No. 12638 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 74 

DONALD K. MEECH, d/b/a 

MEECH REALTY, 

Plaintiff and Appellant, 

ORIN R. CURE, Executor of the 

Estate of CHRIS G. MAYER, Deceased, 

Defendant and Respondent. 

Appeal from: District Court of the Twelfth Judicial District, 

Honorable R. W. Thomas, Judge presiding. 

Counsel of Record : 

For Appellant : 

Jardine, Stephenson, Blewett & Weaver, Great Falls, 

Montana 

Alex Blewett argued and Jack L. Lewis argued, Great 

Falls, Montana 

For Respondent : 

Cure and Borer, Great Falls, Montana 

Edward W. Borer, appeared, Great Falls, Montana 

Swanberg, Koby, Swanberg and Matteucci, Great Falls, 

Montana 

Raymond F. Koby argued, Great Falls, Montana 

Filed : 4411 

Submitted: June 14, 1974 

Decided : qu~ 2 I974 * Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the Court. 

Plaintiff appeals from a summary judgment granted by the district 

court of Blaine County in favor of defendant. 

In February 1973 defendant Orin R. Cure, as executor of the estate 

of Chris G. Mayer, deceased, filed a return of sale and a motion for an order 

confirming sale of real estate made under a power of sale contained in the 

will of Chris G. Mayer. Two parcels of land were involved, one located in 

Liberty County, the second located in Blaine and Chouteau Counties. The 

return of sale recited that the Liberty County land had been sold to Ralph I. 

Schanbacher, Burton 0. Croft and Ray Delaney for $467,700, subject to confirmation of the court. The return noted that these purchasers had been obtained 

by Donald K. Meech, a licensed real estate broker. It also noted that Executor Cure had agreed that if the purchaser procured by the broker made the 

highest and best offer that Cure would recomnend to the court and request that 

the court allow such broker a $23,000 comission for obtaining a purchaser. 

At the hearing on the return of sale of the Liberty County land after 

considerable bidding by numerous parties, the property was sold to the highest 

bidder, Walter Passage Farms, Inc. for the sum of $520,000. The court accepted 

the highest bid and did not award any broker's commission. Thus, any commission 

for a sale, if any was owed, did not mature. Plaintiff's prospective buyers 

did not buy. 

The executor's return of sale as to the Blaine County land disclosed 

that a sale of the land had been made by the executor, subject to confirmation, 

to Charles Hodson and John Mitchell for $958,000. The return noted that no 

real estate broker was involved in the Blaine County property sale and did 

not request the payment of any broker's commission. 

As was the case in Liberty County the bidding on the Blaine County 

property was lively. This property was bid in by Mitchell and Hodson for 

$958,000 and Cure requested the court to confirm the sale. However, at the 

confirmation hearing a written bid ten percent in excess of the $958,000 was 

offered and the court opened the sale to further bidding. Ultimately the Blaine 
County property was sold to Mr. Schanbacher and Mr. Croft for $1,110,000. 

No real estate broker was involved in this property; although the same 

persons were the prospective buyers on the Liberty property. 

Prior to the death of Chris Mayer he had listed his Blaine County 

property for sale with the Flynn Realty of Havre, Montana. Meech was contacted by Flynn and given an opportunity to find a purchaser and one of such 

persons contacted was Schanbacher, who became interested in purchasing that 

property. Following the death of Chris Mayer executor Cure, after being 

made aware of plaintiff's efforts, agreed that if a purchaser procured by 

plaintiff made the highest and best offer for the property then Cure would 

petition and request the court to allow a real estate commission of 5%. 

The instant action was brought by Aronow, Anderson & Beatty of 

She1 by, Montana on behalf of plaintiff Meech some four months after the sale 

occurred and the comnission was refused. After summary judgment was granted 

defendant, plaintiff substituted the 1 aw firm of Jardine, Stephenson, Blewett 

and Weaver of Great Falls in his behalf, and after various motions including 

a motion for relief from summary judgment, which was denied, this appeal was 

taken. 

Several issues are brought by plaintiff on appeal which we will 

sumnarize in this manner: 

1. Was summary judgment improperly taken considering the state of 

the pleadings? 

2. Does the statute of frauds bar a claim for a commission under 

the facts? 

The listing agreement re1 ied on by plaintiff runs from the decedent 

to the Flynn Realty of Havre, Montana. Plaintiff knew that only the Blaine 

County land was listed on said agreement and in his affidavit in support of 

a motion for re1 ief from summary judgment he stated that ''Mr. Cure took the 

position that all rights which your affiant may have acquired under said 

1 i sting agreement Brminated upon the death of Mr. Mayer * * *. " 

Therefore, plaintiff knew when he filed his complaint the terms of 
the agreement and was aware that Cure contended there were no enforceable 

rights thereunder. In addition, at the hearing on the motion for summary 

judgment plaintiff's counsel stipulated in open court that there was no 

written agreement to pay a real estate commission. 

While plaintiff sets forth several contentions as issues we believe the question of whether or not summary judgment was proper will answer the contentions. 

In regard to the granting of summary judgments it has long been 

established in Montana that the moving party has the burden of establishing 

that there is no genuine issue of fact to be resolved before such summary 

judgment will be granted. However, when the record discloses no issue as 

a material fact, then the burden is on the party opposing the motion to 

present evidence of a material and substantial nature raising a genuine fact. 

Mustang Beverage Co. v. Scttlitz Brewing Co., 162 Mont. 243, 511 P.2d 1, 30 

St.Rep. 565; Pack River Co. v. Young, 162 Mont. 271, 511 P.2d 12, 30 St.Rep. 

625. 

Here, plaintiff at no time prior to summary judgment questioned that 

the case was not ready for summary judgment. Then, after adverse trial court 

determination, sought re1 ief without new facts or amended pleadings . As 

noted by defendant in his brief, plaintiff claims error, solicits reversal 

through legal speculation on a ''multiple choice basis" as to the sufficiency 

of his I1theories of re1 ief". The only new matter suggested to the court for 

its consideration was the listing agreement between Chris Mayer and the Flynn 

Realty Co. which a1 1 parties recognized as having expired with the death of 

Chris Mayer. Section 2-305, R.C.M. 1947. Trenouth v. Mulroney, 124 Mont. 

499, 227 P .2d590; 28 ALR2d 1243, 2A C. 3. S. Agency ~7; 3 Am Jur 2d Agency 

SS 60-67. 

We will not further discuss the various legal theories propounded by 

plaintiff to take his case out of sumnary judgment, other than to add that we 

find no error on the part of the trial court. The court had before it the 

only significant issue raised by the pleadings or available to the plaintiff 
at the time of the summary judgment which was: Whether defendant was 

liable to pay the plaintiff a commission absent a written agreement to pay 

such a commission. The law is clear on this point. By statute, a broker 

may not collect a realtor's commission absent a valid written agreement. 

In addition, plaintiff did not even claim defendant agreed to pay 

a comission but he premised his allegation on the statement of defendant 

that he would "petition the court''. Clearly plaintiff had no case and 

sumnary judgment was properly granted. 

Judgment is affirmed . 

A 

James T. Harrison. 

Justices