No. 94-607

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

REALTY TITLE COMPANY, INC.,

A Montana Corporation,

Plaintiff, Counterclaim Defendant

and Respondent,

-vsFRANCIS M. TINDALL,

Defendant, Counterclaimant,

Crossclaimant and Appellant,

and

JACK K. MORGENSTERN,

Defendant, Counterclaimant,

Crossclaimant and Respondent.

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

The Honorable Peter L. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jack R. Stone, Attorney at Law, Lewistown, Montana

For Respondents:

James L. Stogsdill, Attorney at Law, Lewistown,

Montana (for Realty Title)

William E. Berger; Wilkins and Berger, Lewistown,

Montana (for Morgenstern)

Filed:

Submitted on Briefs: March 30, 1995

Decided: May 4, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

This is an appeal from and order on motions for summary

judgment of the Tenth Judicial District Court, Fergus County. We

affirm.

The sole issue on appeal is whether the District Court abused

its discretion in concluding that Jack Morgenstern (Morgenstern)

was entitled to exercise the prepayment privilege provided in his

contract for deed with Francis Tindall (Tindall).

On January 31, 1980, Tindall and Morgenstern entered into a

contract for deed whereby Tindall sold Morgenstern certain real

property. Attached to the contract was an amortization schedule

(Schedule A) that set forth payments and designated principal and

interest. The contract specifically allowed the purchaser to

prepay the mortgage. On January 4, 1993, Morgenstern exercised his

prepayment privilege by paying $19,899.22 to Realty Title Company,

Inc. (Realty Title), the escrow agent for this contract for deed.

That amount represented the full principal and interest due at that

time as indicated by Schedule A, and escrow service fees. Realty

Title delivered the prepayment to Tindall and the proper title,

etc., to Morgenstern. Tindall attempted to return the payment to

Realty Title, claiming, among other things, that the contract for

deed was reinstated, that Schedule A should not be followed, and

that Morgenstern was in default. Realty Title filed a complaint of

interpleader to force Tindall and Morgenstern to resolve the

conflict so it could complete its escrow responsibilities without

incurring liability. Both Tindall and Morgenstern filed cross2
claims and counterclaims.

The contract for deed contains the following relevant

provisions:

PURCHASE PRICE

1 . The purchase price herein specified and which

Purchaser agrees to pay and Seller agrees to accept as

payment in full for said real and personal property is

the sum of SEVENTY THOUSAND AND NO HUNDREDS DOLLARS

($70,000.00) payable as set forth on Schedule ltA1'

attached hereto and made a part hereof for all intents

and purposes, together with interest at the rate of ten

percent (10%) per annum on the unpaid principal balance.

. . .

3 . The purchaser shall have the right and

priviledge [sic] of prepaying up to 29% of the unpaid

balance of the original purchase price, together with any

unpaid interest accrued to the time of such prepayment at

any time after the fifth-year payment is paid and

received; provided that no more than 29% of the total

purchase price may be paid in any one year.

From 1981 to 1993 when Morgenstern made his final payment, the

parties followed all contractual provisions, including Schedule A,

without complaint or challenge by any party. In January 1993,

Morgenstern exercised his prepayment privilege by tendering a check

for $19,899.22, which represented payment of outstanding principal

plus accrued interest and escrow service fees. Tindall argues that

the January 4, 1993 payment was not sufficient, comparing that

payment with usual amortization. Tindall's arguments are not

tenable.

The parties clearly intended Schedule A to govern payments,

including allocation of principal and interest and the unpaid

balance. Paragraph 3, quoted above, permits prepayment with

certain limitations. The language and intent of the contract is

3
clear. We have held that:

[wlhere the language of a written contract is clear and

unambiguous there is nothing for the court to construe;

the duty of the court is simply to apply the language as

written to the facts of the case, and decide the case

accordingly. [Citations omitted.] Courts have no power

to change the contract or the express language used.

[Citation omitted.]

Bain v. Williams (19901, 245 Mont. 228, 231-32, 800 P.2d 693, 695.

The contract in the instant case is clear. The prepayment

provision and Schedule A are the contract's controlling provisions

and were followed by all parties until Tindall returned

Morgenstern's final payment. While the contract may be poorly

worded in parts, it is not ambiguous nor are there any provisions

requiring construction or interpretation. The terms of the

contract are clear. Tindall received what he bargained for.

Our standard of review on a grant of summary judgment is the

same as that of a trial court. Minnie v. City of Roundup (1993),

257 Mont. 429, 431, 849 P.2d 212, 214. "Summary judgment is proper

only when no genuine issue of material fact exists and the moving

party is entitled to a judgment as a matter of law." Spain-Morrow

Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-

32. We hold that the contract is clear, as evidenced by the

contractual language and the parties' observance of that language

since 1981. The District Court correctly concluded that there is

no genuine issue of material fact between the parties. Morgenstern

was entitled to judgment as a matter of law.

Affirmed.

Pursuant to Section I, Paragraph 3 cc), Montana Supreme Court

4
1988 Internal Operating Rules, this 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 Montana Law Week, State Reporter, and West Publishing Company.

W e concur:

//A<...

Chief Justice