No. 87-22 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

CARL C. PAYNE, 

Plaintiff and Appellant, 

-vsALAN STRATMAN; WESLEY KROEKFR; 

BRIAN KROEKER; ABIE W. JANSEN; 

JERRY HERZENBERG; H.H. CHAMPLIN; 

JOHN REGIER; All General Partners 

of and doing business as GOLDEN 

EAGLE LAND COMPANY, an Oklahoma 

General Partnership; SECURITY BANK, 

N.A.; JAMES STFATMAN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gerald J. Neely, Billings, Montana 

For Respondent: 

Wright, Tolliver & Guthals; K.D. Tolliver, (Golden 

Eagle Land), Billings, Montana 

Herndon, Harper & Munro; Rodney T. Hartman, (Security 

Bank), Billings, Montana 

Anderson, Edwards & Molloy; A. Clifford Edwards 

(Stratman), Billings, Montana 

DEC I 6 1987 

Filed: 

Submitted on Briefs: Aug. 27, 1987 

Decided: December 16, 1987 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Plaintiff Carl C. Payne appeals an order from the 

Thirteenth Judicial District, Yellowstone County, granting 

summary judgment in favor of defendants. We affirm. 

Two issues are presented for our review: 

1. Did the District Court err when it granted summary 

judgment in favor of defendants Golden Eagle Land Company and 

Security Bank? 

2. Did the District Court err when it granted summary 

judgment in favor of defendant James Stratman? 

On November 3, 1975, Carl C. Payne, a licensed Montana 

real estate broker, entered into a written listing agreement 

with Golden Eagle Land Company, an Oklahoma general partnership (Golden Eagle), to sell the Larb Hills Ranch (Ranch). 

The Ranch is located in Phillips County. Upon sale, Payne 

was to receive a 6 percent commission. On July 7, 1976, 

Golden Eagle entered into a contract for deed with purchasers 

R. L. Nelson, Gordon B. Carlson and Melvin J. Ganshop. The 

contract for deed required the purchasers to buy $100,000 of 

certi-ficates of deposit (certificates) . The certificates 

were to be deposited with an escrow agent, defendant Security 

Bank. The escrow instructions required the bank to transfer 

the certificates to seller Golden Eagle in the event of 

default. 

The escrow instructions also required the Bank to pay 

appellant Payne's commission in installments contingent upon 

contract payments. Payne was paid $34,000 following the 

August 1, 1976, payment by purchasers. 

In February 1977 Golden Eagle approached the Bank about 

securing a loan. The Bank responded favorably but required 

the certificates as collateral. Following negotiations, 
Payne and Golden Eagle entered into a written agreement 

subordinating their interest in the certificates. 

In November 1977 the purchasers defaulted. Pursuant to 

the subordination agreement, appellant did not receive a 

commission. Appellant Payne subsequently brought an action 

against the Rank and Golden Eagle seeking recovery of the 

real estate commission. 

Payne also brought an action against James Stratman. 

Stratman had assisted Payne in finding the purchasers. Earlier Payne had entered into a contract with Stratman to divide 

the cornnlission, with $10,200 paid to Stratman. Payne claimed 

that Stratman falsely represented that he was a licensed 

Colorado real estate broker. Payne alleged fraud and false 

representation and sought cancellation of commission splitting agreement and return of monies previously paid and a 

statutory penalty. Section 37-51-323, MCA. Golden Eagle 

counterclaimed against appellant Payne for the return of the 

$34,000 real estate conm~ission. 

On October 9, 1980, the District Court granted summary 

judgment to defendant Golden Eagle. Six years later, on 

August 12, 1986, the District Court granted sununary judgment 

to James Stratman and to Payne on Golden Eagle's 

counterclaim. 

Issue 1 

Did the District Court err when it granted summary 

judgment in favor of defendants Golden Eagle and Security 

Bank? 

On May 13, 1980, Golden Eagle moved for sununary judgment on Payne's complaint. Payne failed to respond with 

brief or affidavit by November 9, 1980, and the District 

Court granted Golden Eagle's motion. Affidavits placed on 

record by Golden Eagle imposed upon Payne the duty of raising 
a genuine issue of material fact. Kronen v. Richter (Mont. 

1984), 683 P.2d 1315, 1317, 41 St.Rep. 1312, 1315. We have 

consistently held that when the moving party adequately 

supports a motion for summary judgment, the burden shifts to 

the opposing party to present the court with evidence sufficient to raise a genuine issue of material fact. National 

Gypsum Co. v. Johnson (1979), 182 Mont. 209, 212, 595 P.2d 

1188, 1189; Rule 56 (c) , M.R.c~v.P. 

Rule 56 (e) , M.R.Civ.P., provides in pertinent part: 

. . . When a motion for summary judgment 

is made and supported as in 

this rule, an adverse party may not rest 

upon the mere allegations or denials of 

his pleading, but his response, by 

affidavits or as otherwise in this rule, 

must set forth specific facts showing 

that there is a senuine issue for trial. 

- If - he - does - not - so respond, sununary 

udgment, if =propriate, shall be 

:ntered agaEst - him. [Emphasis added7 

Clearly Payne failed to come forward with a material 

issue of fact. Earlier we held that when a party moves for 

sununary judgment and the opposing party fails to respond, 

summary judgment is proper. "[A] party who ignores the 

judicial system and slumbers on his rights, does so at his 

own peril." Bedford v. Jordan (Mont. 1985), 698 ~.2d 854, 

On November 11, 1980, nearly a month after summary 

judgment was granted, Payne filed a responsive brief. Payne 

contends that affidavits in opposition were unavailable. 

Therefore, Payne argues the court erred when it failed to 

grant a continuance pursuant to Rule 56(f), M.R.Civ.P. 

A review of the record does not support Payne's argument. Payne could have, but failed to, file (1) a responsive 

brief, (2) an attorney affidavit or (3) affidavits pursuant 

to Rule 30(e), M.R.Civ.P. Further, the record clearly 
indicates that Payne's commission was contingent on the 

failed November 1, 1977, payment and that Payne voluntarily 

subordinated his right to a commission. The District Court 

properly awarded sununary judgment against Payne. 

Issue 2 

Did the District Court err when it granted summary 

judgment in favor of defendant James Stratman? 

On August 1, 1976, appellant Payne paid Stratman 

$10,200 pursuant to a written fee-splitting agreement. On 

December 19, 1978, two years and four months later, Payne 

filed a complaint against Stratman. Payne alleged that 

Stratman had misrepresented himself as a licensed Colorado 

real estate broker in violation of § 37-51-323, MCA. Payne 

sought: (1) cancellation of the fee-splitting agreement; (2) 

return of the commissions paid; and (3) a statutory penalty. 

Stratman responded by affidavit that he had not represented 

himself as a licensed real estate broker. Stratman also 

moved for summary judgment. 

Following hearing, the District Court, on December 13, 

1983, granted Stratman's motion for summary judgment. The 

court held the applicable statute of limitations for a cause 

of action under the Real Estate Licensing Act is two years, 

pursuant to S 27-2-211, MCA. The court found that Payne's 

complaint was filed over two years after the alleged tort. 

Payne contends that Stratman's alleged misrepresentation constitutes an active concealment of a material fact. 

Therefore, the statute of limitations should be tolled. Much 

v. Sturm, Ruger & Co. (D. Mont. 1980), 502 F.Supp. 743, 745. 

We have consistently held that in non-malpractice tort 

actions, the statute of limitations begins to run on the date 

of plaintiff's injury. Kerrigan v. O'Meara (1924), 71 Mont. 

1, 7, 227 P. 819, 821. ''[Tlhe fact that a party with a cause 
of action has no knowledge of his rights, or even the facts 

out of which the cause arises, does not delay the running of 

the statute of limitations until [the party] discovers the 

facts or learns of his rights under those facts." Bennett v. 

Dow Chemical (Nont. 1986), 713 P.2d 992, 994, 43 St.Rep. 221, 

224, citing Carlson v. Ray Geophysical Division (1971), 156 

Mont. 450, 454, 481 P.2d 327, 329. In a non-malpractice 

negligence action, there must be an affirmative act committed 

by the defendant and the affirmative act must be calculated 

to obscure the existence of a cause of action. Much, 502 

F.Supp. at 745. 

We do not agree that Stratman's alleged misrepresentation is an affirmative act calculated to obscure Payne's 

cause of action. A review of the record reveals that 

Stratman denied, by affidavit, making such a representation 

to Payne. Secondly, Payne made no attempt to corroborate 

Stratman's alleged representation. Clearly, Payne's allegations do not constitute evidence sufficient to toll 

S; 27-2-211, MCA. See, Yellowstone Conference of the United 

Methodist Church v. D. A. Davidson, Inc. (Mont. 1987), 741 

P.2d 794, 798, 44 St.Rep. 1528, 1532. 

Finally, but not determinative to this issue, Payne 

himself was in violation of the Real Estate Licensing Act. 

"It is unlawful for a licensed broker to employ or compensate, directly or indirectly, a person for performing the 

acts regulated by this chapter who is not a licensed broker 

or licensed salesman. . . ." Section 37-51-386 (1) , MCA. We 

have long held that one cannot benefit from his own wrong. 

Roundup Cattle Feeders v. Horpstad (1979), 184 Mont. 480, 

485, 603 P.2d 1044, 1047; 1-3-208, MCA. 

We hold the District Court properly entered judgment in 

favor of defendants. Affirmed. 

6 
We concur: 

A