Yetter v. Kennedy, 13812
| Decision Date | 21 November 1977 |
| Docket Number | No. 13812,13812 |
| Citation | 175 Mont. 1,571 P.2d 1152,34 St.Rep. 1373 |
| Parties | Helga Iris YETTER, Plaintiff and Respondent, v. Charles C. R. KENNEDY and Rebecca Z. Kennedy, husband and wife, Defendants and Appellants. |
| Court | Montana Supreme Court |
Larry W. Moran (argued), Bozeman, for appellants.
Landoe, Gary & Planalp, Joseph D. Gary (argued), Bozeman, Huppert & Swindlehurst, Livingston, for respondent.
Plaintiff brought suit to have an option agreement for the purchase of certain real property released and to recover damages. The jury entered a special verdict determining that the option agreement should not be released and finding no damages. Plaintiff moved for and received a judgment notwithstanding the verdict terminating defendants' rights to the option agreement. Defendants filed notice of appeal. Plaintiff subsequently moved to dismiss the appeal on the grounds defendants failed to transmit a transcript to the Supreme Court.
Although this Court received no transcript, we have discerned the following facts from the trial court exhibits submitted to this Court:
On October 13, 1967, plaintiff Helga Iris Yetter entered into an agreement with J. Angus Christensen, of Salem, Utah, for the sale of certain real property near West Yellowstone, Montana. Incorporated in this agreement was a first option to purchase certain other real property upon such terms and conditions as Yetter offered it to any third party. This option was to extend "for any reasonable period of time up to twenty years".
On December 1, 1967, plaintiff filed with the Gallatin County Clerk and Recorder a standard form contract denominated an "Option Contract". In it plaintiff agreed to hold the real property she had subjected to the option, subject to the order of Christensen until December 15, 1987, and to transfer it to him "at and for the price and upon such terms and conditions as first party (Helga Yetter) may offer said property to any third party, such option to continue until December 15, 1987, and allowing a period of sixty days to meet such terms and conditions * * *."
On November 27, 1967, Christensen assigned to defendants, Charles C. R. and Rebecca Z. Kennedy:
"* * * all of his right, title and interest in and to that certain Option Agreement made and executed between HELGA IRIS YETTER of Livingston, Park County, Montana, and the said party of the first part (J. Angus Christensen), dated November 12, 1967 * * * under the covenants, conditions and terms of said Option."
On August 21, 1974, plaintiff entered into an agreement with a partnership, which we shall refer to as the "Povah Partnership", for the sale of approximately twenty-seven acres of the real property subject to the option provision. Pursuant to that agreement, plaintiff gave written notice to defendants of the terms and conditions of the Povah Partnership's offer.
Although defendants informed plaintiff they intended to purchase the real property, they did not make any payment within the sixty day period provided in the December 1, 1967 option contract. Four months later, they were still asking for further time in which to make payment. At the same time they refused to release their option agreement even though the sixty day period had elapsed.
On February 14, 1975, the Povah Partnership withdrew its offer and requested the return of its down payment because of defendants' failure to release the option agreement.
At no time did defendants tender any purchase money as they initially promised. After learning the Povah Partnership had withdrawn its offer, they refused to release the option agreement.
On April 3, 1975, Helga Yetter filed suit against Charles C. R. and Rebecca Z. Kennedy seeking cancellation of the option agreement, general damages resulting from loss of the sale and impairment of her credit, plus punitive damages for slandering her title. On March 10, 1977, the jury returned a special verdict finding:
(1) That plaintiff had notified the defendants of an offer from a third party to purchase the real property in question.
(2) That plaintiff had notified the defendants of the offer on September 13, 1974.
(3) That the sixty day period in which to meet the terms and conditions of the Povah Partnership's offer expired November 12, 1974.
(4) That defendants should not be compelled to release the "Option Agreement".
(5) That defendants had not interfered with the performance of the contract of sale between Yetter and the Povah Partnership.
The jury did not award the plaintiff general or punitive damages. The District Court entered judgment in accord with the special verdict.
Plaintiff timely filed a motion for judgment notwithstanding the verdict, requesting the District Court to enter judgment declaring defendants had breached their option agreement and to order them to release the "Option Agreement". The District Court granted plaintiff's motion.
Although defendants filed notice of appeal on April 12, 1977, they never ordered a transcript of the trial from the court reporter, nor was one ever transmitted to this Court for purposes of the appeal. In addition, they failed to file and serve upon the plaintiff within ten days after filing notice of appeal, statements indicating they did not intend to transmit any portion of the transcript to this Court and enumerating the issues they intended to present on appeal.
On July 1, 1977, plaintiff filed a motion with this Court to dismiss defendants' appeal due to their failure to order a transcript of the trial proceedings and to transmit it to this Court. We grant plaintiff's motion.
Rule 10(a), M.R.App.Civ.P., provides that the record on appeal, including any transcript necessary for the determination of the appeal, shall be transmitted to the Supreme Court within 40 days after filing a notice of appeal, unless that time is shortened or extended by order of either the District Court or the Supreme Court. Although the District Court file and the exhibits from the District Court trial were sent to this Court, the trial transcript was not included. Nor was any order to extend the time to transmit the transcript requested or made.
Rule 9(b), M.R.App.Civ.P., delineates the duties of the appellant in regard to ordering a transcript of the trial proceedings:
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