No. 14343 

IN THE SUPHEME COW OF THE STATE OF MNI!ANA 

1979 

NATIONAL GYPSUM COMPANY, 

Plaintiff and Appellant, 

-VSRICHAIiD I. "DICK" JOHNSON, 

Defendant and Respondent. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

William George Harris, Missoula, Montana 

For Respondent: 

Turnage and McNeil, Polson, Ibntana 

Sukmitted on briefs: March 29, 1979 

Decided: juN 1 1 1979 d r. 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Plaintiff appeals from a summary judgment entered in 

defendant's favor in the District Court for Ravalli County. 

Defendant Richard Johnson was the holder of a California contractor's license which permitted him to bid on and 

engage in certain types of construction work. He was also 

president of Pacific Plastering Corp., a California corporation 

which in its own right, held a contractor's license. A joint 

venture license was issued which allowed the two entities to 

"jointly submit . . . bid[s] or otherwise act in the capacity 

of a contractor." West's Cal. Bus. & Prof. Code, 87029. 

The record does not disclose which contracting classifications could be separately performed. However, by combination, 

plastering, lathing and dry wall work could be done under a 

single bid. In addition, the joint venture license "provided 

greater and added financial stability which enable[d] Pacific 

Plastering to provide bonds", according to the affidavit of 

S. R. Murphy, General Manager of Pacific Plastering. Defendant 

agreed, but by affidavit said: "This license . . . was never 

actually utilized on or for any project in which I was involved 

to the extent of performance under contract." 

Plaintiff, National Gypsum Co., is a dealer in building 

materials and transacted a substantial amount of business with 

Pacific Plastering through its subsidiary, Commercial Lathing 

Co. Over a period extending from December, 1970, to February 

1971, plaintiff sold Pacific Plastering $40,254.67 worth of building supplies for use in various construction jobs. On April 2, 

1974, a check payable to National Gypsum in the above amount 

was drawn on Pacific Plastering's general account. Because of 

nonsufficient funds, the check was not honored and the debt has 

remained unsatisfied. 
Johnson retired in 1973 and moved to Hamilton, Montana, 

where he now lives. In July 1975, National Gypsum filed a 

complaint seeking to hold Johnson individually liable on the 

debt. Plaintiff's theory, both in District Court and on appeal, 

is that Johnson as a joint venturer with Pacific Plastering 

is personally responsible for the debt. After discovery and 

the filing of affidavits, summary judgment was granted in defendant's favor. 

The sole issue before this Court is whether the District 

Court erred in finding that, as a matter of law, there was no 

joint venture between Johnson and Pacific Plastering. 

"The elements which are essential to a joint venture are commonly stated to be: (1) an agreement, express or implied among the members of the 

group; (2) a common purpose to be carried out by 

the group; (3) a community of pecuniary interest 

in that purpose among the members; and (4) an 

equal right to a voice in the direction of the 

enterprise, which gives an equal right of control." 

Sumner v. Amacher (1968), 150 Mont. 544, 437 P.2d 

630. The California definition is substantially 

similar. See e.g. Goldberg v. Paramount Oil 

Company (1956), 143 CZLApp.2d 215, 300 P.2d 329, 

332. 

Rule 56, M.R.Civ.P. has frequently been discussed by 

this Court. Upon motion, summary judgment will be rendered if: 

" . . . the pleadings, depositions, answers to 

interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter 

of law." Rule 56(c), M.R.Civ.P. 

Thus, summary judgment is proper in this case only if, as a matter 

of law, there is no joint venture. 

Included in the law pertinent to summary judgments is a 

principle announced in the following language: 

"The initial burden of establishing the absence 

of any genuine issue of material fact is imposed 

upon the moving party. Mustang Beverage Company, 

Inc. v. Jos. Schlitz Brewing Company (1973), 162 

Mont. 243, 246, 511 P.2d 1. But where the record 

discloses no genuine issue of material fact, the 

party opposing the motion is required to produce 

evidence sufficient to raise a genuine issue of 

fact before the trial court. 
"In light of Rule 56, M.R.Civ.P., the party opposing a motion for summary judgment on a record 

which reveals no issue of material fact must 

present facts of a substantial nature. Conclusory or speculative statements are insufficient 

to raise a genuine issue of material fact." Barich 

v. Ottenstror (1976), 170 Mont. 38, 41-42, 550 

P.2d 395. 

In addition: 

"When a motion for summary judgment is made and 

supported as provided 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 provided in this rule, 

must set forth specific facts showing that there 

is a genuine issue for trial." (Emphasis added.) 

Rule 56(e), M.R.Civ.P. 

The record in this case is barren of facts indicating 

that defendant joint ventured with Pacific Plastering in accordance with the license which allowed him to do so. Thus, this 

Court's inquiry must focus on the facts that plaintiff, as the 

opponent of the motion, has shown to exist. 

In answer to an interrogatory asking plaintiff to disclose 

the proof it would rely on at trial in linking the joint venture 

license to the projects which underlie the debt, plaintiff replied 

it would "rely on the State of California License authorization 

power to allow Defendant to operate as a joint venture entity 

and upon its accounting records and documents to substantiate 

that the said [joint venture] license #255715 was involved in 

projects utilizing the materials and supplies [which are the 

subject of the debt]." Pursuant to a court order, the answer 

was supplemented to the effect that in addition to its own records 

plaintiff would rely on the testimony of certain contractors. 

Much of plaintiff's brief is spent discussing the existence of the joint venture license and the authority of the State 

of California to issue such licenses. The mere issuance and procurement of such a license is insufficient to indicate that it 

was actually used or that a joint venture existed. A license is 
a permit to do something. Blatz Brewing Co. v. Collins (1945), 

69 Cal.App.2d 639, 160 P.2d 37, 39. Its possession is not the 

same as actually doing the authorized act. The records which 

plaintiff asserts show that the joint venture license was used 

indicate only that materials and supplies were sold to Comrnercia1 Lathing. No mention of a joint venture or any indication 

that it existed was included. The statement that certain contractors would testify to the existence of the joint venture is 

an unsupported conclusion. 

In answer to defendant's interrogatories, plaintiff 

said the joint venture agreement between Johnson and Pacific 

Plastering was oral. Plaintiff was then asked to "give the date 

of the alleged agreement, place where the agreement was entered 

into, who the agreement was entered with, witnesses to the agreement, and substance of the agreement." The answer referred to 

a Dun and Bradstreet report. No particular segment of the report was cited as relevant; the portion which is closest to the 

mark reads: "Operates as lathing and plastering contractor under 

Calif License #135302-C35, performing work for general contractors on routine progress payments basis." License no. 135302-C35 

refers only to the license held by Pacific Plastering. There 

is no mention of Johnson's license or the joint venture license. 

None of the foregoing indicates the existence of any 

fact which could support plaintiff. His assertions are conclusions of law rather than indications of fact. As such they are 

insufficient to prevent summary judgment. Barich v. Ottenstror, 

supra; see also, Price v. Wrather (Tex.Civ.App. 1969), 443 

S.W.2d 348, 343. 

Affirmed. 

Chief Justice 
We concur: 

/'I 

Justices