97-356

 No. 97-356

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

GLACIER PARK COMPANY, 

a Delaware corporation,

 Plaintiff and Respondent,

 v.

MOUNTAIN, INC., a 

Tennessee corporation,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fourteenth Judicial District,

 In and for the County of Musselshell,

 The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 George T. Radovich, Attorney at Law, Billings, Montana

 For Respondent:

 Jeanne Matthews Bender; Holland & Hart, Billings, Montana

 Submitted on Briefs: October 9, 1997

 Decided: November 18, 1997

Filed:

 __________________________________________

 Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-356%20Opinion.htm (1 of 8)4/16/2007 4:11:49 PM
97-356

 Mountain, Inc., (Mountain) appeals from the decision of the Fourteenth Judicial

District Court, Musselshell County, granting Glacier Park Company's (Glacier's) 

motion

for summary judgment. At the District Court, Mountain asserted that Glacier's motion

should not be granted because genuine issues of material fact had not been resolved. 

Additionally, Mountain sought equitable relief, claiming it paid an exorbitant 

amount of

money toward a coal lease with Glacier and made what it believes were diligent 

efforts

to comply with the provisions of the coal lease. The District Court denied 

equitable relief

finding that Mountain had not complied with õ 28-1-104, MCA, which allows relief from

forfeiture. The court also granted Glacier's motion for summary judgment concluding

that there were no genuine issues of material fact and that Glacier was entitled to

judgment as a matter of law. We affirm. 

 Background

 Glacier owns a coal estate and other real property in the Bull Mountains near

Roundup, Montana. In 1995, Mountain contracted with Glacier to assume the operation

of a coal mine located on that property. Mountain executed the relevant documents,

including a coal lease and a promissory note. During the course of the transactions,

Mountain was represented by counsel and by its president, John Paul Baugues, Jr., an

experienced coal mine operator. 

 The coal lease provided for advance minimum royalty payments. The first

payment of $600,000 was paid by Mountain at the time of contracting and covered its

royalty obligations through July 1, 1996. The coal lease also provided that, 

beginning

July 1, 1996, Mountain would pay additional royalty payments of $150,000 on the first

day of each calendar quarter. The amount of the royalty payments was to gradually

increase over the course of the ten-year lease. In addition, the promissory note 

required

Mountain to make five interest payments and pay the entire $273,000 of principal with

accrued interest on February 17, 1996. 

 Shortly after Mountain leased the interest in the coal estate, but before 

Mountain

began operations, a fire destroyed the coal treatment plant. The record is unclear 

about

who received the insurance proceeds, but Mountain asserts that it did not receive any

money as a result of the fire. Mountain contends that it was forced to rebuild the 

plant

at its own expense before it could begin operations. The plant was completed 

sometime

during the winter of 1995-96; however, Mountain claims it was still unable to 

operate due

to extraordinary weather delays resulting from excessive snowfall. As a result of 

these

unexpected delays, Mountain was unable to meet its February 17, 1996 payment

obligation under the note.

 Pursuant to Section 24.7 of the coal lease, Glacier served Mountain with a 

Notice

of Default on February 22, 1996. That section provides:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-356%20Opinion.htm (2 of 8)4/16/2007 4:11:49 PM
97-356

 Notwithstanding anything contained in this Lease to the contrary, if Lessee

 shall fail to pay, when due, any payment of principal or interest due under

 that certain Promissory Note dated August 17, 1995, from Lessee, as

 Maker, to Lessor, as Lender, and such failure shall continue for a period

 of ten (10) days after Lessor shall have given written notice of such default

 to Lessee, then this Lease and the leasehold estate created hereby shall

 automatically terminate and Lessor shall hold and possess the Premises free

 and clear of all claims of Lessee therein. [Emphasis added.]

Mountain failed to cure the default within the time allowed. After the ten-day grace

period prescribed by Section 24.7 had expired, Mountain attempted to make a partial

payment on the note. The check tendered by Mountain was written on a closed account;

the bank refused to honor the check. 

 Between Mountain's February default on the note and July of 1996 (when the first

royalty payment was due), Mountain attempted to negotiate alternative payment plans

with Glacier. Glacier was accommodating, but Mountain still could not meet its 

payment

obligations. On July 23, 1996, Glacier served Mountain with a three-day Notice to 

Quit

maintaining that the lease was terminated pursuant to Section 24.7 of the coal lease 

and

asserting its right to possession of the property. Mountain disregarded the notice 

and

continued its mining operations. Glacier then filed an action for unlawful detainer 

in

District Court seeking to regain possession of the coal estate and damages for 

Mountain's

wrongful occupation of the property. On January 10, 1997, Mountain made one final

attempt to satisfy its obligations under the coal lease by tendering a check for 

$733,000

which it claimed was its "best estimate" of the amount due. Glacier rejected the 

check,

again asserting that the coal lease had terminated under Section 24.7. Glacier 

deposited

the check with the District Court pending the outcome of the case. The District 

Court

entered summary judgment in favor of Glacier, and ordered Mountain to immediately

vacate the premises and pay Glacier treble damages of $1,200,000 pursuant to õ 70-27-

205(2), MCA. Mountain appealed the decision of the District Court.

 Issues Presented

 1. Did the District Court err in granting summary judgment?

 2. Did the District Court err in denying Mountain's request for equitable 

relief

under õ 28-1-104, MCA?

 Discussion

 I.

 We review a district court's grant of summary judgment de novo and apply the

same criteria as the district court pursuant to Rule 56, M.R.Civ.P. Singleton v. L.

P.

Anderson Supply Co., Inc. (Mont. 1997), 943 P.2d 968, 54 St.Rep. 738, 739. Rule 56,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-356%20Opinion.htm (3 of 8)4/16/2007 4:11:49 PM
97-356

M.R.Civ.P., allows the court to grant summary judgment when it finds there are no

genuine issues of material fact and the moving party is entitled to judgment as a 

matter

of law. The initial burden of showing the absence of any genuine issue of material 

fact

falls on the moving party. Singleton, 943 P.2d at 970. If the moving party 

satisfies its

burden, the burden shifts to the party opposing the motion to establish the 

existence of

a genuine issue of material fact. Singleton, 943 P.2d at 970. Glacier, as the 

moving

party, had the initial burden of showing that no genuine issue of material fact 

existed.

 Glacier asserts that the uncontested facts show that Mountain was guilty of

unlawful detainer as a matter of law. The law providing landowners relief from 

unlawful

detainer is codified in õ 70-27-108(3), MCA, as follows:

 A tenant of real property or mining claim, for a term less than life, is guilty

 of unlawful detainer: 

 . . . 

 (3) when he continues in possession, . . . after a neglect or failure

 to perform other conditions or covenants of the lease or agreement under

 which the property is held . . . than the one for the payment of rent, and

 3 days' notice in writing, requiring the performance of such conditions or

 covenants or the possession of the property, shall have been served upon

 him . . . . Within 3 days after the serving of the notice, the tenant . . .

 may perform the conditions or covenants of the lease . . . and thereby save

 the lease from forfeiture. If the covenants and conditions of the lease

 violated by the lessee cannot afterward be performed, then no notice, as last

 prescribed herein need be given to said lessee . . . . 

 In this appeal, Mountain asserts that "numerous . . . factual questions 

[exist] . .

. to preclude summary judgment." What Mountain fails to assert, however, are genuine

issues of material fact. Mountain concedes that under the coal lease, it was a 

tenant of

real property for a term of ten years. Furthermore, Mountain does not dispute that 

it

failed to make payment under the note as required. Mountain does, however, contend

that it received insufficient notice under the unlawful detainer statute. In 

support of this

contention, Mountain asserts that the statute requires that the notice provide the 

tenant

with the option of either paying the rent or vacating the premises within three 

days. 

Mountain maintains that the notice from Glacier demanded only that Mountain vacate 

the

premises and did not give Mountain the option of paying rent. Mountain claims that 

the

failure of the notice to contain language giving them an option to pay rent should 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-356%20Opinion.htm (4 of 8)4/16/2007 4:11:49 PM
97-356

have

prevented summary judgment. 

 Section 70-27-108, MCA, states that the notice of unlawful detainer must require

performance of the conditions or covenants or possession of the property. However, 

it

goes on to provide that "if the covenants or conditions of the lease violated by 

lessee

cannot be performed, then no notice as last prescribed herein need be given to said

lessee." Section 70-27-108(3), MCA. Glacier contends that Mountain's default 

(failure

to make payment after notice of default and expiration of the grace period) resulted 

in

automatic termination of the lease under Section 24.7. As of March 4, 1996 (ten days

after receiving the February 22, 1996 notice of default), when the contractual grace

period expired, the lease, by its own terms, automatically terminated and Mountain no

longer had the ability to perform. The unlawful detainer statute, õ 70-27-108, MCA,

which Glacier invoked some four months later, did not require that Glacier grant

Mountain further time to cure the default. The statutory three-day period for

performance of conditions only applies to situations where the defaulting party is 

still in

a position to perform; it does not pertain to situations where the defaulting party 

has

already been given notice of default and has failed to cure the default within the 

specified

grace period. Under such circumstances, performance is no longer possible and õ 70-

27-

108(3) merely requires that the defaulting party be given notice of demand to vacate 

the

property. Glacier's notice to vacate complied with the statute and was consistent 

with its

position that the lease had terminated.

 Mountain also asserts that the notice was deficient because it did not contain a

reference to the amount due. Mountain makes that assertion based on the language of 

õ

70-27-108(2), MCA. However, as we explained in Rasmussen v. Lee (1996), 276 Mont.

84, 91-92, 916 P.2d 98, 103:

 Section 70-27-108, MCA, provides three situations where a tenant can be 

 found liable for unlawful detainer. Subsection (1) provides for continued

 possession "after the expiration of the term for which it is let to him

 without permission of the landlord." Subsection (2) provides for continued

 possession "after default in the payment of rent." Subsection (3) provides

 for continued possession "after a neglect or failure to perform other

 conditions or covenants of the lease."

The amount owing in this case was not rent. Rather, it was due to a failure to make

payments on the promissory note. Therefore, subsection (2) does not apply to such a

payment. Instead, subsection (3) pertaining to failure to perform conditions or 

covenants

other than rental payments applies. That section does not require the notice to 

reference

an amount due. Moreover, as stated above, the lease had terminated as of the time

Mountain received notice to vacate; therefore, Mountain could no longer cure the 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-356%20Opinion.htm (5 of 8)4/16/2007 4:11:49 PM
97-356

default

by paying the note. At that point in time, the amount due was irrelevant. 

Therefore, no

genuine issue of material fact exists regarding the sufficiency of the notice.

 Finally, Mountain argues that when Glacier rejected its check tendered January 

10,

1997 for $733,000 it should have given notice of why it was rejecting the check and 

how

Mountain could cure the defect. Since Glacier contended that the lease had 

terminated,

it did not give notice of how to cure the defect. The check was defective simply 

because

it was too late. Mountain's belated attempt to cure its default was nearly one year 

after

the payment was due and about one month before the summary judgment hearing on its

unlawful detainer. At that juncture, Glacier had opted to cease dealing with 

Mountain,

it simply wanted its property back.

 Based on the statutory language and the uncontested facts, we conclude that 

Glacier

satisfied its burden of showing no genuine issue of material fact and that Glacier 

was

entitled to judgment as a matter of law.

 II.

 Mountain requests that this Court grant equitable relief from the forfeiture. 

Our

standard of review in equity cases is set forth in õ 3-2-204(5), MCA. Under that

provision, we have " 'a duty to determine all of the issues of [the] case and to do

complete justice.' " Blakely v. Kelstrup (1994), 267 Mont. 274, 276, 883 P.2d 814, 

816

(quoting Peterson v. Montana Bank of Bozeman (1984), 212 Mont. 37, 49, 687 P.2d

673, 679). Section 24.7 of the coal lease provided that if after receiving notice 

of default

Mountain failed to cure the default within the ten-day grace period, the lease would

"automatically terminate." Nonetheless, in Blakely, we explained that "[a] contract 

which

requires forfeiture in case of default does not divest a court of equity of its 

power to

relieve a party from the consequences of his default." Blakely, 883 P.2d at 817. 

Accordingly, even though the parties agreed that forfeiture would result from 

Mountain's

default, this Court may, under appropriate circumstances, still grant equitable 

relief.

 The party requesting equitable relief must set forth facts which appeal to the

conscience of a court of equity. Parrott v. Heller (1976), 171 Mont. 212, 214, 557 

P.2d

819, 820. In addition, we have repeatedly held that when requesting equitable relief

under õ 28-1-104, MCA, the party requesting such relief must attempt to make payment

of the entire contract balance within a reasonable time after service of a notice of 

default. 

Only by making such full compensation can a party be relieved from the forfeiture. 

Blakely, 883 P.2d at 817 ("[b]efore a party will be granted relief from forfeiture 

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-356%20Opinion.htm (6 of 8)4/16/2007 4:11:49 PM
97-356

under

õ 28-1-104, MCA, the party must offer to make full compensation under the contract");

Club Buffet Bar, Inc. v. Lilienthal (1994), 268 Mont. 164, 885 P.2d 526 (party

requesting relief from forfeiture under õ 28-1-104 must tender full compensation as a

condition precedent to relief); Daugherty Cattle Co. v. General Const. Company 

(1992),

254 Mont. 479, 839 P.2d 562 (antiforfeiture statute did not prohibit seller from 

declaring

forfeiture when purchaser tendered less than full compensation as contemplated by õ 

28-

1-104); Schweigert v. Fowler (1990), 240 Mont. 424, 784 P.2d 405 (õ 28-1-104, MCA,

is not helpful to Schweigerts because they did not offer to pay full consideration 

for the

property). 

 Mountain insists that it acted in good faith throughout the time that it held

Glacier's property but contends that, because of "acts of God" (fire and excessive

snowfall), it experienced severe financial distress and could not meet its 

obligations under

the note. Mountain maintains that it made its best efforts to perform its 

obligations

under the contract and did not act in a "grossly negligent, willful or fraudulent" 

manner

that would prevent equitable relief from forfeiture under õ 28-1-104, MCA.

 Glacier, on the other hand, asserts that Mountain's conduct was grossly 

negligent,

willful and verged on fraudulent. Glacier contends, first, that Mountain knowingly

tendered a check drawn on a closed account. In addition, Mountain, despite

accommodations and notices from Glacier, continued to mine and sell coal while in

default for over a year. Glacier further asserts that by failing to meet its 

financial

obligations not only to Glacier, but to other creditors, Mountain placed the coal 

site

permit in jeopardy. Finally, Glacier maintains that Mountain's "eleventh hour" 

attempt

to cure the default was not in accord with õ 28-1-104, MCA, because Mountain did not

tender "full compensation" under the contract. As a result of the foregoing, Glacier

requests that this Court deny Mountain's request for equitable relief.

 This Court has the equitable power to relieve a party from the harsh effect of a

forfeiture. However, the circumstances warranting such relief must not only meet the

statutory requirements of tendering full compensation, and not acting in a grossly

negligent, willful or fraudulent manner, but also, the party must assert facts which 

appeal

to the conscience of the court of equity.

 Mountain's request for equitable relief is deficient for two reasons. First,

Mountain did not, at any time, attempt to tender full compensation under the coal 

lease. 

Mountain submitted two checks. The first check was written for a sum substantially 

less

than the amount due and was written on a closed account. Mountain tendered the 

second

check claiming it satisfied its "best estimate" of the amount due; however, the 

$733,000

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-356%20Opinion.htm (7 of 8)4/16/2007 4:11:49 PM
97-356

check did not approach the full amount necessary to satisfy Mountain's obligations 

under

the terms of the ten-year lease as õ 28-1-104, MCA, contemplates. In addition, the

second check, tendered nearly one year after it was due, was not presented within a

reasonable time after the default.

 Second, Mountain has failed to appeal to the conscience of this Court. We have

held that mere financial inability is not sufficient to appeal to the conscience of 

a court

of equity. Kovacich v. Metals Bank & Trust Company (1961), 139 Mont. 449, 451, 365

P.2d 639, 640. Moreover, this Court will not "set aside the deliberate contracts of

parties because time has demonstrated that the obligation of one of the parties was

onerous or unprofitable." Kovacich, 365 P.2d at 640. 

 Mountain asserts that the Court should grant equitable relief as it did in 

Parrott v.

Heller (1976), 171 Mont. 212, 557 P.2d 819. Indeed, in Parrott, we concluded that 

the

Hellers were entitled to equitable relief under õ 17-102, RCM (1947) (now õ 28-1-104,

MCA) despite the fact that the Hellers' forfeiture was caused solely by their 

inability to

pay. The Hellers experienced financial hardship due to crop failures, much like

Mountain experienced financial hardship due to fire and excessive snowfall. However,

the Hellers' situation differed in that they had made scheduled payments for four

consecutive years before defaulting. The Hellers had accumulated substantial equity 

in

the land. The Hellers, throughout the period of default, made several attempts to 

secure

the necessary funds. In addition, the Hellers, unlike Mountain, paid the entire 

contract

balance plus interest as soon as they acquired the funds. The facts of Parrott are

distinguishable, and thus it does not control the resolution of this case.

 Mountain's request for equitable relief is deficient because it fails to meet 

the

statutory and common law criteria. We conclude that the District Court did not err 

in

denying equitable relief. Affirmed.

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-356%20Opinion.htm (8 of 8)4/16/2007 4:11:49 PM