Slip opinions decided 2006 — Montana Public Domain Citations

<p> JUSTICE COTTER dissents. ¶30 I dissent. I would conclude that the Findings of Fact, Conclusions of Law and Judgment of the District Court are intrinsically inconsistent, and that the District Court erred in its analysis and conclusions. I would reverse and remand with instructions to enter judgment for VX Ranch. ¶31 The Court notes at the outset of its Opinion that the District Court made alternative findings: either the Agreement between the parties was not subject to a financing condition, or-if it was-VX Ranch did not make reasonable efforts to obtain such financing. The Court then proceeds to dismiss the latter alternative altogether, in favor of the former. ¶ 3. In arriving at this conclusion, the Court selectively ignores what actually happened prior to and at trial, as well as the clear language of the contracts. ¶32 Prior to trial, VX Ranch moved for summary judgment. In denying its motion, the District Court concluded that a disputed issue of fact existed for resolution at trial-i.e., whether VX Ranch used reasonable efforts to obtain financing. In fact, the court said in its order denying summary judgment that “The [c]ourt interprets the phrase in the second sentence [of the paragraph from the Buy/Sell Agreement quoted by the Court at ¶ 18] ‘[i]f financing cannot be obtained’ as implying a requirement that VX use at least reasonable efforts to obtain the required financing.” Thus, the District Court clearly acknowledged that financing was contemplated, and that there was a triable issue of fact as to whether VX Ranch used reasonable efforts to secure the required financing. However, the District Court then inexplicably recanted this conclusion in its Findings of Fact and Conclusions of Law. For the reasons set forth below, it erred in doing so. ¶33 The Buy/Sell Agreement, together with the Addendum, clearly establishes the existence of a financing contingency. If the failure to check one “form of financing” box or another in the Buy/Sell form raised any genuine question, it was effectively refuted by the retention of the form language below to the effect that “If financing cannot be obtained within the time set forth in the TIME FOR COMPLETION section, this offer is terminated and the earnest money will be returned to the Buyer.” And if the inclusion of this language was not enough to dispel any ambiguity, then surely the Addendum-a contract prepared and signed by both parties (as opposed to a form document) specifically to address financing-puts the issue to rest. The Addendum, the language of which is set forth verbatim in ¶ 7 of the Court’s Opinion, references the Buy/Sell and then states as a preamble: “WHEREAS there has been a delay in obtaining the financing due to no fault of either party,” and ‘WHEREAS both parties agree to extend the closing ... in order to allow for more time to complete the financing.” (Emphasis added). If there was no financing condition, then why sign an Addendum delaying the closing until it could be obtained? ¶34 The Court attempts to explain away the Addendum at ¶ 25, in effect saying, that the phrase “to allow for more time to complete the financing” really means “to allow more time for the Buyer to come up with the necessary funds from his own pocket.” Respectfully, this interpretation is a stretch, especially when read against the District Court’s own pre-trial conclusion that the parties contemplated that the Buyer would use reasonable efforts “to obtain the required financing” (see ¶ 32), and in light of the substantial relevant evidence admitted at trial as to the efforts undertaken by VX Ranch to secure outside financing. See ¶ 36. The Court’s reading of the phrases “obtaining the financing” and “complete the financing” as set forth in the Addendum simply cannot, in my view, be reconciled with the words chosen by the parties for the Addendum; moreover, it flies in the face of § 1-4-101, MCA, (we are to ascertain and declare what is in substance contained in the instrument); § 1-4-102, MCA, (we are to construe an instrument in accordance with the circumstances under which it is made so that the judge is “placed in the position of those whose language he is to interpret”); § 1-4-103, MCA, (where general and particular provisions are inconsistent, the latter are paramount); and, especially, § 1-4-105, MCA, (where an instrument consists partly of written words and partly of printed words and the two are inconsistent, the former controls the latter) and § 28-3-205, MCA, (where the purely original language and the printed form are repugnant, “the latter must be so far disregarded”). If we simply read the words the parties selected, and do so in accordance with our law on the construction of instruments, the conclusion that financing was contemplated as a condition of the contract is inescapable. The District Court’s and this Court’s conclusion to the contrary is patent error, in my judgment. ¶35 The Court also errs in reading more into the language of the Agreement than it should. At ¶ 19, the Court notes that line 37 of the Agreement specified that the balance of the purchase price would be by way of “cash payment,” payable at closing. This language does not support the Court’s conclusion that no financing was contemplated, because, whether there is outside financing or not, there is always a cash payment at closing from some entity. Similarly, at ¶ 22, the Court misconstrues the import of the language at lines 67-70 of the Agreement. The language italicized by the Court does not suggest there would be no outside sources of financing; rather, this paragraph means only what it says-i.e., Buyer has sufficient funds for the down payment and closing costs, and is not relying upon contingent sources for payment of these items. ¶36 I would conclude both that financing was clearly contemplated as a condition of the contract, and that VX Ranch used reasonable efforts to obtain it. The evidence at trial established that VX contacted a number of lenders, it negotiated with Farm Credit Services down to the wire, and indicated its willingness to collateralize the purchase with securities in addition to the property. This being the case, and under the terms of the Buy/Sell as extended by the Addendum, the contract terminated and the earnest money should have been returned to VX Ranch. ¶37 Based upon the foregoing, I would reverse and direct the District Court to enter judgment for VX Ranch. I dissent from our refusal to do so. CHIEF JUSTICE GRAY and JUSTICE NELSON join in the dissenting Opinion of JUSTICE COTTER. </p>