No. 12348 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

THE PACK RIVER COMPANY, a corporation, Plaintiff and Respondent,

DONALD W. YOUNG, d/b/a FLATHEAD LAKE REALTY, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, Honorable Emet Glore, Judge presiding. Counsel of Record: For Appellant: Mulroney, Delaney and Dalby, Missoula

# ,Montana. Dexter L. Delaney argued, Missoula

# ,Montana. For Respondent: Turnage and McNeil, Polson, Montana. C. B. McNeil argued, Polson, Montana.

Submitted: May 

### 30, 1973

Decided:

## JUN 

## 1 

## 51973 Filed:

## JUN 15

## 1973Mr, Chief Justice James T. Harrison delivered the Opinion of the Court.

This 

### is an appeal by defendant Donald W, Young, d/b/a Flathead Lake Realty, from a summary judgment granted by the district court of Lake County on June 20, 1972, in favor of plaintiff The Pack River Company. On or about March 31, 1971, Young represented toPack Xiver that he was the agent for the owners of certain Flathead Lake property known as the Bird Point property and that he had

a listing from the owners for the saleof the property. On March 31, 1971, Young, as agent for the owners of the Bird Point property, prepared a Receipt and Agreement to Sell and Purchase, a copy of which was attached toplaintiff's cornfl 11 plaint asExhibit A and incorporated by reference inyoung's answer and cross complaint. Pursuant to the Receipt and Agreement, Pack River deposited the sum of $5,000 with Young 

### as earnest money. The Receipt and Agreement to Selland Purchase contains a provision that if the sellerdoes not approve the salewithin ten days the earnest money would be returned to the purchaser on demand. Neither Pack River nor Young have any copy of such Receipt and Agreement signed by the owners of the Bird Point property, On or about April 19, 1971, Young, as agent for the owners of the Bird Point property, prepared another Receipt and Agreement to Sell and Purchase, a copy of which was attached to Pack River's complaint as Exhibit "B" and incorporated by reference in~oung's answer and cross complaint. This Receipt and Agreement refers tothe same Bird Point pr,operty,the same total consideration, and recites the same earnest money payment of $5,000 by Pack River; it differs from Exhibit flAflonly inthe proposed down payment and payment schedule. Exhibit "B", likeExhibit "A", contains a provision that if the seller does not approve the sale within ten days the earnest money was tobe returned to thepurchaser on demand, Neither Pack River nor Young have a copy of thisReceipt and Agreement signed by the owners of the Bird Point property as sellers, 

### On May 27, 

### 1971, Young prepared an Addendum toAgreement,

a copy of which was attached to Pack River's complaint as Exhibit "C" and incorporated by reference inYoung's answer and cross complaint. The Addendum states, inpart, that upon approval of allparties at interest it shallbe made a part of the April 19, 

### 1971agreement. Neither Pack River nor Young have any copy of such Addendum toAgreement signed by the owners of the Bird Point property. On July 13, 1971, and again on July 23, 1971, Pack River demanded that Young return the $5,000 earnest money pursuant toExhibits "A" and 

### "B". In reply, Young demanded payment of $15,000 for a realtor's commission. The solequestion on appeal 

### is whether the district court

was correct ingranting Pack River's motion for summary judgment. In 

### itscomplaint Pack River seeks return of $5,000 earnest money deposited with Young as a realtor and young's cross complaint seeks recovery of $15,000 as a realtor's commission; therefore the pleadings of both parties established thatboth claims arebased upon a proposed saleand purchase of real estate. Section 13-606, W.C.M. 1947, provides inpertinent part: "What contracts must be inwriting. The following contracts areinvalid, unless the same, or some note ormemorandum thereof, be inwriting and subscribedby the party tobe charged, orhis agent:

"5. An a reement authorizing or employing an agent or%rbkertopurchase or 

### sellreal estate for compensation ox a commission. II Section 74-203, R.C.M. 1947, provides:

I1Contract for sale of realproperty. No agreement for the sale of real property, or any interest therein, isvalid, unless the same, or some note or memorandum thereof, be inwriting and subscribed by the party tobe charged, orhis agent, thereunto authorized, inwriting; but this does not abridgethe power of any court tocompel the specific performance of any agreement for the saleof realproperty incase of part performance thereof." Pack River as the movant for the summary judgment had the burden of proving there was no genuine issue of material fact. On January 

### 5, 1972, the district court ordered Young to produce any and allwritten documents purporting to establish him asthe agent for the owners of the Bird Point property; any and allwritten instruments to support his claim of having a listing for the sale of the property; and any copy of Exhibit

I' 11

C signed by the owners of Bird Point property, Young did not produce any of the documents inresponse to the district court's order, thus wholly failing tomeet the statutoryrequirements of the statute of frauds. This Court finds that the pleadings, answers tointerrogatories, response toorder forproduction, and hearing on the motion for summary judgment satisfied Pack River's burden of establishing therewas no genuine question as to any material fact. The district court was correct ingrantingjudgment for Pack River as a matter of law. Young failed toestablishby material and substantial evidence that therewas a genuine issue as tomaterial fact, Mager

v. Tandy, 146Mont. 531, 537, 410 P,2d 447. In his memorandum in opposition tomotion for summary judgment, Young recited two arguments purporting to meet his burden of showing a genuine question as tomaterial fact. young's first argument was that there was a written memorandum of employment, which was Exhibit "C" attached toPack River's complaint and incorporated inyoung's answer and cross complaint. In response this this argument, Pack River states that Exhibit "C" on 

### its face requires approval of allparties at interest, including the owners of the Bird Point property, and that upon approval the Addendum shallbe made a part of the April 

### 19, 1971agreement (Exhibit 

### "E"). Although Young claimed under oath tohave 

### a copy of the Addendum signed by the owners of the Bird Point property, none was ever produced.Concerning young's second argument, the record 

### isabsolutely devoid of any pleading, interrogatory, deposition, orany evidence which could be considered by the district court that there had been any performance or part performance of an alleged contract of employment. Both the district court memorandum and young's brief on appeal contain a statement of counsel, unsupported by any pleadings or evidence in the record, that there

was a performance of the alleged contract. Young therefore wholly failed tomeet the requirements as 

### set forthby this Court in Sillowayv. Jorgenson, 146Mont. 307, 310, 406 P.2d 167, that the party opposing a motion for summaryjudgment must present material and substantial facts inproper form and that mere conclusions

### willnot suffice, Young did not produce any pleading or evidence to support his argument and therefore Brown v. Thornton, 150 Mont. 150, 155, 432 P.2d 386, isauthority for affirming the summary judgment: "Plaintiff argues on appeal that had he been allowed togo totrialhe would have presented further proof that defendants were co-owners of the property and made an agreement topay for the materials. Notice was given and a hearing had before the motion for summary judgment was granted and againnotice was given and a hearing had before 

## lai in tiff's motion tovacatejudgment was denied. Nowhere in the record 

### is there any hint of this further proof. When on the record there 

### isno genuine issue as toany material factbefore the court theburden ison the party opposing the motion for summary judgment topresent facts of a material and substantialnature raising

### a genuine issue. The trialjudge has no duty toanticipate possible proof that might be offered. To impose such a duty would be todemand clairvoyance not ~ossessed by even a trialjudge. Silloway v. Jorgenson, 146Mont. 307, 406 P. 2d 167. 

# *** As to the requirement that therebe no genuine issue as to any material fact the granting of the motion for summaryjudgment was correct. 11 The favor order o of Pack qurtgranting summar judgment 

# I"We Concur;



## \ Associate ~ustices.