NO. 83-302 

IN THE SUPREME COURT OF THE STATE OF PIONTAIilA 

1983 

GLENN E. ROGERS, 

Plaintiff, Counterclaim Defendant and Respondent, 

DOUGLAS J. SWINGLEY and NELDA J. 

SWINGLEY, husband and wife, 

Defendants, Counterclaim Plaintiffs and Appellants. 

APPEAL FROM: The District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Hartelius and Ferguson, Great Falls, Montana 

For Respondent: 

M. Richard Gebhardt , Ronan, Montana 

Robert Emmons, Great Falls, Kontana 

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Submitted on Briefs: August 18, 1983 

Decided: October 20, 1983 

DOT 3 ;, 

Filed: .J (J 

-- 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Douglas L. Swingley and Nelda J. Swingley, defendants, 

appeal from the summary judgment of the District Court, 

Eighth Judicial District, Cascade County, granted in favor of 

Glenn E. Rogers, plaintiff. We find the District Court 

erroneously granted summary judgment. The judgment is hereby 

reversed and the case remanded to the District Court. 

Douglas L. Swingley and. Nelda J. Swingley first met 

Glenn E. Rogers and his wife at the International Mink Show 

held in Madison, Wisconsin, during January 1978. Both the 

Swingleys and the Rogers were then in the business of raising 

mink. The Rogers were operating a mink ranch in Ronan, 

Montana, and the Swingleys had begun operation of a mink 

ranch west of Great Falls, Montana. 

Glenn E. Rogers had begun his mink ranching operation 

through a mink leasing arrangement and he suggested that the 

Swingleys might also be able to benefit from an arrangement 

of this kind. The Swingleys agreed and in early December 

1978 the parties entered into a written lease agreement 

whereby Rogers agreed to lease 600 pastel female mink and 120 

male mink to the Swingleys. In return, the Swingleys agreed 

to pay Rogers one kit per female mink annually, or one-fourth 

of the annual kit crop, if the total female mink leased 

produced an average of four kits. The term of the lease was 

from November 15, 1978 to November 15, 1980. 

At or about the time the parties entered into the lease 

agreement, Rogers strongly suspected that at least a small 

percentage of those mink leased to the Swingleys were 

infected with Aleutian Disease (AD). This disease affects 
the productivity of the mink and impairs their resistance to 

other diseases. 

Douglas L. Swingley eventually became aware of greater 

than normal losses among the leased mink and their kits and a 

lower than normal productivity rate among the female mink. 

Because of these problems, the parties agreed to a payment of 

$5,000 on the lease for the first year rather than a payment 

of mink. The problems continued into the second year and 

Swingley did not make the final payment under the lease. 

To ensure payment, Rogers then sought a temporary 

restraining order preventing the Swingleys from selling any 

of the mink or mink pelts. The parties then attempted to 

reconcile their differences by replacing the lease with a 

promissory note for $49,750 and a mortgage as security for 

the promissory note. The promissory note contained five 

paragraphs: the first four paragraphs set forth the terms 

for payment of the obligation and the last paragraph 

contained a release whereby "the makers of this note hereby 

covenant and agree to release GLENN E. ROGERS and TREASURE 

STATE MINK RANCH from any and all future liability which may 

arise out of the said mink lease." 

The Swingleys failed to make the first payment on the 

promissory note and on June 3, 1981, Rogers filed a complaint 

asking for judgment against the Swingleys for the full amount 

of the promissory note and for foreclosure of the mortgage 

securing the promissory note. The Swingleys filed an answer 

and a counterclaim in which they alleged that the promissory 

note and mortgage were procured through fraud and that Rogers 

was liable to them for various damages. Although Rogers has 

alleged that he informed the Swingleys of the presence of AD 

in the leased mink soon after the lease was signed, the 
Swingleys claim that they never knew that the leased mink 

were infected with AD and that they would not have signed the 

promissory note containing the release if they had known that 

the mink were infected. 

Rogers moved for summary judgment following discovery. 

The District Court granted summary judgment for Rogers, 

awarded him the full amount of the promissory note, and 

ordered the mortgage foreclosed. 

The sole issue on appeal is whether summary judgment was 

properly awarded to Rogers. More specifically, viewing the 

record in the light most favorable to the Swingleys, is there 

a genuine issue of material fact? 

Summary judgment under Rule 56(c), M.R.Civ.P., is proper 

only if the record discloses no genuine issue of material 

fact as a matter of law. Abell v. Traveler's Insurance Co. 

(Mont. 1983), 663 P.2d 335, 40 St.Rep. 738; Downs v. Smyk 

(Mont. 1982), 651 P.2d 1238, 39 St.Rep. 1786. 

This Court has consistently held that the party moving 

for summary judgment has the burden of showing the complete 

absence of any genuine issue as to all the facts which are 

deemed material in light of those substantive principles 

which entitle him to a judgment as a matter of law. Krone v. 

McCann (Mont. 1982), 638 P.2d 397, 39 St.Rep. 10; Big Man v. 

State (Mont. 1981), 626 P.2d 235, 38 St.Rep. 362. To satisfy 

this burden, the movant must make a clear showing as to what 

the truth is so as to exclude any real doubt as to the 

existence of any genuine issue of material fact. Kober & 

Kryss v. Stewart & Billings Deaconess Hospital (1966), 148 

Mont. 117, 417 P.2d 476; 6 Moore's Federal Practice ¶ 

56.15 [31. 
In addition, a11 reasonable inferences that may be drawn 

from the offered proof are to be drawn in favor of the party 

who opposes summary judgment. Abell v. Travelers Insurance 

Co. (Mont. 1983), 663 P.2d 335, 40 St.Rep. 335; Downs v. Smyk 

(Mont. 1982), 652 P.2d 1238, 39 St.Rep. 1786; Brown v. 

Merrill Lynch Pierce Fenner's Smith, Inc. (Mont. 1982), 640 

Here, the District Court failed these 

principles. In its finding of fact no. 4, the District Court 

stated: 

"4. The affidavit of defendant Douglas L. Swingley 

stated that he was unaware, at the time the note 

was executed, that his mink were infected with 

Aleutian Disease and, therefore, the note was 

secured by fraud by plaintiff. This assertion is 

not supported by evidence." 

In support of this conclusion, the court cited the 

following: 

"5. In sworn testimony of Defendant Douqlas L. 

Swingley in Swingley v. kernaghanl s services, Inc. , -- et al, Eighth District, Cascade County, CDV-80-416, 

Defendant Swingley, in answer to cross-examination 

by Robert J. Emmons, Attorney-at-law, stated: 

"'Q. At one time you indicated that you had 70% of 

your herd were infected with this particular 

disease. Is that correct? A. Yes.' 

"Q. What year was that? A. That was November of 

1980. " 

From this the Court found: 

"6 . By Defendant Douglas Swingley's sworn 

admission, he stated that he was aware of the 

Aleutian Oisease infection prior to execution of 

the promissory note." 

This appears to be the decisive piece of evidence which 

ultimately led the District Court to grant summary judgment. 

If Douglas Swingley knew that his mink were infected with 

Aleutian Disease prior to the execution of the promissory 

note, there would be no genuine issue of material fact and 
summary judgment would be proper. However, the statement 

made by Douglas L. Swingley can be read two ways: 

1) That, Douglas L. Swingley knew, in November 1980, 

that his mink were infected with AD; or 

2) That, at the time of his deposition in 1981, Douglas 

L. Swingley knew that his mink had been infected in November 

1980. 

If Douglas L. Swingley is to be afforded the benefit of 

all reasonable inferences that may be drawn from the 

evidence, then the possibility of hindsight must be examined. 

In his deposition, Douglas Swingley stated that he 

called Rogers on the telephone some time in early December 

1980 after the promissory note was signed. At that time, 

Rogers told Swingley that Rogers had tested his mink herd for 

AD during November 1980, and the test results revealed that 

about 30 percent of his mink were infected with AD. Swingley 

then tested his mink and the results revealed that around 70 

percent of his mink were infected with AD. 

When Swingley responded in the deposition cited by the 

District Court that 70 percent of his mink were infected with 

AD in November 1980, instead of December 1980, when he tested 

his mink, he could merely ha.ve been looking back to the 

earliest time when he could be sure that his mink were 

infected with AD. Rogers tested his mink in November 1980. 

Swingley leased the mink from Rogers. Therefore, Swingley 

could reasonably assume that the leased mink in his 

possession were also infected with AD as early as November 

1980. 

This Court has consistently held that the District 

Court's function is not to adjudicate genuine issues of fact 

on a motion for summary judgment; its function is merely to 
determine whether such issues exist. Abell v. Travelers 

Insurance Co. (Mont. 1983), 663 P.2d 335, 40 ~t.Rep. 738; 

Small v. McRae (Mont. 1982), 651 P.2d 982, 39 St.Rep. 1896. 

If there is any doubt as to the propriety of a motion for 

summary judgment, it should be denied. Cheyenne Western Bank 

v. Young (l978), 179 Mont. 492, 587 P.2d 401; Engebretson v. 

Putnam (1977), 174 Mont. 409, 571 P.2d 368; Fulton v. Clark 

(1975), 1.67 Mont. 399, 538 P.2d 1371. 

It is not clear, so as to exclude all real doubt, that 

the burden of establishing no genuine issue of material fact 

was met. The summary judgment is reversed and the case 

remanded to the District Court for further proceedings. 

L... /I. d-- 

Justice 

L- 9 

We Concur: J 

q4-4 d .Q/M uLP! 

Chief Jus'tlce