NO. 83-302 INTHE 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 DistrictCourt of the Eighth Judicial District, Inand forthe 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



### - Submittedon Briefs: August 18, 1983 Decided: October 20, 1983 

## DOT3 ;, 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 JudicialDistrict,CascadeCounty,granted in favor of Glenn 

### E. Rogers, plaintiff. We find the District Court erroneouslygranted summary judgment. The judgment ishereby reversedand the case remanded to theDistrictCourt. Douglas L. 

### Swingley and. Nelda J. 

### Swingley first met Glenn E. 

### Rogers and his wife at the InternationalMink Show held in Madison, Wisconsin, during January 1978. Both the Swingleysand the Rogerswere 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 ranchwest 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 600pastel femalemink and 120 male mink to the Swingleys. In return, the Swingleys agreed topay Rogers one kitper femalemink 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 leasewas fromNovember 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 themink and impairs their resistance to other diseases. Douglas L. Swingley eventually became aware of greater than normal losses among the leasedmink and their kits and a lower than normal productivity rate among the female mink. Because of theseproblems, theparties agreed to apayment 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 liabilitywhich may arise out of the saidmink lease." The Swingleys failed to make the first payment on the promissory note and onJune 3,

### 1981,Rogers filed a 

### complaint asking for judgment against the Swingleys for the fullamount of the promissory note and for foreclosure of the mortgage securing the promissory note. The Swingleys filed an answer and a counterclaim inwhich they alleged that the promissory note andmortgage were procured through fraud and thatRogers

was liable to them forvarious 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, theSwingleys claim that they never knew that the leased mink

were infectedwithAD and that theywould 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 iswhether summary judgmentwas properly awarded to Rogers. More specifically, viewing the record in the lightmost favorable to the Swingleys,is there

a genuine issue ofmaterial fact? Summary judgmentunder Rule 56(c), M.R.Civ.P., isproper 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), 651P.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 entitlehim to a judgmentas amatter of law. Kronev. 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, themovant 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 thatmay 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;Downsv. 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 factno. 4,theDistrict Court stated: "4. The affidavit of defendantDouglasL. 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 supportedby evidence."

In support of this conclusion, the court cited the following: "5. In sworn testimony of Defendant Douqlas 

### L. Swingley in Swingleyv. 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 timeyou indicated thatyou had 70% of your herd were infected with this particular disease. Is that correct? A. Yes.' 

### "Q. What yearwas that? A. ThatwasNovember 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 thepromissory 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 andsummary 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, thathismink were infectedwith AD; or 2) That, atthe time of hisdeposition in 1981, Douglas L. Swingley knew that hismink had been infected inNovember 1980.If Douglas L. Swingley is tobe afforded the benefit of all reasonable inferences that may be drawn from the evidence, then thepossibility of hindsight mustbe 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 thatRogers had testedhismink herd for AD during November 1980, and the test results revealed that about 30 percent of hismink were infectedwith AD. Swingley then tested hismink and the results revealed that around 70 percent of hismink were infectedwith AD. When Swingley responded in the deposition cited by the District Court that 70 percent of hismink were infectedwith AD inNovember 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 inNovember 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 toadjudicate genuine issues of fact

on a motion for summary judgment; its function ismerely todetermine 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. CheyenneWestern 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),1.67Mont. 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 DistrictCourt for furtherproceedings.



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