Aetna Life Ins. Co. v. Jordan

Decision Date13 August 1992
Docket NumberNo. 92-008,92-008
Citation254 Mont. 208,835 P.2d 770
PartiesAETNA LIFE INSURANCE COMPANY, Plaintiff and Respondent, v. Lawrence Edward JORDAN; Lawrence Emmett Jordan, a/k/a Larry Jordan, a/k/a Larry E. Jordan; Helen K. Jordan, a/k/a Helen Jordan, Defendants and Appellants, and First National Bank of Hysham; The Partnership of Marv Huisman, Les Broeck and Doug Strangeland; Chuck Kananen; and Central Electric Service, Defendants.
CourtMontana Supreme Court

Craig D. Martinson, Billings, for defendants and appellants.

John G. Crist, Dorsey & Whitney, Billings, for plaintiff and respondent.

James A. Patten, Patten Law Firm, Michael B. Anderson, Holland & Hart, Billings, Timothy J. O'Hare, James L. Stogsdill, Lewistown, for defendants.

McDONOUGH, Justice.

Lawrence Edward Jordan, Lawrence Emmett Jordan and Helen K. Jordan appeal from an order of the Tenth Judicial District, Fergus County, in favor of Aetna Life Insurance Company. We affirm and remand.

The issues presented on appeal are:

1. Whether the District Court erred in granting summary judgment in favor of Aetna, without a hearing;

2. Whether the District Court erred in granting Lawrence Emmett Jordan and Helen K. Jordan occupancy of the house during the redemption period and in granting Aetna Life Insurance Company the income from the rented mortgaged premises during the redemption period; and

3. Whether the District Court erred in granting Aetna Life Insurance Company the CRP payments from the mortgaged premises during the redemption period when the Jordans, subsequent to the mortgage, assigned their interest to a third party.

On December 15, 1983, Lawrence Emmett Jordan and Helen K. Jordan, husband and wife, and Lawrence Edward Jordan (Jordans) executed a promissory note in the principal sum of $1,400,000, payable to Aetna Life Insurance Company (Aetna). The note was secured by a mortgage covering certain real property in Fergus County, Montana. Jordans executed a Mortgage Deed Security Agreement, and finance statement. The documents were recorded and filed with the Fergus County Clerk and Recorder on December 16, 1983.

The Jordans defaulted on the payment required under the Note and Mortgage. On July 3, 1985, Aetna brought an action to foreclose the Note and Mortgage against the Jordans. On June 30, 1987, the Jordans filed bankruptcy under Chapter 11, which stayed the foreclosure proceedings. A plan of reorganization was approved on April 3, 1989. The Jordans defaulted on the plan. Aetna amended their foreclosure complaint on November 3, 1990. Aetna filed a motion for summary judgment on May 24, 1991. On August 7, 1991, Aetna filed its motion requesting the order granting summary judgment. The District Court ruled in favor of Aetna. This appeal followed.

I

Whether the District Court erred in granting summary judgment in favor of Aetna, without a hearing.

The District Court granted Aetna's motion for summary judgment, entering judgment on August 13, 1991, two months after Aetna's motions and briefs were filed. The District Court was advised that the Jordans did not intend to file a response. Under Rule 2(b) of the Uniform District Court Rules, failure to provide an answer brief within ten days is deemed an admission that the motion is well taken. The District Court relied on Rule 2(b). The Jordan's contend that under Rule 56(c), M.R.Civ.P., a hearing must be held with a 10 day notice to the opposing party.

Rule 56(c), M.R.Civ.P., provides in part:

The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits ...

Jordans rely on Cole v. Flathead County (1989), 236 Mont. 412, 771 [254 Mont. 211] P.2d 97, for the proposition that an oral argument is required for summary judgment unless it is specifically waived by all parties.

In Cole we held that the procedure to be followed on motions for summary judgment must conform to the provisions of Rule 56, M.R.Civ.P. Cole at 417, 771 P.2d at 100. In our discussion of the interplay between Rule 56, M.R.Civ.P., and Rule 2, Montana Uniform District Court Rules, we said:

[T]he essential question for the District Court in deciding a motion for summary judgment either for the plaintiff or for the defendant is whether there exists a genuine issue of material fact. That inquiry does not admit of decision merely on a technical point, such as whether briefs have been filed on time.

Cole at 416, 771 P.2d at 100.

In the case before us, the District Court reviewed Aetna's motion and memorandum together with the supporting affidavits. The District Court found that the motion was properly supported by appropriate factual evidence, and that Aetna was entitled to summary judgment foreclosing the note and mortgage as a matter of law.

However, Jordans argue that a hearing is required under Rule 56, M.R.Civ.P. We stated in Cole that "under Rule 56(c), a hearing is contemplated from which the district court will consider not so much legal arguments, but rather whether there exists genuine issues of material fact." We went on to say that "a district court may not, by rule or otherwise, preclude a party from requesting oral argument, nor deny such a request when made by a party opposing the motion unless the motion for summary judgment is denied." Cole at 418, 771 P.2d at 101.

After the granting of the order of summary judgment the Jordans retained a different attorney. The new attorney filed several motions with the District Court and requested a hearing. A hearing was held before the District Court on November 1, 1991 on Jordans' motion for a new trial or in the alternative to alter or amend judgment and motion to stay proceedings.

During the hearing, the court stated that the Jordans did not raise any factual matters relevant to the issuance of the summary judgment, and Jordans admitted in their brief in support of such motions there was no fact questions of whether or not Jordans were in default on the terms of their note and mortgage. Questions of fact raised by Jordans in the hearing only related to post judgment proceedings or amendments to the judgment, such as the use of the property, rights to rents and profits from the property, government payments, and valuation of the property for deficiency purposes. Thus, the court believed that a hearing on raising genuine issues of material fact relative to the motion for summary judgment, was waived, and in its order of November 15, 1991 denying such motions, reinstated the August 13, 1991 order granting summary judgment.

We conclude that the District Court was correct in reinstating the order of summary judgment to Aetna. We affirm the District Court on this issue.

II

Whether the District Court erred in granting Lawrence Emmett Jordan and Helen K. Jordan occupancy of the house during the redemption period, and in granting Aetna Life Insurance Company the income from the rented mortgaged premises during the...

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2 cases
  • ESTATE OF SCHWABE v. Custer's Inn Associates, LLP, 99-353.
    • United States
    • Montana Supreme Court
    • 12 décembre 2000
    ...party from requesting oral argument, nor deny such a request when made by a party opposing the motion. See Aetna Life Ins. Co. v. Jordan (1992), 254 Mont. 208, 211, 835 P.2d 770, 772 (quoting Cole, 236 Mont. at 418, 771 P.2d at ¶ 56 At no time, however, did counsel for the Estate object to ......
  • Svkv, L.L.C. v. Harding
    • United States
    • Montana Supreme Court
    • 20 novembre 2006
    ...relies on post-Cole cases in support of its position that a hearing was required in this case. It advances Aetna Life Ins. Co. v. Jordan, 254 Mont. 208, 211, 835 P.2d 770, 772 (1992), for the proposition that a district court may not preclude a party from requesting oral argument on a summa......

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