Downs v. Smyk

• Decision Date: 26 October 1982
• Docket Number: No. 81-452,81-452
• Citation: 651 P.2d 1238,39 St.Rep. 1786,200 Mont. 334
• Parties: Robert F. DOWNS, Plaintiff and Respondent, v. Bernard SMYK, a/k/a Bernard L. Smyk, and Lois A. Smyk, Defendants and Appellants.
• Court: Montana Supreme Court

Page 1238

651 P.2d 1238

200 Mont. 334

Robert F. DOWNS, Plaintiff and Respondent, v. Bernard SMYK, a/k/a Bernard L. Smyk, and Lois A. Smyk Defendants and Appellants.

No. 81-452.

Supreme Court of Montana.

Submitted on Briefs June 21, 1982.

Decided Sept. 23, 1982.

Rehearing Denied Oct. 26, 1982.

Gregory Jackson, Douglas B. Kelley, Helena, for defendants and appellants.

Bernard Smyk, Pro Se.

Calton & Hamman, Billings, for plaintiff and respondent.

WEBER, Justice.

Defendant Smyk appeals from summary judgment in the Thirteenth Judicial District Court, Yellowstone County, in this action arising out of a written agreement between the parties. The agreement (June 1976 agreement) provided that Downs would advance money for the downpayment in the purchase of certain real property in Billings. This action arose when Downs and Smyk were unable to agree about the meaning and implementation of the terms of the June 1976 agreement.

We reverse the District Court in part, affirm in part, and remand for trial.

Defendant Smyk presents the following issues to this Court:

(1) Whether the District Court acted within its authority in granting a remedy allowing Downs exclusive control over the contractual arrangements for the property for a period of one year.

(2) Whether the District Court erred in ruling that defendant was not entitled to a jury trial.

(3) Whether the District Court erred by granting summary judgment.

Smyk filed appellant's brief acting pro se. Thereafter, he hired an attorney, who authored the appellant's reply brief. Respondent Downs moves this Court to strike the reply brief as being "an entirely new second Appellant's brief" that raised new issues, some of which were not before the District Court, others of which were raised in neither the appellant's brief nor the respondent's brief.

Traditionally this Court has accorded some procedural leeway to litigants proceeding pro se. This "leeway" does not extend to allowing them to raise issues which are not properly before this Court, and to disadvantage their opponents by raising new matters in their reply briefs. Rule 23(c), M.R.App.Civ.P. states that "... [t]he reply brief must be confined to new matter raised in the brief of the respondent." Our consideration of Smyk's arguments, therefore, will be limited to the above issues, which we find to be properly before this Court.

In March of 1976, the owner of a 7 1/2 acre parcel of land in Billings offered Smyk a 120-day option to purchase the property for $300,000 with $60,000 down. Smyk had leased the land during the previous several years for his used-equipment business, and desired to purchase it, but was unable to raise $60,000 for the downpayment. In June of 1976, Smyk and Downs entered into an agreement, whereby Downs would advance Smyk the downpayment and receive certain benefits, including a 50% interest in the property. Rental income was to be placed in a separate account for the benefit of the parties. The agreement also provided:

"Downs will control any contractual arrangements until Smyk has contributed by payment of the monthly installments, the sum of $60,000.00. At that time, Downs and Smyk shall equally share all liabilities and profits, if any."

In July of 1976, Smyk entered into a contract for deed with the trustee for the property and made the downpayment with the $60,000 advanced by Downs. Smyk continued to occupy and use the property as his place of business but ceased to make rental payments for such use.

In fall of 1977, prior to the equalization of contributions, and therefore, during the period when Downs possessed authority to "control any contractual arrangements," Downs was offered $500,000 for the property. The offeror, Hammons, apparently was willing to pay any penalty resulting from the sale, as well as to cover acceleration of payments on the contract for deed, if acceleration resulted from the sale. Downs drew up a negotiated initial agreement providing for Smyk's approval and the approval of the trustee for the original owner (Carlson Trust) as required under the contract for deed signed in July of 1976. Downs claims he sought Smyk's approval of the sale, but Smyk refused to agree to sell the property. Smyk equalized his contribution with Downs' on February 10, 1978.

On February 27, 1978, Downs filed suit in the District Court seeking specific performance of the June 1976 agreement, or, in the alternative, partition, and an accounting and payment of rentals. An amended complaint was filed in August of 1978 seeking to quiet title to Downs' one-half interest, partition, an accounting and payment of income due, and seeking a declaratory judgment as to Downs' right to control sale of the property.

Following the taking of depositions of the parties, Downs filed a motion for summary judgment pursuant to Rule 56, M.R.Civ.P., on August 23, 1978, on the ground that there was no genuine issue as to any material fact. After briefing on the motion, the District Court granted summary judgment on February 13, 1979, on Downs' claim to quiet title and his claim seeking an accounting and payment of rental and income due. Judgment was entered on February 23, 1979, decreeing that Downs owned an undivided 50% of the property under the agreement and that Smyk must account to Downs for rental and other income derived through the use of the property. The District Court denied Downs' requests for partition of the property and for "continual control of the contractual arrangements."

Smyk appealed, and this Court affirmed the decision of the District Court, finding that summary judgment was appropriate and that under the June 1976 agreement, Downs' advance of the downpayment of $60,000 gave him a 50% interest in the property. See Downs v. Smyk (1979), Mont., 604 P.2d 307, 36 St.Rep. 2300. Smyk's petition for rehearing, based in his assertion that he was denied his right to trial by jury, was denied.

Downs next moved the District Court for summary judgment entitling him to control contractual arrangements with regard to property for one year or, in the alternative, for partition of the property. He also moved the court to compel discovery relative to the accounting. Smyk continued to demand a jury trial, so Downs also moved for a declaration that Smyk was not entitled to a jury trial in this action. By order dated August 11, 1981, the District Court granted Downs' motion to strike Smyk's demand for a jury trial and granted summary judgment for Downs granting Downs exclusive control of the contractual arrangements in relation to the land for a period of one year. The ruling on the motion to compel discovery was withheld, because defendants were acting in a cooperative manner. Smyk appeals.

I.

Smyk argues that, because the remedy granted Downs was not identical to Downs' rights under the June 1976 agreement, the remedy was not specific performance, and was not within the authority of the court to grant. Smyk maintains that because there was no provision in the agreement allowing Downs one year to control contractual arrangements, the District Court could not grant "specific performance" which included that provision. Then Smyk argues that since Downs failed to make contractual arrangements for the sale of the property before Smyk contributed $60,000, he forever lost his right to do so.

We do not agree. The effect of the remedy was to return the parties to the status quo at the time Downs claimed Smyk refused to agree to the sale of the property, then to require Smyk to specifically perform. Admittedly, the creation of one year as a reasonable time to retain that status quo, is somewhat artificial, but it is hardly a fatal flaw in the judgment. In Link v. State By and Through Department of Fish and Game (1979), 180 Mont. 469, 591 P.2d 214, this Court found that the Fish and Game Commission had breached its agreement with park concessionaires Link, to maintain and operate a "mountain railroad" at Lewis and Clark Caverns. The Commission had obtained the railroad from Links, but had eventually abandoned it. This Court found that the District Court properly required both maintenance and repair of the railway and return of the re-established and repaired railway to the concessionaires. We stated:

"The only just, reasonable and feasible solution was to compel specific performance and return the Links to the position they were in at the time the March 1950 contract was entered into, where the Links could run the railroad and the visiting public would again be served with transportation facilities to the mouth of the cave." Link, 180 Mont. at 482, 591 P.2d at 222.

This Court's rationale in Link, 180 Mont. at 482, 591 P.2d at 222, follows:

"In a specific performance case, the District Court sits as a court of equity and it is empowered to determine questions involved in the case and to do complete justice. Hames v. City of Polson (1950), 123 Mont. 469, 477, 215 P.2d 950, 955.

" 'The plaintiffs may not in equity insist upon the performance of the terms of the lease and at the same time prevent the performance thereof. One who prevents the performance of the terms of a contract cannot avail himself of the nonperformance which he himself prevents. (Citations omitted).' Fey v. A.A. Oil Corp. (1955), 129 Mont. 300, 319, 285 P.2d 578, 588."

We are unwilling to state that Smyk breached the June 1976 agreement, or even that the terms of the agreement necessarily granted Downs the authority to decide to sell as well as to control contractual arrangements. Those matters must be determined upon remand to the District Court for trial. (See Issue III.) We only state that, if such a right existed in Downs, and its exercise was prevented by Smyk, it was within the power of the trial court to restore the parties to the status quo before specifically enforcing the agreement. Nor do we find that the period of one year for Downs to control is unreasonable; the negotiation of the sale of a good-sized...