No. 91

-126 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

JOELV. BALLENGER, Plaintiff, Counter
-Defendant,and Appellant,-vsNORTHERN LIGHTS, INC., Defendant, Counter
-Claimant and Respondent.

APPEAL FR O

M: District court of the Twentieth Judicial District, In and for the County 

### of Sanders, The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD: For Appellant: Claude I. Burlingame, Attorney at Law, Thompson Falls, Montana: John D. Greef, Attorney at Law, Hamilton,Montana. For Respondent: Gary R. Christiansen:Warden, Christiansen,Johnson & Berg, Kalispell, Montana. a'

### . . i ..,- .#i 

## AUG151991 Submitted on briefs: July 16, 1991

' 

### ClerkJustice R. C. McDonough delivered the Opinion of the Court. Joel Ballenger appeals from an order of summary judgment granted by the District Court of the Twentieth Judicial District, Sanders County, in favor of defendant, Northern Lights, Inc. The District Court held that Northern Lights owed no duty to Ballenger to provide electricity for his irrigationpumps. We affirm. The sole issue on appeal is: Whether the District Court erred in determining thatNorthern Lights had no duty to provide electricity for Ballenger's irrigationpumps. Joel Ballenger has been a farmer

-rancher in Sanders County, Montana, for over 30 years. The area where Ballenger lives is provided electricity solely by Northern Lights, an electric cooperative. Northern Lightshas its office in Sandpoint, Idaho, and it serves an area comprising portions of western Montana and northern Idaho. Ballenger has four separate accounts with Northern Lights. Two accounts representhis residential electricity consumptionand the othertwo involveelectricityutilized by his irrigationpumps. When Ballenger set up the accounts for his irrigation pumps, he entered into a "Service Order and Membership Application" that stated that no electricitywould be provided until he paid all past due balances. At the end of the 1984 irrigation season, Ballenger owed $3,737.50 for services rendered in 1982, 1983, and 1984 by Northern Lights. Althoughhe obtained an operating loan,he chose not to use any of these funds to pay the past due balance. 2In 1985, Montana experienced a severe drought. On July 8, 1985, Ballenger contacted Northern Lights and informed them that he needed power immediately so that he could irrigate his crops. When Northern Lights refused,he offered apartial cash payment of $2,000 and a lien on his crops. Northern Lights continued in its refusal to provide power, and Ballenger's crops failed for lack 

### of water. Ballenger filed a lawsuit alleging that Northern Lights unreasonably refused to energize his irrigation pumps and sought damages forhis lost crop. Northern Lights counterclaimed, seeking payment on thebalance due on Ballenger's account. On December 17, 1990, the District Court granted summary judgment in favor of Northern Lights. Ballenger appeals that portion of the court's order which dismissed his claim for damages to his crops. Ballenger maintains that the District Court erred in granting summary judgment. We disagree. Summary judgment is proper under Rule 56(c), M.R.Civ.P., when the movant shows that there is no genuine issue as to any fact deemed material in light 

### of the substantive legal principles entitling the movant to judgment as a matter of law. A11 reasonable inferencesmust be drawn in favor of the party opposing the motion. In making its determination on whether to grant a motion for summary judgment, the court must consider the entire record. Smith 

### v. Barrett (1990), 242 Mont. 37, 40, 788 P.2d 324, 326. There are no issues of material fact involved here.

3

### As stated above, Ballenger entered into a "Service Order and Membership Application" when he set up the accounts for his irrigation pumps. This contractual instrument provided, and Ballenger agreed, that the Cooperative would not provide electricity if he had balances owing on his irrigation accounts. Ballenger maintains that this explicit provision was modified by
a separate document which is referred to as Member Service Policy 

### No. 402. This document provided that Northern Lights may allow time to pay bills in installmentswhen special circumstancesarise "such as: death in the family, serious illness, life sustaining equipment, the elderly and the handicapped." This provision, according to Ballenger, should have been applied to his case and he should have been allowed topay his balance in installments. Ballenger relies upon Howe 

### v. Big Horn Electric Cooperative (1983), 206 Mont. 297, 670 P.2d 936, to support this argument. The adoption and implementation of all rules must be done fairly and in a reasonable manner with proper regard for the rights of the member and his property. 

# w, 670 P.2d at 938. Relying on this case, Ballenger argues that Northern Lights unreasonably refused to applyMember Service PolicyNo. 402 to his special circumstances. He maintains that the Cooperative, 

### in accordance 

### with its duty to act reasonably, should have accepted his offer of partial payment and a lien on his crops. We disagree. From the depositions it is clear that Member Service Policy No. 402 applied only to residential accounts and
never to irrigation accounts.
4Second, as the District Court found, and as is clearly stated in

## m,the policy of Northern Lights allowing disconnection of service for nonpayment of feeswas reasonable. See,

# m,670 P.2d at 938. Moreover, Northern Lights' implementation of this policy under these circumstanceswas reasonable. Ballengerwas over three years overdue on his account. Despite opportunities topay off the balance, Ballenger chosenot to do so. Instead,he chose to gamble
on the fact that he would not need to irrigate in 1985. When it became clear that he would have to irrigate,he attempted to enter into a deal with Northern Lights, offering them a lien on his crops. He has presented no authority that requires a cooperative to accept a crop lien as security. Under these agreed facts, Northern Lights simply had no duty 

### to extend further credit to an overdue delinquent account. Finally, Ballenger argues that at the time he asked the Cooperativeto supply electricity tohis accounts,hehad $1,914.90 worth of capital credits. There is no evidence, however, that he offered those credits at that time or that they were discussed. Therefore,we donot consider the existence of those credits in our determination. In short, we find the only substantive legal issue provided by this case 

### is whether Northern Lights reasonably refused to provide power to Ballenger's pumps. In light of the clear contractual language contained 

### in the ServiceOrder and Membership Application, and the agreed facts, the only conclusion which can

5be reached is that such action was reasonable. Summary judgment under Rule 56(c), M.R.Civ.P., was properly granted. Affinned.

* Justice 

### / We Concur: ,/ 

# n

6

### August 15, 1991 CERTIFICATE

### OFSERVICE 

### Iherebycertifythat thefollowing orderwas 

### sentby United Statesmail,prepaid,to

### the following

### named:
ClaudeI. BurlingameandJohnD.Greef AttorneysatLaw 

### P.O. Box9 ThompsonFalls,

### MT 59873 GaryR. Christiansen Warden,Christiansen, Johnson &

### Berg 

### P.O. Box3038 Kalispell,MT 59903

-3038 EDSMITH CLERK

### OFTHESUPREMECOURT STATEOFMONTANA