Konitz v. Claver
| Decision Date | 12 March 1998 |
| Docket Number | No. 97-251,97-251 |
| Citation | 287 Mont. 301,1998 MT 27,954 P.2d 1138 |
| Parties | , 36 UCC Rep.Serv.2d 688, 1998 MT 27 Tom and Nikki KONITZ, Plaintiffs and Respondents, v. Terry CLAVER, d/b/a Glassco Lumber, |
| Court | Montana Supreme Court |
Patrick F. Flaherty, Great Falls, for Defendant and Appellant.
Monte J. Boettger, Lewistown, for Plaintiffs and Respondents.
¶1 Tom and Nikki Konitz filed a complaint in the District Court for the Tenth Judicial District in Judith Basin County to recover payment for the sale of timber to Terry Claver. Claver filed a counterclaim in which he asserted that the timber was defective. Konitzes moved for summary judgment and filed affidavits in support of the motion. The District Court granted Konitzes' motion for summary judgment and dismissed Claver's counterclaim. Claver appeals. We affirm the order and judgment of the District Court.
¶2 Four issues are raised by Claver on appeal:
¶3 1. Did the District Court err when it granted the motion for summary judgment and awarded the relief sought by Konitzes?
¶4 2. Did the District Court err when it denied Claver the opportunity to offer additional testimony at the hearing and in subsequent affidavits?
¶5 3. Did the District Court err when it granted the motion for summary judgment while discovery was still pending?
¶6 4. Did the District Court err when it dismissed Claver's counterclaim by summary judgment?
¶7 Terry Claver orally agreed in approximately February 1995, to purchase timber from Tom and Nikki Konitz. Konitzes agreed to harvest the timber from their land in Fergus County and deliver it to Claver's business in Stanford; Claver personally moved the first load of timber. Claver planned to use the timber for posts and poles. The parties dispute whether Claver was to pay $33 per ton or $30 per ton for timber delivered.
¶8 Konitzes contracted with local loggers and truck drivers to harvest and transport the timber to Claver. During the next five months, Claver received approximately fifty loads of timber, equal to approximately 1,400 tons. For the majority of the deliveries, Claver was present and inspected the timber. On at least two occasions, however, he told the truck driver who delivered the timber that he did not want to receive "any more loads like that." Claver also traveled at least twice to Konitzes' land where the timber was being logged to discuss with the contractor the quality of the timber that was being delivered and to point out the kind of timber that he expected.
¶9 He contends that a large portion of the timber that he received was defective and was not lodgepole pine, the species that he and Konitz had agreed upon. Claver contacted Tom Konitz by telephone about the deficiencies in the timber and contends that Konitz came to the mill and made assurances to work out the matter. Claver went ahead and processed the timber that met his requirements into posts. He contends that approximately 35-40 percent of the timber consisted of waste, which he has stored on his property and attempted to resell but without success.
¶10 In March 1995, Claver paid Konitzes $12,000. He made a second payment of $10,000 in June 1995. No other payments have been made. There was no indication when the payments were made whether they were being made at a rate of $33 or $30 per ton of timber. Konitzes produced statements from their records which indicated the amount due was based on a rate of $33 per ton. In October 1995, and the three months following, Konitzes sent a copy of the statements to Claver, along with the amounts and dates of delivery and the balance outstanding, including interest charges. They contend that Claver still owes over $26,000, and that not until April 1996, did he object to any of the statements.
¶11 On May 22, 1996, Konitzes filed a complaint in the District Court to collect the remaining balance. On July 29, 1996, Claver filed an answer and counterclaim. His answer asserted four affirmative defenses: (1) the complaint failed to state a claim; (2) the contract was unenforceable because it had not been reduced to writing, as required by the statute of frauds; (3) the contract was unenforceable due to lack of consideration; and (4) the contract was induced by fraud and misrepresentation. The counterclaim sought damages, including punitive damages, for the torts of trespass, nuisance, constructive fraud, and negligent misrepresentation, based upon a breach of warranty and Konitzes' subsequent failure to remove the timber from Claver's land.
¶12 On August 14, 1996, the District Court ordered, after a pretrial scheduling conference, that all discovery be completed by December 30, 1996, and that all motions and supporting briefs be filed by December 27, 1996. It set the final pretrial conference for January 13, 1997. On December 27, 1996, Konitzes moved for summary judgment and filed a brief and affidavits in support of the motion, and in the alternative, moved to dismiss Claver's affirmative defenses and counterclaim. Their basis for claiming a right to summary judgment was that Claver had not rejected the timber and, pursuant to the Uniform Commercial Code, he was therefore bound to make payment for the deliveries.
¶13 On January 7, 1997, Claver filed an affidavit in opposition to the summary judgment motion, in which he asserted that the quality of the timber was "hit and miss" and that certain loads were "reprehensible," while the timber was "defective in every known way to the timber industry and the worst junk timber I have ever received." He also stated that he gave Tom Konitz notice of rejection, and he offered telephone records along with the affidavit to show that he called Tom and the contractor at least a dozen times to complain. That same day, he sought and received from the District Court an extension of time to respond to the motion for summary judgment. His reply brief maintained that genuine issues of fact were raised by Claver's affidavit which precluded summary judgment.
¶14 At the hearing on January 13, 1997, the District Court indicated its inclination to grant summary judgment, at which point Claver's counsel requested that Claver be allowed to testify "to amplify what I think are factual issues [in] his affidavit, his verified answer and counterclaim, and his answers ... to the discovery." At the conclusion of the hearing, Claver also sought permission to file a supplemental brief to address the legal issues that had been raised. Over Konitzes' objection, the District Court allowed Claver to file a supplemental brief.
¶15 Claver's reply brief repeated the objections that he had allegedly made to Konitz about the quality of the timber, and contended that he had rejected many of the loads. In addition to the brief, Claver submitted seven new affidavits in opposition to the summary judgment motion. Konitzes subsequently filed a motion to strike the affidavits as untimely, pursuant to Rule 56, M.R.Civ.P. On March 26, 1997, the District Court granted the motion to strike and the motion for summary judgment, and dismissed Claver's counterclaim.
¶16 Did the District Court err when it granted the motion for summary judgment and awarded the relief sought by Konitzes?
¶17 Our review of a district court's grant of summary judgment is de novo and considers whether the district court was correct as a matter of law. See Schmidt v. State (1997), 286 Mont. 98, ----, 951 P.2d 23, 26, 54 St.Rep. 1321, 1322. We apply the same criteria used by the district court, based on Rule 56, M.R.Civ.P., to determine whether the moving party is entitled to judgment as a matter of law. See Jarrett v. Valley Park, Inc. (1996), 277 Mont. 333, 338, 922 P.2d 485, 487. In Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903, we established that the moving party first must demonstrate that no genuine issue of material fact exists. The burden then shifts to the party opposing summary judgment to prove by more than mere denial and speculation that a genuine issue does exist. See Bruner, 272 Mont. at 264, 900 P.2d at 903; see also Heiat v. Eastern Mont. College (1996), 275 Mont. 322, 327, 912 P.2d 787, 791.
¶18 In our review of a motion for summary judgment, we view the evidence in the light most favorable to the party opposing the motion. See Kaseta v. Northwestern Agency of Great Falls (1992), 252 Mont. 135, 138, 827 P.2d 804, 806; Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337.
¶19 Here, the District Court concluded that the affidavits offered by Konitzes established that they and Claver had formed a contract. They also led the District Court to conclude that only $22,000 had been paid for the timber, and that approximately $26,000 was still owed. When it shifted the burden to Claver, the District Court concluded from his affidavit and other parts of the record that he had in fact processed much of the timber, and that despite his assertion that he gave notice of rejection, Claver failed as a matter of law to make an effective rejection. The District Court held that the facts indicate that Claver accepted the timber which, pursuant to § 30-2-606, MCA, entitles Konitzes to recover. We agree with the District Court and, using the same criteria, conclude that Claver accepted the timber and is liable for the amount owed.
¶20 The agreement for sale and purchase of timber is governed by the Uniform Commercial Code as a sale of goods. See §§ 30-2-105(1) and -107(2), MCA (defining a contract for the sale of timber to be cut as a contract for the sale of goods). Therefore, we apply the terms of the statute to this matter.
¶21 Section 30-2-606, MCA, defines acceptance as follows:
(1) Acceptance of goods occurs when the buyer:
(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them...
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