted by the District Court, an agreement to transfer an
interest in real property must be in writing and subscribed by the
party to be charged or his agent. Section 30-11-111, MCA. Selling
leased land involves a transfer of an interest in real property.
Aye v. Fix (1978), 176 Mont. 474, 478, 580 P.2d 97, 99, appeal
after remand 192 Mont. 141, 626 P.2d 1259.
On appeal, the Laramies argue that Elizabeth Jeffery signed
the Agreement to Sell and Purchase as Donald Jeffery's agent, and
that, at a minimum, she had a right to convey her own interest in
the property by her signature on the agreement. This argument is
without merit. The Laramies have not produced anything which could
be introduced into evidence to rebut Donald Jeffery's sworn
statement that he owned the property individually. Nor have they
produced anything to rebut his sworn statements that he did not
sign the Agreement to Sell and Purchase and that he did not give
Elizabeth Jeffery authority to act as his agent in entering the
agreement.
1n light of § 30-11-111, MCA, we conclude that no issue of
material fact exists as to whether there was a valid agreement to
sell and purchase the leasehold interest. Absent a valid agreement
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signed by the owner of the real property, or by the agent of the
owner authorized in writinq to sign an agreement to sell, the
remedy of specific performance is unavailable. We hold that the
District Court did not err in granting summary judgment to the
Jefferys.
Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to State Reporter Publishing Company and West Publishing Company.
We concur: /
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July 17, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
-11Iuu .J. “MVJ
HAXBY & SOMERS
Bo- ‘lMQ
* J”“”
Bul tte MT 59702-3008
Thomas J. Joyce
HENNES!jEY. JOYCE. MCCARTHY & WING, P.C.
, ,
Box H
Butte MT 59703
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA