2002 MT 71 - Hungerford v. Bras

                                            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,

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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