No. 81-452 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

ROBERT F. DOWNS, 

Piaintiff and Respondent, 

VS. 

BERNARD SMYK, a/k/a BERNARD L. SMYK, 

and LOIS A. SMYK, 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorabie Charles Euedke, Judqe presiding 

Counsel of Record: 

For Appellants: 

Gregory Jackson, Helena, Montana 

Douglas B. Kelly, Helena, Montana 

Bernard Smyk, Pro Se, Billings, Montana 

For Respondent: 

Calton & Hamman, Billings, Montana 

Filed: 

Submitted on briefs: June 21, i982 

~ecided:September 23, 1982 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Defendant Smyk appeals from summary judgment in the 

Thirteenth Judicial District Court, Yellowstone County, in 

this action arising out of a written agreement between the 

parties. The agreement (June 1976 agreement) provided that 

Downs would advance money for the downpayment in the purchase 

of certain real property in Billings. This action arose 

when Downs and Smyk were unable to agree about the meaning 

and implementation of the terms of the June 1976 agreement. 

We reverse the District Court in part, affirm in part, 

and remand for trial. 

Defendant Smyk presents the following issues to this 

Court: 

(1) Whether the District Court acted within its authority 

in granting a remedy allowing Downs exclusive control over 

the contractual arrangements for the property for a period 

of one year. 

(2) Whether the District Court erred in ruling that 

defendant was not entitled to a jury trial. 

(3) Whether the District Court erred by granting 

summary j udgmen t . 

Smyk filed appellant's brief acting -- pro se. Thereafter, 

he hired an attorney, who authored the appellant's reply 

brief. Respondent Downs moves this Court to strike the 

reply brief as being "an entirely new second Appellant's 

brief" that raised new issues, some of which were not before 

the District Court, others of which were raised in neither 

the appellant's brief nor the respondent's brief. 

Traditionally this Court has accorded some procedural 

leeway to litigants proceeding -- pro se. This "leeway" does 

not extend to allowing them to raise issues which are not 
properly before this Court, and to disadvantage their opponents 

by raising new matters in their reply briefs. Rule 23(c), 

M.R.App.Civ.P. states that ". . .[tlhe reply brief must be 

confined to new matter raised in the brief of the respondent." 

Our consideration of Smyk's arguments, therefore, will be 

limited to the above issues, which we find to be properly 

before this Court. 

In March of 1976, the owner of a 7 1/2 acre parcel of 

land in Billings offered Smyk a 120-day option to purchase 

the property for $300,000 with $60,000 down. Smyk had 

leased the land during the previous several years for his 

used-equipment business, and desired to purchase it, but was 

unable to raise $60,000 for the downpayment. In June of 

1976, Smyk and Downs entered into an agreement, whereby 

Downs would advance Smyk the downpayment and receive certain 

benefits, including a 50% interest in the property. Rental 

income was to be placed in a separate account for the benefit 

of the parties. The agreement also provided: 

"Downs will control any contractual arrangements until Smyk has contributed by payment 

of the monthly installments, the sum of 

$60,000.00. At that time, Downs and Smyk 

shall equally share all liabilities and 

profits, if any." 

In July of 1976, Smyk entered into a contract for deed 

with the trustee for the property and made the downpayment 

with the $60,000 advanced by Downs. Smyk continued to 

occupy and use the property as his place of business but 

ceased to make rental payments for such use. 

In fall of 1977, prior to the equalization of contributions, 

and therefore, during the period when Downs possessed authority 

to "control any contractual arrangements," Downs was offered 

$500,000 for the property. The offeror, Hammons, apparently 

was willing to pay any penalty resulting from the sale, as 
well as to cover acceleration of payments on the contract 

for deed, if acceleration resulted from the sale. Downs 

drew up a negotiated initial agreement providing for Smyk's 

approval and the approval of the trustee for the original 

owner (Carlson Trust) as required under the contract for 

deed signed in July of 1976. Downs claims he sought Smyk's 

approval of the sale, but Smyk refused to agree to sell the 

property. Smyk equalized his contribution with Downs' on 

February 10, 1978. 

On February 27, 1978, Downs filed suit in the District 

Court seeking specific performance of the June 1976 agreement, 

or, in the alternative, partition, and an accounting and 

payment of rentals. An amended complaint was filed in 

August of 1978 seeking to quiet title to Downs' one-half 

interest, partition, an accounting and payment of income 

due, and seeking a declaratory judgment as to Downs' right to 

control sale of the property. 

Following the taking of depositions of the parties, 

Downs filed a motion for summary judgment pursuant to Rule 

56, M.R.Civ.P., on August 23, 1978, on the ground that there 

was no genuine issue as to any material fact. After briefing 

on the motion, the District Court granted summary judgment 

on February 13, 1979, on Downs' claim to quiet title and his 

claim seeking an accounting and payment of rental and income 

due. Judgment was entered on February 23, 1979, decreeing 

that Downs owned an undivided 50% of the property under the 

agreement and that Smyk must account to Downs for rental and 

other income derived through the use of the property. he 

District Court denied Downs' requests for partition of the 

property and for "continual control of the contractual 

arrangements." 
Smyk appealed, and this Court affirmed the decision of 

the District Court, finding that summary judgment was appropriate and that under the June 1976 agreement, Downs1 advance 

of the downpayment of $60,000 gave him a 50% interest in the 

property. See Downs v. Smyk (1979), Mont . , 604 

P.2d 307, 36 St.Rep. 2300. Smykls petition for rehearing, 

based in his assertion that he was denied his right to trial 

by jury, was denied. 

Downs next moved the District Court for summary judgment 

entitling him to control contractual arrangements with 

regard to property for one year or, in the alternative, for 

partition of the property. He also moved the court to 

compel discovery relative to the accounting. Smyk continued 

to demand a jury trial, so Downs also moved for a declaration 

that Smyk was not entitled to a jury trial in this action. 

By order dated August 11, 1981, the District Court granted 

Downs1 motion to strike Smykls demand for a jury trial and 

granted summary judgment for Downs granting Downs exclusive 

control of the contractual arrangements in relation to the 

land for a period of one year. The ruling on the motion to 

compel discovery was withheld, because defendants were acting 

in a cooperative manner. Smyk appeals. 

I. 

Smyk argues that, because the remedy granted Downs was 

not identical to Downs1 rights under the June 1976 agreement, 

the remedy was not specific performance, and was not within 

the authority of the court to grant. Smyk maintains that 

because there was no provision in the agreement allowing 

Downs one year to control contractual arrangements, the 

District Court could not grant "specific performance" which 

included that provision. Then Smyk argues that since Downs 

failed to make contractual arrangements for the sale of the 

property before Smyk contributed $6O,OOO, he forever lost 
his right to do so. 

We do not agree. The effect of the remedy was to 

return the parties to the status quo at the time Downs 

claimed Smyk refused to agree to the sale of the property, 

then to require Smyk to specifically perform. Admittedly, 

the creation of one year as a reasonable time to retain that 

status quo, is somewhat artificial, but it is hardly a fatal 

flaw in the judgment. In Link v. State By and ~hrough Department of Fish and Game (1979), 180 Mont. 469, 591 P.2d 214, 

this Court found that the Fish and Game Commission had 

breached its agreement with park concessionaires Link, to 

maintain and operate a "mountain railroad" at Lewis and 

Clark Caverns. The Commission had obtained the railroad from 

Links, but had eventually abandoned it. This Court found 

that the District Court properly required both maintenance 

and repair of the railway - and return of the re-established 

and repaired railway to the concessionaires. We stated: 

"The only just, reasonable and feasible 

solution was to compel specific performance 

and return the Links to the position they 

were in at the time the March 1950 contract 

was entered into, where the Links could run 

the railroad and the visiting public would 

again be served with transportation facilities to the mouth of the cave." Link, 180 

Mont. at 482, 591 P.2d at 222. 

This Court's rationale in Link, 180 Mont. at 482, 591 P.2d 

at 222, follows: 

"In a specific performance case, the District 

Court sits as a court of equity and it is empowered to determine questions involved in the 

case and to do complete justice. Hames v. City 

of Polson (1950), 123 Mont. 469, 477, 215 P.2d 

950, 955. 

"'The plaintiffs may not in equity insist upon 

the performance of the terms of the lease and 

at the same time prevent the performance thereof. One who prevents the performance of the 

terms of a contract cannot avail himself of 

the nonperformance which he himself prevents. 

(Citations omitted).' Fey v. A.A. Oil Corp. 

(1955), 129 Mont. 300, 319, 285 P.2d 578, 588." 
We are unwilling to state that Smyk breached the June 1976 

agreement, or even that the terms of the agreement necessarily 

granted Downs the authority to decide -- to sell as well as to 

control contractual arrangements. Those matters must be 

determined upon remand to the ~istrict Court for trial. 

(See Issue 111.) We only state that, if such a right existed 

in Downs, and its exercise was prevented by Smyk, it was 

within the power of the trial court to restore the parties 

to the status quo before specifically enforcing the agreement. 

Nor do we find that the period of one year for Downs to 

control is unreasonable; the negotiation of the sale of a 

good-sized parcel of valuable real estate might well take a 

year. 

In short, we hold that the District Court acted within 

its authority in structuring the remedy it did. 

Smyk contends that he was denied his constitutional 

right to trial by jury on all issues raised in his case. He 

relies upon the Montana Constitution, Article 11, section 

26, which states: 

"The right of trial by jury is secured to 

all and shall remain inviolate. . ." 

and Rule 38(a), M.R.Civ.P., which provides: 

"The right of trial by jury as declared by 

the Constitution of the State of Montana or 

as given by a statute of the state of Montana 

shall be preserved to the parties inviolate." 

The right of trial by jury is guaranteed in virtually 

identical language in both the 1889 and the 1972 Montana 

Constitutions. The note following the guarantee in the 1972 

Constitution states: 

"For decisions relating to similar provisions 

in the 1889 Constitution, see annotations following sec. 23, Art. I11 of the 1889 Constitution. . . I' 
The position of this Court in the matter of right to jury 

trial in equity cases under the 1889 Constitution was clearly 

set forth in Little v. Mackel (1968), 151 Mont. 421, 425, 

"This action is one of specific performance 

and is one that our Court handles under its 

equitable jurisdiction. It has long been 

recognized that specific performance of a 

contract is a matter of equitable cognizance. 

This Court held, in In re Bank's Estate, 80 

Mont. 159, 260 P. 128, that 'The power to 

enforce specific performance of a contract is 

vested solely in courts having equitable jurisdiction; the remedy is purely equitable, as, 

at common law, the only remedy available to a 

party injured by a breach of contract was an 

action for damages.' 

"On the question of a jury trial for such 

equitable actions this Court has held: 'It is 

well settled by the decisions of this court 

that in equity cases the judge may call a jury 

to his assistance if he chooses, but is not 

bound to do so. If he does, he is not bound 

by the findings, but may reject them in whole 

or in part and make findings of his own. Therefore he is not required to submit the whole 

case to the jury, but only such issues of fact 

as he may choose. Whether he adopts the one 

course or the other, the ultimate result is 

to be regarded as emanating from the judge, 

and its correctness is to be determined by 

a review of his action, and not that of the 

jury by the standard of counsel's judgment 

as to what the jury ought to have been required to find. (citations omitted.)" 

The transcript of the 1971-72 Montana Constitutional 

Convention (Transcript) indicates that the only changes in 

the 1889 Constitutional guarantee of right of trial by jury 

involved criminal causes; except for those changes, the 

transcript states: "The remainder of the section is proposed 

without change." Transcript, Vol. 11, p. 642. Finally, 

Delegate Holland did in fact move specifically to extend 

jury trial rights to equitable actions, by rephrasing the 

guarantee to read: "The right of trial by jury shall, 

in all cases in law and equity, be secured to all. . ." The 

motion failed. Transcript, Vol. V, p. 1792. 
It is evident to this Court that the 1972 Montana 

Constitution does not extend the right of trial by jury to 

equitable actions, and that the rule articulated in Little, 

supra, is applicable here. 

Smyk's reliance upon Rule 38(a), M.R.Civ.P., is also 

misplaced, as Rule 39 clearly indicates the right stated in 

Rule 38(a) is not absolute. Rule 39(a) refers to the court's 

authority to find "that a right of trial by jury of some or 

all of those issues does not exist," "those issues" being 

the issues as to which jury trial is demanded. Rule 39(c) 

refers to actions "not triable of right by a jury." The 

rules do not indicate which actions and issues do not carry 

a right to jury trial. Early case law, which is still 

viable, together with the transcript of the 1972 Constitutional 

Convention, has filled that gap, and firmly establishes that 

the right to trial by jury does not attach to cases in 

equity. Smyk has no constitutional right to demand a jury 

trial in this cause. 

Smyk also argues that the remedy granted by the District 

Court went beyond specific performance, and thus was not an 

equitable remedy. We have concluded, infra, that the District 

Court acted within its authority in granting specific performance 

in the manner it did. The remedy, like the action, remains 

an equitable one. 

Smyk argues that he was entitled to have a jury make 

factual determinations concerning the accounting and payment 

to Downs of rental income from the property. As Downs 

correctly points out: 

"[Tlhe issue is improperly raised. The accounting was ordered by the District Court in the 

Order dated February 13, 1977, granting partial 

summary judgment. Smyk appealed that Order but 

made no objection to the Court's ordered accounting. He cannot now raise this issue on a second 

appeal. " 
Furthermore, in 1981, Downs sought only to have the Court 

compel discovery, claiming that Smyk refused to surrender to 

Downs information crucial to the accounting. There was no 

real factual issue, and, as the order of August 11, 1981, 

reflects, Smyk had cooperated with Downs' demands for discovery, 

and there was no present need to rule on Downs' motion to 

compel discovery. There is no merit in this argument. 

The District Court properly ruled that Smyk was not 

entitled to trial by jury as a matter of right. 

111. 

The final and determinative issue before this Court is 

whether summary judgment was appropriate. Smyk addresses 

this issue in his reply brief in response to two arguments 

in Downs' respondent's brief. See M.R.App.Civ.P., Rule 

23(c). Downs states: (1) "It is uncontested that Downs had 

obtained a ready and willing buyer before Smyk's contribution 

had equalled Downs', but Smyk refused to sell." (2) h he 

intent of the parties at the time the contract was entered 

into was that Downs would have control over contractual 

arrangements with regard to the property until such time as 

Smyk's contribution equalled Downs'. Downs attempted to 

exercise that right but Smyk wrongfully refused to sell the 

property to a third party." 

Smyk now argues that the record before the District 

Court clearly indicated his position: (1) that the intent 

of the parties in granting Downs temporary control over 

contractual arrangements did not include granting him the 

right to determine that the property would be sold; (2) that 

Downs never presented Smyk with a concrete offer he could 

either accept or reject. Smyk maintains that these unsettled 

factual questions should have precluded summary judgment. 

We agree. 
"Under Rule 56(c), M.R.Civ.P., a summary 

judgment is proper only if the record discloses no genuine issue of material fact 

and that the movant is entitled to judgment as a matter of law. Reaves v. Reinbold (1980), Mont., 615 P.2d 896, 37 St. 

Rep. 1500; Rumph v. Dale Edwards, Inc. 

(1979), Mont., 600 P.2d 163, 36 St.Rep. 

1022. The party moving for summary judgment has the burden of showing the complete 

absence of any genuine issue as to all 

facts which are deemed material in light of 

those substantive principles which entitle 

him to a judgment as a matter of law. Big 

Man v. State (1981), Mont., 626 P.2d 235, 

38 St.Rep. 362; Harland v. ~nderson (1976), 

169 Mont. 447, 548 P.2d 613. Once the 

movant has established that no material 

issues of fact exist, the burden shifts to 

the opposing party to raise an issue of 

fact." Krone v. McCann (1982), Mont. , 638 P.2d 397, 399-400, 39 St.Rep. 10, 7- 

"It is well established in Montana that all 

reasonable inferences that may be drawn from 

the offered proof are to be drawn in favor 

of the party who opposes summary judgment. 

Reaves v. Reinbold (1980), Mont., 615 P.2d 

896, 37 St.Rep. 1500, and cases cited therein." Brown v. Merrill Lynch, Pierce, Fenner 

& Smith, Inc. (1982), Mont. , 640 

P.2d 453, 457, 39 St.Rep. 305, 309-310. 

In considering a motion for summary judgment, the court is 

to look at the record, which includes "pleadings, depositions, 

answers to interrogatories, and admissions on file, together 

with the affidavits, if any. . ." Rule 56(c), M.R.Civ.P. 

This action is based upon a complaint filed in February 

of 1978 and amended in August of 1978. The amended complaint 

alleges, among other things, that Smyk refused to agree to 

any sale of the property in question to the offeror, Hammons, 

despite repeated demands by Downs that he do so; and that 

such refusal was in violation of Downs' rights to control 

sale of the property under the June 1976 agreement. In his 

answer, filed in September of 1978, Smyk specifically 

denied the above allegations. 

Smyk, in his brief in opposition to Downs' August 1978 

motion for summary judgment, asserted that there were "numerous 
issues of material fact which the defendants contend to be 

genuine." Smyk stated that he "never received a concrete 

offer from anyone" for the property, and that Downs had 

presented no evidence to the contrary. He flatly denied 

that Downs requested that Smyk agree to a sale to Mr. Hammons 

or Hammons Industries, or presented him (Smyk) with a buysell agreement for examination. 

Downs, responding to Smyk's assertions, referred to the 

following few lines in Smyk's deposition, as he has continued 

to refer to and rely upon them: 

"Q. Now, Mr. Smyk, do you recall last fall 

that Mr. Downs requested that you agree to 

a sale of this property to a man named 

Hammons? A. Yes, he told me that he had 

been in contact with Hammons in regard to 

selling it, or trying to sell it, or buy it 

or whatever. 

"Q. Did you at any time agree to any such 

sale? A. No." 

Downs would have this Court interpret Smyk's statements as 

proof of both the statement and rejection of Downs' request 

that Smyk agree to the sale of the property to Hammons. But 

the statements could as reasonably be read to mean that, 

while Downs mentioned to Smyk in passing that Hammons had 

expressed interest in purchasing the property, he did not 

request or receive Smyk's approval. Smyk did not say that 

he refused to sell, only that at no time had he agreed to 

it. The record clearly indicates Smyk's repeated denial of 

Downs' assertion that Smyk had refused to sell the property. 

In the absence of proof that Smyk had so refused, we find 

Downs failed to establish that there existed no genuine 

issue of material fact. 

Smyk also maintains, as he has throughout this action, 

that neither party intended to sell the property and the 

June 1976 agreement providing for Downs' control of "any 

contractual arrangements" did not contemplate the possibility 
of Downs forcing Smyk to agree to sell the property. 

Ordinarily, extrinsic evidence of the terms of a written 

agreement is inadmissible. Section 28-2-905, MCA. However, 

where the terms of a document are unclear or ambiguous, and 

parol evidence will indicate the parties' purposes in 

executing the agreement and facilitate necessary interpretation 

of their intent, parol evidence will be admitted. See 

sections 28-2-905(a), (b) and 1-4-102, MCA; Fillbach v. 

Inland Construction Corporation (1978), 178 Mont. 374, 584 

P.2d 1274. In Thisted v. Country Club Tower Corporation (1965), 

146 Mont. 87, 96, 405 P.2d 432, 436, this Court, citing 

earlier cases, stated that, while the written instrument 

cannot be contradicted or varied by parol testimony, "[tlhe 

rule does not forbid an inquiry into the object of the 

parties in executing and receiving the instrument." (Cites 

omitted.) Here the District Court was presented with an 

inartfully drawn and imprecise instrument; reference to 

extrinsic evidence indicating the intention of the parties 

was proper. Moreover, because the same attorney represented 

both clients in drafting and witnessing the signing of the 

agreement, the intent of the parties, and the circumstances 

surrounding the agreement are particularly important. 

Downs has consistently maintained that his exercise of 

his "rights" under the June 1976 agreement was precluded by 

Smyk's refusal to agree to sell. Smyk has denied, from the 

time he answered the amended complaint, that Downs' rights 

included the right to control the decision -- to sell. The 

disputed provision merely states that Downs will control 

"any contractual arrangements" until contributions are 

equalized. It is unclear whether this provision is so broad 

that it allows Downs virtually unlimited control over the 

use and disposition of the land, or whether it merely means 
that, when the parties agree upon a certain course of action 

regarding the property, Downs will then control any contractual 

arrangements. 

The record contains the following statements: 

(Downs Deposition) : " [0] ur agreement was to 

buy the land and, as soon as we could sell 

it, to make a profit. It's just that simple. 

"Q. You have not at anytime had a professional appraisal of this property made. (No response. ) 

"Q. I believe that's what you told me earlier. 

A. That's right. 

"Q. Are you aware whether Mr. Smyk has ever 

done so? A. I don't know what Mr. Smyk has 

done. 

"Q. Or anyone else? A. --He wasn't trying 

to sell it. That wasn't what we was trying 

to do when we got in there." 

(Smyk's answers to interrogatories:) 

"The attached agreement is the written document the parties signed, although both realized that it did not in fact reflect the intention of the parties." 

In the original appeal, Downs v. Smyk, supra, this 

Court found that there was no genuine issue of material fact 

before the Court. Clearly, that finding is applicable only 

to those matters as to which summary judgment was actually 

granted; this Court will not determine the propriety of 

rulings which are not placed in issue on appeal. Here, 

however, there are clearly unresolved factual disputes which 

have existed from the inception of this action. It is 

evident to this Court that the District Court erred in 

finding that no genuine issues of material fact existed and 

granting summary judgment to Downs. 

Therefore, we reverse the District Court's order of 

August 11, 1981, and its final judgment entered September 

16, 1981, insofar as they grant Downs one year of control 
over contractual arrangements, and remand the matter for 

trial on the merits. We affirm the 3istrict Court in its 

determination that Smyk is not entitled to a jury trial in 

this matter. 

We do note, in returning this cause for trial, that 

the imprecision and incompleteness of several of the provisions 

in the June 1976 agreement warrant careful attention to the 

circumstances surrounding the agreement and the purposes and 

intentions of the parties in executing the agreement. We 

have pointed out that the provision allowing Downs control 

of "any contractual arrangements" until payments were equalized 

could mean either control over every decision regarding use 

and disposition of the property, or shared determinations of 

use and disposition, with Downs controlling all the consequent 

contractual arrangements. The agreement also fails to set 

forth the resulting rights and liabilities of the parties 

should Smyk default on the contract for deed, or should 

Downs force partition and sell his interest in the property. 

The provision that, after equalization, Downs and Smyk would 

share equally "all liabilities and profits, if any," leaves 

open the question whether "liabilities" includes payments on 

the contract for deed. The parties themselves appear to 

agree that Downs' payment of $60,000 toward the $300,000 

purchase price was all that was required of him, and that 

the remaining $240,000 was to be paid by Smyk. 

The imprecise agreement was witnessed by an attorney 

who was representing both parties, and firmly underscores 

the principle that an attorney cannot effectively represent 

the interests of adverse parties, or, as here, clients whose 

interests are clearly divergent and potentially adverse. 

We also note the failure of Downs to request specific 

performance as a remedy in his amended complaint. 

Reversed in part, affirmed in part and remanded to the 

District Court for further proceedings consistent with this 
opinion. 

We Concur: 

PA& ad+ 

Chief Justice