No. 12638 INTHE 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~ 

## 2I974 

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ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court. Plaintiffappeals from a summary judgment granted by the district court ofBlaine County infavor of defendant. InFebruary 1973 defendant Orin R. Cure, as executor ofthe estate of Chris G. Mayer, deceased, fileda returnofsale and a motion for an order confirming sale of real estate made under a power of sale contained inthe willof Chris 

### G. Mayer. Two parcels of landwere involved, one located in Liberty County, the second located inBlaine 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 toconfirmation of the court. The return noted that these purchasers had been obtained by Donald K. Meech, a licensed real estate broker. Italso noted that ExecutorCure had agreed that ifthe purchaser procured by the broker made the highest and best offer that Cure would recomnend tothe court and request that the court allow such broker a $23,000 comission for obtaining a purchaser. At the hearing on the return ofsale ofthe Liberty County land after considerable bidding by numerous parties, the propertywas sold tothe highest bidder, Walter Passage Farms, Inc. for the sum of$520,000. The court accepted the highest bidand did not award any broker's commission. Thus, any commission for a sale, ifany was owed, did not mature. Plaintiff's prospective buyers didnot buy. The executor's return of sale as tothe Blaine County landdisclosed that a sale of the land had been made by the executor, subject to confirmation, toCharles Hodson and John Mitchell for $958,000. The return noted that no real estate broker was involved inthe Blaine County property sale and did not request the payment of any broker's commission. As was the case inLiberty County the bidding on the Blaine County property was lively. This property was bid inby Mitchell and Hodson for $958,000 and Cure requested the court toconfirm the sale. However, atthe confirmation hearing a written bidten percent inexcess of the $958,000 was offered and the court opened the sale to further bidding. Ultimately the BlaineCounty property was sold 

### toMr. Schanbacher and 

### Mr. Croft for $1,110,000. No real estatebroker was involved in this property; although the same persons were the prospective buyers on the Liberty property. Prior tothe death of Chris Mayer he had listed his Blaine County property for salewith the Flynn Realty of Havre, Montana. Meech was contacted by Flynn and given an opportunity tofind 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 toallow a real estate commission of 5%. The instant action was brought by Aronow, Anderson & Beatty of She1by, Montana on behalf of plaintiff Meech some fourmonths afterthe sale occurred and the comnission was refused. After summaryjudgment was granted defendant, plaintiff substituted the 1 aw firm of Jardine, Stephenson, Blewett and Weaver of Great Falls inhis behalf, and aftervarious motions including

a motion for relief from summary judgment, which was denied, this appeal was taken. Several issues arebrought by plaintiff on appeal which we will sumnarize in thismanner: 1. Was summaryjudgment improperly taken considering the stateof the pleadings? 2. Does the statuteof frauds bar a claim for a commission under the facts? The listing agreement re1ied on by plaintiff runs from the decedent 

### tothe Flynn Realty of Havre, Montana. Plaintiff knew that only the Blaine County land was listed on said agreement and inhis affidavit in support of

a motion for re1ief from summaryjudgment he stated that ''Mr. Cure took the position that all rights which your affiant may have acquired under said 1

isting agreementBrminated upon thedeath of 

### Mr. Mayer 

## * * 

## *." Therefore, plaintiff 

### knew when he filed his complaint the terms ofthe agreement and was aware that Cure contended there were no enforceable rights thereunder. In addition, atthe hearing on themotion for summary judgment plaintiff's counsel stipulated inopen court that there was no written agreement to pay a real estatecommission. While plaintiff sets forth several contentions as issues we believe the question of whether ornot summaryjudgment was proper will answer the contentions. In regard tothe granting of summaryjudgments ithas long been established inMontana that themoving party has the burden of establishing that there is no genuine issue of fact tobe resolved before such summary judgment will be granted. However, when the record discloses no issue as

a material fact, then the burden ison the party opposing themotion 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 atno time prior to summary judgment questioned that the case was not ready for summaryjudgment. Then, afteradverse trial court determination, sought re1ief without new facts or amended pleadings

# . As noted by defendant inhis brief, plaintiff claims error, solicits reversal through legal speculation 

### on a ''multiple choice basis" as to the sufficiency of his I1theoriesof re1ief". The only new matter suggested to the court for itsconsideration was the listing agreement between Chris Mayer and the Flynn Realty 

### Co. which a11parties recognized as having expired with the death of Chris Mayer. Section 2-305, R.C.M. 1947. Trenouth 

### v. Mulroney, 124Mont. 499, 227 

### P.2d590; 28 ALR2d 1243, 2A C.3.S. Agency ~7; 3Am Jur 2d Agency SS 60-67.We will not further discuss the various legal theories propounded by plaintiff totake his case out of sumnaryjudgment, other than to add thatwe find no erroron the part of the trial court. The court had before itthe only significant issue raised by the pleadings 

### or available to the plaintiffatthe time of the summaryjudgment which was: Whether defendant was liable topay the plaintiff a commission absent a written agreement topay such a commission. The law isclear on this point. By statute, a broker may not collecta realtor's commission absent a valid written agreement. In addition, plaintiff did not even claimdefendant agreed topay
a comission but he premised his allegation on the statement of defendant that he would "petition the court''. Clearly plaintiff had no case and sumnaryjudgment was properly granted. Judgment isaffirmed

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James T. Harrison.

Justices