IN THE SUPREME COURT OF THE STATE OF MONTANA 

360 RANCH CORP., a Nevada Corporation, 

Plaintiff and Respondent, 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Larry W. Moran, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Thomas R. Anacker, Anacker Law Office, 

Bozeman, Montana 

For Respondent: 

Karl Knuchel, Attorney at Law, 

Livingston, Montana 

Filed: 

Submitted on Briefs: August 8, 1996 

Decided: October 31, 1996 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The respondent, 360 Ranch Corp. ("360 Ranch") , filed an action 

for declaratory relief in the District Court of the Eighteenth 

Judicial District in Gallatin County. The District Court granted 

summary judgment in favor of 360 Ranch. The appellant, R & D 

Holding, appeals the order of the District Court. We reverse the 

District Court, and remand for resolution of the factual issues. 

The issue on appeal is whether the District Court erred when 

it granted summary judgment in favor of 360 Ranch Corp. 

FACTUAL BACKGROUND 

In January 1994, 360 Ranch, as seller, entered into a land 

sale contract with Patrick Lancione by which it agreed to sell a 

five-acre parcel for the amount of $260,000. Lancione subsequently 

contracted with David Williams1 to sell the parcel for $381,150. 

The simultaneous closings on the land sale contracts were held on 

April 28, 1994. Williams paid the sum of $381,150, and 360 Ranch 

received the sum of $260,000. At the time of closing, however, 

360 Ranch was unable to convey title to the five-acre parcel. The 

five acres, as part of a larger twenty-acre tract, could not be 

conveyed until a survey of the land was conducted, and all of the 

applicable subdivision review requirements were satisfied. As a 

result, 360 Ranch conveyed to Williams a recordable deed for the 

entire twenty-acre parcel of land. 

'In June 1994, Williams conveyed the property to R & D 

Holding. As a result, R & D Holding became the successor in 

interest to Williams, and is the appellant herein. 
Then, on April 29, 1994, Williams and 360 Ranch entered into 

a written option agreement. The agreement gave 360 Ranch the 

option to reacquire fifteen of the twenty acres conveyed to 

Williams at the closing. In order to exercise its option, however, 

360 Ranch was required to prepare and file a minor subdivision plat 

no later than one year following the date of the option agreement. 

The agreement also stated that, if the contingencies in the option 

agreement were not met within the one-year period, then "Williams 

[would] retain the consideration paid today as liquidated damages, 

and this option [would] become null and void." 

360 Ranch's attempts to comply with the contingencies in the 

option agreement were unsuccessful. In January 1995, they applied 

for minor subdivision review, but their application was denied on 

the ground that a conflict between the Bozeman Area Master Plan and 

the Bozeman Area Zoning Map was discovered. The conflict was 

eventually resolved, but not until after the one-year period 

specified by the option agreement had expired. 

Ultimately, therefore, a minor subdivision plat was not filed 

within one year of the option date. No additional consideration 

was paid to extend the option, and it expired on April 29, 1995. 

360 Ranch filed an action for declaratory relief in which it 

requested the District Court to extend the one-year period 

specified in the parties' option agreement. 360 Ranch moved for 

summary judgment, and a hearing was held before the District Court. 

At the conclusion of the hearing, the District Court made the 
following findings: (1) the clear intent of the parties was to 

contract for a five acre, and not a twenty acre, parcel of land; 

and (2) because of the conflict between the Bozeman Area Master 

Plan and the Bozeman Area Zoning Ordinance, it was "impossible" for 

360 Ranch to comply with the requirements of the option agreement. 

Based on its findings, the District Court granted summary 

judgment in favor of 360 Ranch. The District Court determined that 

"equity and good conscience . . . requires that [360 Ranch] be 

given reasonable additional time" to fulfill the obligations 

imposed upon it by the option agreement, and ordered R & D Holding, 

as the "record owner of the 20-acre parcel," to sign the 

application for the minor subdivision plat. 

DISCUSSION 

Did the District Court err when it granted summary judgment in 

favor of 360 Ranch Corp.? 

Summary judgment is governed by Rule 56 (c) , M. R. Civ. P., which 

provides, in relevant part, as follows: 

The judgment sought shall be rendered forthwith 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 . . . . 

The purpose of summary judgment is to encourage judicial 

economy through the elimination of any unnecessary trial. However, 

summary judgment is never to be a substitute for trial if there is 

an issue of material fact. Reaves v. Reinbold (1980) , 189 Mont. 284, 
It is well established that the moving party is required to 

show a complete absence of any genuine factual issues. D'Agostinov. 

Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. To defeat 

the motion, the nonmoving party must set forth facts which 

demonstrate that a genuine factual issue exists. O'Bagv v. First Interstate 

BankofMissoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. All 

reasonable inferences that may be drawn from the offered proof must 

be resolved in favor of the nonmoving party. U'Agostino, 240 Mont. 

at 442, 784 P.2d at 924. Additionally, if there is any doubt 

regarding the propriety of the summary judgment motion, it should 

be denied. Whitehawkv.Clark (1989), 238 Mont. 14, 18, 776 P.2d 484, 

486-87. 

When the District Court granted 360 Ranch's motion for summary 

judgment, it concluded that "there are no genuine issues of 

material fact in dispute . . . and that [360 Ranch] is entitled to 

judgment as a matter of law." 

R & D Holding, however, asserts on appeal that there are 

genuine issues of material fact, and that, therefore, the District 

Court erred when it granted 360 Ranch's motion for summary 

judgment. Specifically, R & D Holding claims that genuine factual 

disputes exist with regard to the following issues: (1) the intent 

of the parties with regard to the conveyance of the twenty acres 

and the execution of the option agreement; and (2) whether 

360 Ranch's failure to perform, as required by the terms of the 
option agreement, can be excused on the grounds of impossibility of 

performance. 

INTENT OF THE PARTIES 

The District Court determined that, "[cllearly, it never was 

within the contemplation of anyone involved in these transactions 

that [R & D Holding] would get a 20-acre parcel of real property 

.. . . " The District Court found, instead, that the parties 

intended only to buy and sell a five-acre parcel. 

R & D Holding, however, contends that there is a genuine issue 

of material fact with regard to the parties' intent. To support 

their claim, they first point to the affidavit of David Williams, 

in which he asserts, "it was [my] intent to purchase 20 acres for 

the sum of $381,150.00, subject to the 360 Ranch Corporation 

option, and to retain the entirety of said 20 acres if the option 

was not exercised in accordance with its termjsl ." 360 Ranch 

claims that this affidavit is self-serving and was made only after 

the institution of litigation. We recognize, however, that when a 

court determines whether summary judgment is appropriate, "the 

papers supporting [the] movant's position are closely scrutinized, 

while the opposing papers are indulgently treated. " Payne Reallyv. Firs1 

Sec. Bank (1992), 256 Mont. 19, 25, 844 P.2d 90, 94. 

Even more significant, however, is the contract itself. The 

language of the option agreement states, " [il f the option is not 

exercised on or before the above-specified date [one year from the 

date of the option agreement], DAVID WILLIAMS is to retain the 
consideration paid today as liquidated damages and this option 

shall become null and void." The option agreement clearly 

contemplates the possibility that Williams (and R & D Holding as 

his successor in interest) could acquire the entire twenty acre 

parcel. 

In Engebretsonv.Pz~lnarn (1977), 174 Mont. 409, 413, 571 P.2d 368, 

370, we held that "summary judgment is usually inappropriate where 

the intent of the contracting parties is an important 

consideration." Furthermore, all reasonable inferences must be 

drawn in favor of R & D Holding, the nonmoving party. 

Therefore, we conclude that there is a genuine issue of 

material fact with regard to the intent of the parties. 

IMPOSSIBILITY OF PERFORMANCE 

The District Court found that 360 Ranch's "efforts to divide 

the 20-acre parcel through the minor subdivision process were made 

impossible due to the conflict between the Bozeman Area Master Plan 

and the Bozeman Area Zoning Ordinance." On that basis, the 

District Court excused 360 Ranch's failure to perform, and gave 

them "reasonable additional time" to comply with the terms of the 

option agreement. 

R & D Holding, however, contends that there is a genuine issue 

of material fact with regard to whether 360 Ranch's failure to 

perform should be excused on the ground of impossibility of 

performance. In support of its contention, R & D Holding makes the 

following assertions: 360 Ranch did not file its first application 
for minor subdivision review until January 1995--more than eight 

months after the term of the option commenced; the application 

contained errors which caused the Bozeman City Planning Office to 

reject the application; and as of March 1995, one month before the 

option expired, 360 Ranch did not have a valid application on file 

with the proper authority. 

R & D Holding concedes that the conflict in the Bozeman area 

planning documents caused a delay, and that 360 Ranch was not 

responsible for either the conflict or the delay. Nonetheless, 

R & D Holding claims, on appeal, that the delay "would not have 

prevented [360 Ranch1 from obtaining minor subdivision review 

during the term of the one (1) year option period had it simply 

made a timely filing of its minor subdivision application." In 

essence, R & D Holding contends that the doctrine of laches, rather 

than impossibility of performance, should apply to the facts of 

this case. 

The starting point for our analysis is the principle that 

" [ilmpossibility of performance is a strict standard that can only 

be maintained where the circumstances truly dictate impossibility." 

Barrettv. Ballard (l98O), 191 Mont. 39, 44, 622 P.2d 180, 184. 

There will, undoubtedly, be contract cases in which a district 

court could grant summary judgment based on impossibility of 

performance. For example, where an Act of God physically destroys 

the subject matter of a contract, or where the subject matter of a 

contract is subsequently declared illegal, then it could be held 
that, as a matter of law, performance of the contract was 

impossible. In many other cases, however, whether performance of 

a contract was impossible will be a question of fact, and summary 

judgment will not be appropriate. 

We conclude that this case falls into the latter category. 

Based on the facts alleged in this case, there are two possible 

interpretations. The first is that, as the District Court 

determined, due to the conflict in the Bozeman area planning 

documents and ensuing delay, it was impossible for 360 Ranch to 

file a minor subdivision plat within the one-year time period 

specified by the option agreement. The other is that, as R & D 

Holding contends, had 360 Ranch acted with proper diligence, their 

application for a minor subdivision plat could have been filed 

within the one-year time period, despite the conflict in the 

planning documents and ensuing delay. 

We conclude that, based on the facts alleged in this case, the 

question of impossibility of performance presents a genuine issue 

of material fact. 

Accordingly, we hold that the District Court erred when it 

granted summary judgment in favor of 360 Ranch. 

Finally, we note that when the District Court issued its 

order, it determined that "equity and good conscience . . . 

requires that [360 Ranch] be given reasonable additional time" to 

comply with the terms of the option agreement. We conclude that 
the District Court exceeded its authority when it modified the 

express terms of the parties' contract 

It is well established that a district court may only assert 

its equitable jurisdiction when no statutory or legal remedy is 

available. Jefjies Coal Co. v. Industrial Accident Board (1953 ) , 12 6 Mont . 411, 

252 P.2d 1046. In this case, the District Court modified the 

express terms of the parties' contract, and also failed to apply 

5 28-2-603, MCA, which states: 

Where a contract has but a single object and such object 

is unlawful, whether in whole or in part, or wholly 

impossible of performance, or so vaguely expressed as to 

be wholly unascertainable, the entire contract is void. 

Thus, if after resolution of the pertinent factual issues it 

is determined that performance was, in fact, impossible, the 

District Court would be bound by the mandate of 5 28-2-603, MCA. 

The judgment of the District Court is reversed, and the case 

is remanded for resolution of the factual issues. 

We concur: