Rogers v. Swingley, 83-302
| Decision Date | 20 October 1983 |
| Docket Number | No. 83-302,83-302 |
| Citation | 206 Mont. 306,40 St.Rep. 1676,670 P.2d 1386 |
| Parties | Glenn E. ROGERS, Plaintiff, Counterclaim Defendant and Respondent, v. Douglas J. SWINGLEY and Nelda J. Swingley, husband and wife, Defendants, Counterclaim Plaintiffs and Appellants. |
| Court | Montana Supreme Court |
Hartelius & Ferguson, Great Falls, for defendants, counterclaim plaintiffs and appellants.
M. Richard Gebhardt, Ronan, Robert Emmons, Great Falls, for plaintiff, counterclaim defendant and respondent.
Douglas L. Swingley and Nelda J. Swingley, defendants, appeal from the summary judgment of the District Court, Eighth Judicial District, Cascade County, granted in favor of Glenn E. Rogers, plaintiff. We find the District Court erroneously granted summary judgment. The judgment is hereby reversed and the case remanded to the District Court.
Douglas L. Swingley and Nelda J. Swingley first met Glenn E. Rogers and his wife at the International Mink Show held in Madison, Wisconsin, during January 1978. Both the Swingleys and the Rogers were then in the business of raising mink. The Rogers were operating a mink ranch in Ronan, Montana, and the Swingleys had begun operation of a mink ranch west of Great Falls, Montana.
Glenn E. Rogers had begun his mink ranching operation through a mink leasing arrangement and he suggested that the Swingleys might also be able to benefit from an arrangement of this kind. The Swingleys agreed and in early December 1978 the parties entered into a written lease agreement whereby Rogers agreed to lease 600 pastel female mink and 120 male mink to the Swingleys. In return, the Swingleys agreed to pay Rogers one kit per female mink annually, or one-fourth of the annual kit crop, if the total female mink leased produced an average of four kits. The term of the lease was from November 15, 1978 to November 15, 1980.
At or about the time the parties entered into the lease agreement, Rogers strongly suspected that at least a small percentage of those mink leased to the Swingleys were infected with Aleutian Disease (AD). This disease affects the productivity of the mink and impairs their resistance to other diseases.
Douglas L. Swingley eventually became aware of greater than normal losses among the leased mink and their kits and a lower than normal productivity rate among the female mink. Because of these problems, the parties agreed to a payment of $5,000 on the lease for the first year rather than a payment of mink. The problems continued into the second year and Swingley did not make the final payment under the lease.
To ensure payment, Rogers then sought a temporary restraining order preventing the Swingleys from selling any of the mink or mink pelts. The parties then attempted to reconcile their differences by replacing the lease with a promissory note for $49,750 and a mortgage as security for the promissory note. The promissory note contained five paragraphs: the first four paragraphs set forth the terms for payment of the obligation and the last paragraph contained a release whereby "the makers of this note hereby covenant and agree to release GLENN E. ROGERS and TREASURE STATE MINK RANCH from any and all future liability which may arise out of the said mink lease."
The Swingleys failed to make the first payment on the promissory note and on June 3, 1981, Rogers filed a complaint asking for judgment against the Swingleys for the full amount of the promissory note and for foreclosure of the mortgage securing the promissory note. The Swingleys filed an answer and a counterclaim in which they alleged that the promissory note and mortgage were procured through fraud and that Rogers was liable to them for various damages. Although Rogers has alleged that he informed the Swingleys of the presence of AD in the leased mink soon after the lease was signed, the Swingleys claim that they never knew that the leased mink were infected with AD and that they would not have signed the promissory note containing the release if they had known that the mink were infected.
Rogers moved for summary judgment following discovery. The District Court granted summary judgment for Rogers, awarded him the full amount of the promissory note, and ordered the mortgage foreclosed.
The sole issue on appeal is whether summary judgment was properly awarded to Rogers. More specifically, viewing the record in the light most favorable to the Swingleys, is there a genuine issue of material fact?
Summary judgment under Rule 56(c), M.R.Civ.P., is proper only if the record discloses no genuine issue of material fact as a matter of law. Abell v. Traveler's Insurance Co. (Mont.1983), 663 P.2d 335, 40 St.Rep. 738; Downs v. Smyk (Mont.1982), 651 P.2d 1238, 39 St.Rep. 1786.
This Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all the facts which are deemed material in light of those substantive principles which entitle him to a judgment as a matter of law. Krone v. McCann (Mont.1982), 638 P.2d 397, 39 St.Rep. 10; Big Man v. State (Mont.1981), 626 P.2d 235, 38 St.Rep. 362. To satisfy this burden, the movant must make a clear showing as to what the truth is so as to exclude any real doubt as to the existence of any genuine issue of material fact. Kober & Kryss v. Stewart & Billings Deaconess Hospital (1966), 148 Mont. 117, 417 P.2d 476; 6 Moore's Federal Practice p 56.15.
In addition, all reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party who opposes summary judgment. Abell v. Travelers Insurance Co. (Mont.1983), 663 P.2d 335, 40 St.Rep. 335; Downs v. Smyk (Mont.1982), 652 P.2d 1238, 39 St.Rep. 1786; Brown v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (Mont.1982), 640 P.2d 453, 39 St.Rep. 305.
Here, the District Court failed to properly apply these principles. In its finding of fact no. 4, the District Court stated:
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