NO. 94-392

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

JEAN Y. OWENS & LARRY T. OWENS,

Plaintiffs/Counterclaim Defendants

and Appellants,

-"-

RODERICK J. MCNEIL, individually;

BIOLOGICAL EXTRACTION TECHNOLOGIES, INC.:

and HESARCO, a Utah mining corporation,

Defendants/Counterclaim Plaintiffs

and Respondents,

ROD MCNEIL, d/b/a Montana Refining Research,

Plaintiff,

HIGH LONESOME MINING, INC.,

a Montana Corporation,

Defendant.

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Powell,

The Honorable Ted Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Patrick M. Springer, Kalispell, Montana

For Respondents:

David Dalthorp, William P. Driscoll, Gough,

Shanahan, Johnson & Waterman, Helena, Montana

Filed:

Submitted on Briefs: December 22, 1994

Decided: March 30, 1995
Justice James C. Nelson delivered the Opinion of the Court.

Plaintiffs Jean and Larry Owens (hereinafter Owens), appeal

from an opinion and order of the Third Judicial District Court,

Powell county, granting Defendants', Rod McNeil, for himself and

for Biological Extraction Technologies and HESARCO, (hereinafter

McNeil) motion for summary judgment. The Owens also appeal the

court's denial of the motion to intervene filed by certain

shareholders of High Lonesome Mining, Inc. (hereinafter HLM).

We affirm.

The Owens, raise three issues on appeal:

1. Whether the District Court erred in granting

McNeil's motion for summary judgment?

2 . Whether the District Court erred in finding that

the contract dated July 26, 1992, was a valid

contract for deed?

3 . Whether the District Court erred in denying the

motion to intervene?

This is a consolidated action consisting of a quiet title

action, which was filed by McNeil on November 12, 1992, and an

action for unlawful detainer, which was filed by the Owens on

January 27, 1993. Both actions concerned a dispute over the

ownership of a metal refining plant, including the building,

equipment and grounds (hereinafter the Deer Lodge facility)

Although this case contains many convoluted facts, the genuine

issues of material fact are not in dispute. For clarity, we first

address the facts relating to McNeil's involvement with the

property at issue, and then set forth the Owens' involvement with

the property at issue.
On July 26, 1992, Defendant, Rod McNeil, and Marty Puryer,

president of HLM, entered into a written agreement whereby McNeil,

acting as sole proprietor of Montana Refining Research (hereinafter

MRR), agreed to purchase the Deer Lodge facility for the sum of

$120,000. The terms required a $12,000 down payment, with the

balance due in two years. Upon full payment of the $120,000, HLM

was required to transfer full unencumbered title to the Deer Lodge

facility to MRR. It is undisputed that McNeil paid the $12,000

down payment.

Jean Owens became a shareholder of HLM in July 1991, by

investing $10,000 in the company. Jean Owens subsequently made two

additional investments in HLM totaling $10,000. In September 1992,

Ms. Owens loaned HLM $50,000, so that HLM could make payments on

the Deer Lodge facility which was due under their contract with

Base Metal and Energy (hereinafter BME). (HLM had contracted with

BME to buy the Deer Lodge facility.)

In October of 1992, Larry Owens, a HLM shareholder, notified

Jean Owens that a dispute existed concerning the ownership of the

Deer Lodge facility as a result of the July 26, 1992 contract

between McNeil and Puryer. Subsequently, Ms. Owens decided to take

title to the Deer Lodge facility by paying the remaining amount due

under Hm~ s contract with BME. Accordingly, HLM executed a

warranty deed to Jean Owens on November 10, 1992, three months

after HLM sold the property to McNeil through the July 26, 1992

contract.

McNeil filed a quiet title action on November 12, 1992, and

3
the Owens filed an unlawful detainer action on january 27, 1993.

McNeil filed a motion to consolidate the two cases arguing that

both cases concerned the issue of the ownership of the property.

After considering the parties' briefs and arguments, the court

consolidated the two cases by order dated August 19, 1993. McNeil

filed a motion for summary judgment on December 30, 1993. On

February 16, 1994, certain HLM shareholders filed a motion to

intervene. A hearing on the motions was held April 14, 1994, and

the District Court issued its opinion and order on April 14, 1994,

grant,ing McNeil's motion for summary judgment, and denying the

shareholder's motion to intervene on the grounds that the motion

was moot. The Owens appeal from this order.

Summary judgment is appropriate when there is no genuine issue

of material fact, and the moving party is entitled to judgment as

a matter of law. Rule 56(c), M.R.Civ.P. This Court's standard in

reviewing a summary judgment order is the same as that utilized by

the District Court. That is, we use the same criteria initially

used by the District Court under Rule 56, M.R.Civ.P. Minnie v.

City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

1. SUMMARY JUDGMENT

The Owens challenge the validity of the July 26, 1992 contract

alleging that HLM did not consent to enter the contract because of

fraud. However, the Owens did not specifically plead or allege the

elements of fraud at the District Court level.

To avoid summary judgment on the issue of contract fraud, the

party alleging fraud must make out a prima facie case for each of

4
the nine elements of fraud. Avco Financial Services V. ForemanDonovan (1989), 237 Mont. 260, 263, 772 P.2d 862, 863-64. Here the

Owens not only failed to make a prima facie case for the nine

elements of fraud, but failed to raise the issue of fraud at the

District Court level. Accordingly we will not consider this issue

which was raised for the first time on appeal. Bengala v.

Conservative Savings Bank (19911, 250 Mont. 101, 108, 818 P.2d 371,

375.

2. CONTRACT FOR DEED

The Owens claim the District Court erred in finding that the

July 26, 1992 contract was a valid contract for deed. The Owens

argue that the agreement at best is an executory contract, which

was intended to be formalized at a later date. The District Court

however, found that the July 26, 1992 contract met all the elements

of a binding contract pursuant to § 28-2-102, MCA. The court

ruled:

The Court has carefully reviewed the document in question

and finds that there are identifiable parties capable of

contracting. Plaintiffs have never contended that Puryer

was not the president of HLM or that he did not have the

authority to enter into the contract. Even if it's

admitted that Plaintiffs and the directors of HLM did not

know that Puryer had executed the contract, it is not

invalidated. There is no proof that the consent of both

parties was not freely given nor that the object and

purpose of the contract was not lawful. Finally, there

is not allegation or proof that the consideration for the

contract was not sufficient. McNeil has paid $12,000 on

the $120,000 contract price with the balance due at a

definite future date.

1n addition, a contract is not invalid simply because it is

executory, if it otherwise meets the requirements of a valid

contract. An executory contract is simply a contract whose object

5
has not been fully performed. Section 28-2-104, MCA. Because the

July 26, 1992 contract meets all of the requirements for a valid

contract, we hold that the District Court did not err in concluding

that the July 26, 1992 contract was a valid contract for deed

3. MOTION TO INTERVENE

The Owens maintain that the interveners should have been

allowed to intervene. However, the Owens do not have standing to

raise this issue on appeal.

The motion to intervene was made by attorney Terry Wallace on

behalf of his clients who were not parties to the instant action.

The Owens were not parties to the motion to intervene. The

interveners did not appeal the denial of their motion to intervene,

rather, the Owens attempt to do so for them.

According to Rule 1, M.R.App.P., only a party aggrieved may

appeal from a judgment or order

A party is aggrieved when it has a "direct, immediate and

substantial interest in the subject which would be

prejudiced by the judgment or benefitted by its

reversal." Conversely, a party who is not aggrieved by

a judgment may not appeal from it. [Citations omitted. 1

Branstetter v. Beaumont Supper Club, Inc. (1986), 224 Mont. 20, 25,

727 P.2d 933, 936.

The parties who filed the motion to intervene were the parties

aggrieved by the court's denial of the motion to intervene. The

Owens were not parties to that motion and therefore cannot appeal

from the court's order dismissing the motion. Accordingly we hold

that the Owens do not have standing to appeal the motion to

intervene.

6
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to the

West Publishing Company.

AFFIRMED

-.
prepaid, to the

COURT

-