No. 85-338 IN THE SUPREME COURT OF THE STATEOF MONTANA 1986

VERNON WESTLAKE, PersonalRepresentative of the Estate ofHarry D.R. Larson, Decea-sed, PlaintiffandAppellant,

CHARLES R. OSBORNE and LOIS MARIE OSBORNE,husband andwife, and DENNISHARDIN, Defendantsand Respondents.

APPEAL FROM: District Court of the Eighteenth ~udicial ~istrict, In and for the County ofGallatin, TheHonorable FrankM. Davis,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: H. A. Bolinger,Bozeman,Montana

For Respondent: Gregory 0.Morgan,(Osborne), Bozeman,Montana Corette, Smith, Pohlm.a.n, & Allen;Karshal L. Mickelson, (Hardin)

## ,Butte,Montana

- Submitted on Briefs: Nov. 29, 1985 Decided: February 5, 1986

Filed: 

## Ftb 

## 5i986Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Appellant, Vernon Westlake, personal representative 

### of the Estate of Henry Larson,appeals from the judgment of the District Court, Eighteenth Judicial District, County of Gallatin, entered following the court's order granting the motions for summary judgment of respondents, Charles and Marie Osborne,and DennisHardin. We affirm. The record of this case,as contained in the depositions

on file, shows that Charles Osborne and the deceased,Harry Larson, were friends. The two agreed that they would enter into sale and lease back agreements with regard to real property ownedby Larson and used as his residence. Sometime ir, the latter part of February 1982, the two men sought the assistance of Dennis Hardin, licensed real estate broker and investment counselor to assist them in the transaction. Both men had dealt with Hardin in the past. They told Hardin tha-tthey had struck a bargain with regard to the sale of the Itarsonresidence. Hardin then elicited the details of the transaction from them and explained that theywould need title insuranceand proper agreementsdrafted by an attorney. Hardin then relayed the details of the transaction to Ed Sedivy, the attorney who drafted the agreements. The documentsprepared by Sedivywere thoroughly reviewed by Larson and Osborne. Larson's titl-e was subject to an unpaid balance of $3,200 on a $6,000 mortgage owing to Larson's sister, Ella Westlake. Appellant, Vern Westlake, 

### is the son of Ella Westlake and the nephewof Larson.Due to the existing mortgage on the property, Hardin telephoned Ella Westlake prior to closing the tramsaction. She told Hardin to consult her son. After learning of the transaction from Hardin, Vern Westlake contacted Larson and Larson told him that he wanted to sell his house to get his financial affairs straightened out and that it wasn't really any ofWestlake'sbusiness. Prior to closing, Larson,Vern Westlake, Ella Westlake and Hardin met in Hardin's office. At that time Vern Westlake asked Larson if he was sure he knew what he was doing and explained that if he was in a financial bind Ella Westlake would refinance the note and mortgage 

### she held on the property. Larson told Vern Westlake that all he was really interested in was getting his sister's mortgage off theproperty. The sale and lease back agreementswere signed.on March 1, 1982. The terms of the salewere as follows: 1. Purchase Price. Buyer agrees topay and Seller agrees to accept, as payment in full-for the property above referred to, the total sum of $16,650.00 which sum shall be paid as follows: A. The sum of $4,050.00, the receipt whereof is hereby acknowledged. B. The balance in the sum of $12,600.00 shall he paid at the rate 

### of $350.00 per month for thirty-six (36)months,which shallbe satisfiedby Seller's leasing said property and remaining in possession for thirty-six (36)months. A copy of said lease is attached as Exhibit "A". It is understood that this lease is not assignable by Selleras Tenant,and shall terminate upon death of Tenant. 

### In

## theevent -- of such termination,ifprior to the thirty-six month period, the unpaidbalance 

### -- of this purchase price shall be deemed satisfied. 

### -- - (Emphasisadded.) The closing of the transaction took place on March -5, 1982. At that time, Larson was 78 years old and in poor health.,having suffered from heart difficulties since 1979.The closing itself was handled by Teddy Annear of Gallatin Title Company. The day before the closing, Larson asked Annear to conduct the closing in such a manner that the Mestlakes would not know about the terms of the sale. Thus, the closing was a bifurcated transaction. First, Ella Westlake was paid the balance of her debt which was secured by Larson's property and then the actual closing of the transaction took place. At the closingAnnear observed that Larsonwas alert and

aware ofwhatwas going on around him, that he did not appear to be confused or upset about the transaction, and that he appeared to understand what hewas doing. Hardinwas also of the opinion that Larson's age and health had no effect on his mental state. Both Ella Westlake and Vern Westlake learned of the transaction prior to Larson's death on November 

### 9, 1982. After Larson's funeral Charles Osborne called Vern Westlake and asked when Larson's personal property would be removed from the residence, as he intended to take possession pursuant to the agreement. Vern Westlake refused Osborne

access to theproperty. Thereafter, Vern 

### Westlake, as Larson

### 's personalrepresentative, brought this action to set aside the contract of sale, deed and lease hack alleging fraud,undue influence and unconscionability. Following discovery, motions for summary judgment were filed by both the Osbornes and Hardin. Orders granting both motions for summary judgment were granted and a final entry of judgmentwas entered whereupon Westlake appealed. Westlake raises two issues on appeal:1. Whether the DistrictCourt erred in granting summary judgment to respondent,DennisHardin; and 2. Whether the DistrictCourt erred in gracting summary judgment to the respondents, Charles and Lois Osborne. With regard to all the respondents,Westlake claims that summary judgment was improper because of factual issues present in the case. It is true that the party moving for summary judgment has the burden of est.ablishingthe absence of any genuine issue ofmaterial fact,and theparty opposing themotionmust supply evidence supporting the existence of a genuine issue of material fact.. Pretty on Top v. City of Eardin (1.979), 182 Mont. 311, 315, 597 P.2d 58, 60. The general purpose of Rule 56, M.R.Civ.P., is to eliminate unnecessary trial, delay and expense. The purpose of the hearing on the motion is not to resolve factual issues,but to determine whether there is any genuine issue of material fact in dispute. The opposingparty's factsmust be material and of a substantial nature, not fanciful, frivolous, gauzy

nor merely suspicions. Silloway v. Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 1-67,169. Implicationsbased upon what Vern Kestlake thought are not enough. Cheyenne Western Bank v. Young (1978),179 Mont. 492, 497, 587 P.2d 401, 404. With regard.to both the Osbornes and Hardin, Westlake raises no genuine issue of material fact. Vern westlake's

own deposition removed all doubt as to whether there was a genuine issue of fact. The deposition reveals the following with regmdto Hardin: Q. Doyouhave any testimony or any evidence that you can tellme abouthere or refer

### me to that lead you to conclude that Mr. Hardin acted in some sort of a conspiracy with the Osbornes to cheat or defraud Harry Larson? 

### A. Honestly 

### I can't say that I have any more than an opinion derived from reading the agreement, knowing that Mr. Hardin

### acted as an agent or an arranger for the Osbornes and forHarry to getmy mother and I 

### in there to do the final settlement. Now that's my basis. With regard to the Osbornes, Westlake's deposition contains the following questionsand.answers: Q. 

### So,would it be fair to say that the basis of your complaint against the Osbornes 

### is an opinion derived from reading the agreement. A. Based on the agreement. Q. 

### Okay. As 

### I recall your testimony with Mr. Pohlma-n,and 

### I think I'm quoting it accurately because 

### I wrote it down here. "I'm basing everything on the fact that this is a 

### poor, unethical contract." Would thatbe fair? 

### A. That would be fair. Aside from Westlake's "opinion" there is no genuine issue of material fact that appea.rs of record. Westlake, however, does list several factual issues in conclusory fashion inhis brief. As stated above, this is not 

### an appropriate means of opposing a motion for sun?mary judgment. We hold. that the District Court did not err in granting summary judgment.. Having determined that summary judgment was proper, we must now determine whether the respondents were entitled to judgmentas amatter of law. Westlake first contends that the transaction in this

case should.be set aside under theoriesof constructive fraud and undue influence. Montana has codified th.ecommon law principles of constructive fraud at 

### section 28-2-406, MCA, 

### whichprovides: Constructive fraud consists in:

(1) any breach of duty which, without a.n actual fraudulent intent, gainsan advantage to the person in faultor anyone claiming underhim bymisleading another to his prejudice or to the prejudice of anyone claiming under him; or (2) 

### any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud.What constitutes undue influence is stated at section 28-2-407,MCA,which provides: Undue influence consists in:

(1) the use by one inwhom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose 

### of obtaining an unfair advantage over him;

(2) taking an unfair advantage of another's weakness ofmind; or

(3) taking a grossly oppressive and unfair advantage of another's necessities or distress. We hold that both of Westlake's claims--constructive fraud and.undue influence--have no basis in fact in this ca.se

as to any 

### of the respondents. See Turley v. Turley (19821, 199Mont. 265, 274-75, 649 P.2d 434, 438-39. Westl-akenext contends that the sales agreement between Larson and the Osbornes was unconscionabbe. Westlake bases his contentionon the language of the agreement,cited above, that cancelled the Osbornes'monthly installment payments of $350.00 upon the death of Larson. This Court in the past has looked to the official comrr~entto section 2-302 of theU.C.C. for thebasic test for unconscionability. All State Leasing v. Top Hat Lounge

(1982),198Mont. 1, 6,649 P.2d 1250, 1252-53. The official comment to section 2-302 of the U.C.C. suggest the following test:[Wlhether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscion.ahleunder the circumstances existing at the time of themaking of the contract 

# .

# .. The principle is one of the 

### ---- prevention 

### - of oppression and unfair surprise. There is no evidence in this case outside ofVern Westlake's "opinion" that points to any oppression, prejudice, orunfair surprise. 

### It appears that what Westl-ake is reallychallenqing Is the sufficiency of consideration for the cancellation of the Osborne's indebtedness upon Larson's death. But insufficient consideration or inadequacy of consideration are not grounds for setting aside or refusing to enforce a contract. Hodgkiss v. Northland Petroleum Consol. (1937), 104 Mont. 328, 334, 67 P.2d 811, 814; Pederson v. Thoeny (1930), 88 Mont. 569, 576, 295 P. 250, 252. Westlake had the burden to raise facts from which reasonable men might conclude that there was oppression, prejudice or unfair surprise. Having failed to do this, summary judgment againstWestlake and in favor of respondents

was proper on this issue. Westlake last contends that the District Court considered improper evidence in qrznting Hardin'smotion for summary judgment. Westlake argues that the District Court relied on improper hearsay testimony of Hardin to conclude that Larson and Osborne had an agreement negotiated and finalized prior to Hardin's involvement-. We find this argument unavailing because, as Hardin points out, there was other testimony by Charles Osborne by which the District Court could have reached the same conclusion. Osborne's testimonywas not subject to ahearsay objection. We affirm the District Court.

Me Concur: