No. 96-325 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

CLYDE SCHRECKENDGUST, JR., 

Plaintiff and Appellant, 

v. 

FLORENCE BAPTIST CHURCH, INC., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

The Honorable Jeffrey H. Langton, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dirk A. Williams; Church, Harris, Johnson & 

Williams, Missoula, Montana 

For Respondent: 

David Rodli; David Rodli Law Offices, Missoula, 

Montana 

Submitted on Briefs: January 16, 1997 

Decided: January 30, 1997 

Filed: 
Justice Karla M. Gray delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

Clyde Schreckendgust, Jr. (Clyde) appeals from the judgment 

entered by the Twenty-First Judicial District Court, Ravalli 

County, on its order granting the motion for summary judgment filed 

by Florence Baptist Church, Inc. (Church). We reverse and remand. 

The dispositive issue on appeal is whether the District Court 

erred in determining that the Church met its initial burden of 

establishing that no genuine issue of material fact existed with 

regard to its compliance with the use restriction in the 1977 

warranty deed. 

FACTUAL BACKGROUND 

In 1975, Ken Cox founded the Church known then as the Florence 

Bible Church, and held worship services in the basement of his 

home. In April of that year, Clyde conveyed a one-acre parcel of 

land (Parcel A) in the Florence Orchard Homes subdivision, Ravalli 

County, to the Church via a special warranty deed which limited the 

use of Parcel A to noncommercial church purposes. One year later, 

Clyde conveyed another one-acre parcel of land (Parcel B) in the 

same subdivision to the Church via a warranty deed devoid of 

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limitation. The Church opened a school, known as the Florence 

Christian Academy, and began holding academic classes in 1976. The 

Church subsequently built a sanctuary and school building on 

Parcels A and B. The ownership and use of Parcels A and B under 

the deeds to those parcels are not at issue in this case. 

In 1977, the Church offered to purchase thirteen acres of land 

(the 13-acre parcel) adjacent to Parcels A and B from Clyde. At 

that time, the Church was conducting a five-day per week, Christian 

school with approximately 140 students from kindergarten through 

twelfth grade (K-12) on Parcels A and B. The Church wanted to 

build a larger church sanctuary and an athletic field on the 13- 

acre parcel and convert its existing church facility into an 

extension of the school building on Parcels A and B. 

Clyde declined the Church's offer to purchase the land. 

Later, however, he conveyed the 13-acre parcel to the Church and 

the Florence Christian Academy via a warranty deed (1977 warranty 

deed) which described the real property as follows: 

Lots Thi .rty (30), Thirty-one (31) and Thirty-two (32), 

Florence Orchard Homes, a platted subdivision of Ravalli 

County, Montana, LESS Parcel A and Parcel B located in 

said Lot 30, Certificate of Survey No. 836 which were 

previously conveyed; so long as said lands are used for 

school and Christian church pUrpOSeS, that is 

Fundamental, Bible believing, meeting the adademic [sic] 

requirements of Christian Education; grades K-12 and 

beyond, [sic] If this discontinues the property conveyed 

shall revert back to original owner or assigners [sic]. 

[Emphasis added.] 

As noted above, Parcels A and B had already been conveyed to the 

Church. The first portion of the quoted limitation in the 1977 

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warranty deed is referred to below as the use restriction; the 

second portion as the reversionary clause. 

The Church held academic classes at its school located on 

Parcels A and B through the 1985-1986 school year. Enrollment was 

l:.mited, however, in large part because many parents could not pay 

the tuition being charged. During the 1987-1988 and 1988-89 

academic years, only kindergarten and first grade students were 

enrolled at the Church's school on Parcels A and B. During the 

1989-1990 academic year, only kindergarten through third grade 

students were enrolled at the school. 

After the 1989-1990 school year, the Church continued to offer 

a four-day per week, kindergarten class taught by a state-certified 

elementary teacher at its school on Parcels A and B. In 1991, 

C:.yde met with Gary Randall (Randall), the Church's pastor at the 

time, to discuss the language of the 1977 warranty deed and the 

Church's intentions regarding its school. Randall stated in his 

a:ifidavit that he "expressed the church's continuing intent to have 

a school in operation on the property." In August of 1991, the 

Church began the Florence Baptist Bible Institute, a post-secondary 

education program, which--with the exception of one semester in 

1!>94--has been conducting classes since that time. 

After his 1991 meeting with Randall, Clyde apparently did not 

contact the Church until July 5, 1994, when he advised Randall that 

he would begin "foreclosure" proceedings on the 13-acre parcel 

unless the Church was operating a traditional on-premises K-12 

school by the end of August, 1994. The Church did not comply with 

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Clyde's demand by the deadline. It did, however, found the 

Florence Christian Academy Home School Association (FCABSA), 

apparently in 1994, and applied for membership in the Accelerated 

Christian Education program in late July of 1994; its membership 

application was approved in January of 1995. The Church 

administers the FCABSA, supervising families who belong to the 

FCABSA and who "home school" their children. It also provides 

those families with access to the school building and numerous 

resources, materials, curricula, guidance and certification. At 

the conclusion of each academic quarter, an award ceremony is held 

at the school for FCAHSA students; graduates of the FCAHSA receive 

a diploma from the Florence Christian Academy. Since its 

inception, the Church has held traditional worship services, Sunday 

school classes, adult Bible studies and teen group activities. 

PROCEDURAL HISTORY 

Clyde filed an action against the Church on November 1, 1994, 

seeking to quiet title to the 13-acre parcel in his name on the 

basis that the Church failed to comply with the use restriction 

contained in the 1977 warranty deed. He also sought to have the 

Church ejected from the 13-acre parcel based on its refusal to 

comply with his demand to vacate. 

The Church responded that, although it did not "currently 

regularly conduct on-premises private elementary and secondary 

school classes during weekdays," it was in compliance with the use 

restriction contained in the 1977 warranty deed. In addition, 

while the Church admitted that it had refused Clyde's demand to 

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vacate the 13-acre parcel, it alleged that its refusal was proper. 

Finally, the Church pled the affirmative defenses of accord and 

satisfaction, estoppel, and the statute of limitations. 

The Church subsequently moved for summary judgment on the 

basis that no genuine issues of material fact existed regarding its 

compliance with the clear and unambiguous restriction requiring use 

for "school and Christian church purposes" which was contained in 

the 1977 warranty deed. The Church also contended that the First 

Amendment to the United States Constitution prohibited the District 

Court from interpreting church doctrine and religious terminology 

in order to resolve any ambiguity regarding additional terms in the 

use restriction. In addition, the Church argued that the 1977 

warranty deed was orally modified in 1991 when Clyde gave the 

Church five years in which to be operating an on-premises K-12 

school. Finally, the Church maintained that Clyde's attempt to 

quiet title to the 13-acre parcel via exercise of the reversionary 

clause was barred by lathes. 

Clyde filed a cross-motion for summary judgment, contending 

that his quiet title action was purely a contract action without 

First Amendment implications. He asserted entitlement to judgment 

as a matter of law on the basis that the plain language of the use 

restriction contained in the 1977 warranty deed required the Church 

to maintain an on-premises K-12 academic school and that no genuine 

issue of material fact existed regarding the Church's failure to 

comply. Alternatively, he maintained that the parties' intent, 

custom and usage for at least fourteen years was that the Church 

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must ttoperatel' an on-premises K-12 academic school in order to 

comply with the use restriction. 

The District Court granted the Church's motion for summary 

judgment and denied Clyde's cross-motion. Among other things, it 

determined that the Church had established the absence of any 

genuine issues of material fact regarding its compliance with the 

use restriction contained in the 1977 warranty deed and that Clyde 

failed to raise a genuine issue of material fact in that regard. 

The District Court subsequently entered judgment in favor of the 

Church. 

Thereafter, Clyde filed a motion to alter or amend judgment 

which was deemed denied by operation of law. Clyde appealed. 

DISCUSSION 

Did the District Court err in determining that the Church 

met its initial burden of establishing that no genuine 

issue of material fact existed with regard to its 

compliance with the use restriction in the 1977 warranty 

deed? 

Summary judgment is proper when no genuine issues of materia 

fact exist and the moving party is entitled to judgment as a matter 

of law. Rule 56(c), M.R.Civ.P. We review a district court's grant 

or denial of a motion for summary judgment de nova, applying the 

same Rule 56(c), M.R.Civ.P., criteria used by that court. Carelli 

v. Hall (Mont. 1996), 926 P.2d 756, 759, 53 St.Rep. 1116, 1117 

(citation omitted). The moving party has the initial burden of 

establishing the absence of genuine issues of material fact and 

entitlement to judgment as a matter of law. Carelli, 926 P.2d at 

759 (citation omitted). Only where the moving party satisfies its 
initial burden does the burden shift to the party opposing summary 

judgment to present evidence raising a genuine issue of material 

fact. Carelli, 926 P.2d at 759-60 (citation omitted). 

The arguments made by Clyde and the Church to both the 

District Court and this Court refer interchangeably, and often in 

the aggregate, to Parcels A and B and the 13-acre parcel, often 

simply referring to activities on "the property." They also 

apparently assume that the Church's activities on Parcels A and B 

constitute activities on the 13-acre parcel to which the use 

restriction and reversionary clause at issue apply and that, if 

such activities meet the use restriction, those activities would 

defeat both Clyde's exercise of the reversionary right and his 

attempt to quiet title to the 13-acre parcel. It is not clear why 

the parties proceeded in this manner. In any event, however, the 

District Court joined in this confusion by failing to carefully 

describe whether certain activities are taking place on Parcels A 

and B or on the 13-acre parcel; indeed, it appears that the court 

followed the parties' lead in grouping all the property together 

and assuming that any church activities anywhere on "the property" 

related to the 13-acre parcel, the use restriction and the 

reversionary clause. 

The problem is that the record before us does not establish 

any activity at all by the Church on the 13-acre parcel. Clyde 

argues in his opening brief on appeal that, regardless of the 

correct interpretation of the use restriction relating to school 

purposes, the record does not support any church use of the 13-acre 

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parcel for any--even tangential--school purpose. The Church 

responds that Ken Cox's July 21, 1995, affidavit establishes that 

the 13-acre parcel "is used--as it has been since 1977 when the 

land was donated by Clyde--as an athletic field." 

Ken Cox's affidavit states: 

5) Upon the initial two acres [Parcels A and B] was 

situated the church and school. It was the desire of the 

church board to purchase from Mr. Schreckendgust the 

adjacent 13 acres in order to build a larger church 

sanctuary and an athletic field, converting the existing 

church building on the initial two acres into an 

extension of the already established school. The church 

board desired nothing more than to expand the ministry 

already started. 

6) Approximately in May, 1977, the church elders of 

Florence Bible Church, including Affiant, invited Mr. 

Schreckendgust to the church to show him a threedimensional model of the proposed expansion project which 

would include a large church sanctuary and an athletic 

field for the 13 adjacent acres owned by Mr. 

Schreckendgust. No other buildings or representations 

were made on the three-dimensional model. No school 

buildings were shown on the model or proposed verbally or 

otherwise for the 13 acres. 

While the affidavit reflects the Church's desires and intent 

regarding use of the 13-acre parcel, it clearly does not establish 

either the existence or the use of an athletic field on the 13-acre 

parcel after Clyde deeded it to the Church. 

Nor does any other affidavit or exhibit establish that the 

Church ever made use of the 13-acre parcel. The affidavit of Mark 

Davis, the Church's senior pastor from October of 1987 through 

September of 1989, talks about a gentleman using "the bus barn and 

parsonage" for his own personal use. However, the affidavit does 

not state on which parcel the bus barn and parsonage were located. 

The Church's brief supporting its summary judgment motion in the 

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District Court discusses improvements, such as a septic system and 

drain field, and renovations on "the property." Again, the brief 

does not establish that the referenced improvements and renovations 

were on the 13-acre parcel. In January of 1987, the Church's 

attorney wrote a letter to Clyde, exploring the possibility of 

purchasing the "unconditional conveyance of the lands in Lots 30, 

31 and 32 which have previously been the subject of the conditional 

conveyance." He refers, in that letter, to substantial 

improvements placed on the land, but does not elaborate. 

The Church contends that Clyde conceded, for summary judgment 

purposes, that the Church and the full-time, on-premises K-12 

school the Church earlier had been conducting were Christian, 

"Fundamental and Bible believing" and that the school met the 

academic requirements of Christian education. It also contends 

that he conceded that the kindergarten and the home school 

education classes offered by the Church are Christian, Fundamental, 

Bible believing and meet the academic requirements of kindergarten 

and home school education, respectively. While that may be true, 

those concessions do not establish that the kindergarten classes, 

the home school administration or the home school awards ceremonies 

were conducted on the 13-acre parcel. Indeed, the record strongly 

suggests that all of those activities take place in the Church 

buildings located on Parcels A and B. 

Before the Church can establish the absence of genuine issues 

of material fact regarding its compliance with the use restriction 

in the 1977 warranty deed, it must establish--at a minimum--that it 

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makes use of the 13-acre parcel for church and school purposes. It 

has not done so. We hold that the District Court erred in 

determining otherwise and, for that reason, also erred in granting 

summary judgment to the Church. The court having erred on this 

threshold question, we do not address the legal analysis it 

applied, or the conclusion it reached, with regard to whether the 

use restriction in the 1977 warranty deed is ambiguous; those 

portions of the District Court's opinion and order on summary 

judgment are vacated pending further consideration, as may be 

appropriate, on remand. 

Reversed and remanded for further proceedings consistent with 

this opinion. 

We concur: 

Justices / 

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