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No. 89-391 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989

CLARENCE T. BEI,UE and DIAN R. BELUE, Plaintiffs and Respondents, -vsDANIEL J. GEBHARDT, BONNIE R. GEBHARDT, RICHARD A. DORN, FRED J. CALL, SR., and LARRY DORN, Defendants and Appellants.

.

APPEAL FROM:

District Court of the Thirteenth Judicial District, In and for the County of Big Horn, The Honorable William J . Speare, Judge presiding.

COUNSEL OF RECORD: For Appellant: ~ Montana Douglas Y. Freeman, (~orn), a r d i n , James E . Torske, (Call, Sr.), Hardin, Montana For Respondent: Clarence T . Belue, pro se, Hardin, Montana

Submitted on Briefs: Decided: Filed :

Nov. 2, 1989

December 20, 1989

Justice Fred J. Weber delivered the Opinion of the Court. This appeal arises from an order by the District Court, Thirteenth Judicial District, Big Horn County, Montana. The District Court granted summary judgment in favor of plaintiffs. Defendants appeal. We affirm. The sole issue presented for review is whether the default clause of a contract for deed limits sellers to the remedy of termination of the contract. On September 24, 1981, Mr. and Mrs. Belue sold an office building in Hardin, Montana, to Dr. and Mrs. Gebhardt, on a contract for deed. The Gebhardts moved from Hardin in 1983 and sold their interest in the contract to Richard Dorn and Fred Call, Sr. Mr. Dorn was a realtor. He rented the building until 1988, when he determined he could no longer make payments on the contract. Mr. Dorn assigned his interest in the contract to his cousin, Larry Dorn, who made one payment and then defaulted. The last payment the Belues received was in April 1988. On August 1, 1988, and again on August 26, 1988, they sent a notice of default to the Gebhardts and to Mr. Richard Dorn, Mr. Fred Call, and Mr. Larry Dorn. When the default was not cured, the Belues brought suit for the balance due under the contract. The District Court granted summary judgment in favor of plaintiffs, and defendants appeal. Summary judgment is only appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. On appeal our standard of review is to determine whether the record reveals genuine issues of material fact, which would preclude the District Court from granting summary judgment.

Defendants' primary contention is that the default clause in the contract limits the plaintiffs' remedy to termination of the contract. They contend the District Court erred in granting plaintiffs a judgment on the balance due. The default clause states in pertinent part: DEFAULT Should any default of the purchasers hereunder remain incurred for more than twenty (20) days after written notice thereof to purchasers, then sellers may, at sellers' option, upon 5 days additional written notice to purchasers, declare the entire outstanding balance hereof with accrued interest thereon immediately due and payable, and upon non payment thereof, sellers may as an alternative to any other remedy terminate this agreement without further notice. In the event of such termination, purchasers agree on demand: (a) To surrender possession of said property and improvements thereon, immediately and peaceable: (b) To execute such instruments as the seller may require to evidence of record termination of this agreement and of purchasers' interest in such property and improvements, and sellers shall be entitled to retain all payments made hereunder as liquidated damages for the breach of this agreement and as a reasonable rental for the use of the property. The District Court concluded that according to the language of the contract and this Court's holding in Glacier Campground v. Wild Rivers, Inc. (1978), 184 Mont. 543, 597 P.2d 689, plaintiffs were not limited to termination of the contract as their sole remedy. We agree. In accordance with the default provision, the sellers gave the initial 20-day written notice and in addition gave the 5-day additional written notice ,under which the sellers declared the entire outstanding balance with interest immediately due and payalnle. There is no dispute that the balance was properly 11.

declared provides may as agreement

immediately due t h a t upon an without alternative to

and p a y a b l e . any other
"

The remedy

clause

further "sellers this The

nonpayment o f further notice.

t h a t balance t h e

terminate

(Emphasis a d d e d . )

r i g h t t o terminate i s c l e a r l y a choice given t o t h e s e l l e r s . T h e r e i s no i n d i c a t i o n t h a t t e r m i n a t i o n i s t h e o n l y remedy. Termination of

i s s p e c i f i c a l l y s t a t e d t o be an a l t e r n a t i v e t o
The p a r t i e s a r e hound by t h e p l a i n meaning t h e c o n t r a c t where ( 1 9 7 7 ) , 172 Mont. there
i s no a m b i g u i t y .

any o t h e r remedy. t h e words o f Quinn v . B r i g g s 301.

468, 475-76,

565 P.2d

297,

I n G l a c i e r Campground t h i s C o u r t had o c c a s i o n t o c o n s i d e r t h e i s s u e o f w h e t h e r t h e p l a i n t i f f was l i m i t e d t o a c e r t a i n remedy.
W e stated:

I n t h e absence of a c o n t r a c t u a l provision e x p r e s s l y l i m i t i n g t h e remedy o r r e m e d i e s a v a i l a b l e , a p a r t y may p u r s u e a n y remedy which law o r e q u i t y a f f o r d s , a s w e l l a s t h e remedy o r r e m e d i e s specified i n the contract. G l a c i e r Campground, remedies. 597 P.2d a t 696.
W e conclude t h a t t h e

l a n g u a g e o f t h e c o n t r a c t a l l o w s t h e p l a i n t i f f s an e l e c t i o n o f I n t h e p r e s e n t c a s e , p l a i n t i f f s e l e c t e d t o s u e on t h e balance due.
A s an a l t e r n a t i v e argument, d e f e n d a n t s contend t h a t t h e

notices of

default

l e d them t o b e l i e v e t h a t t h e p l a i n t i f f s They c o n t e n d t h a t

intended t o merely terminate t h e c o n t r a c t . would b e p u r s u e d . tion.

t h e n o t i c e s s h o u l d h a v e b e e n s p e c i f i c a s t o t h e remedy which No a u t h o r i t y i s c i t e d f o r t h i s p r o p o s i The l a n g u a g e o f t h e d e f a u l t n o t i c e s f o l l o w s t h e l a n -

guage o f t h e c o n t r a c t f o r d e e d , i n t h a t it s t a t e s t h a t u n l e s s d e f a u l t i s c u r e d , p l a i n t i f f s may e i t h e r d e c l a r e p a y a b l e t h e e n t i r e b a l a n c e o f p r i n c i p a l and i n t e r e s t , o r i n t h e a l t e r n a tive, terminate the contract. A c c o r d i n g l y , we c o n c l u d e t h a t

defendants'

contention i n regard

t o the default notices is

meritless.
W e conclude t h a t defendants f a i l e d t o r a i s e any genuine

issues of

material

fact,

and t h e c o u r t was c o r r e c t i n i t s
W e affirm

g r a n t o f summary judgment i n f a v o r o f p l a i n t i f f s . t h e D i s t r i c t C o u r t ' s g r a n t o f summary judgment. Affirmed.



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