No. 90-429 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

JOHN HOLLAS and SHEILA HOLLAS, ;sa, 

Plaintiffs and Appellants, 

-vJACK L. McLEOD, JACK McLEOD, and JAN 1 5 1991 

ASSOCIATES, INC., and GLENN PRYOR 

and LOIS PRYOR, 

CLERK OF 8U*r$g~g 

UP IWU~~PAN;B Defendants and Respondents. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David N. Hull, Helena, Montana 

For Respondent: 

James E. Purcell, Butte, Montana 

Filed: 

Submitted on Briefs: November 29, 1990 

Decided: January 15, 1991 
Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiffs John Hollas and Sheila Hollas sought specific 

performance of a contract for deed, naming Jack L. McLeod, Jack 

McLeod and Associates, Inc., (McLeods) realtors in the transaction, 

and Glenn Pryor and Lois Pryor, sellers in the transaction, as 

defendants. The District Court for the Second Judicial District, 

Silver Bow County, granted summary judgment to the McLeods. 

Plaintiffs appeal. We affirm. 

The sole issue for our review is whether the District Court 

erred in granting summary judgment in favor of the McLeods. 

On January 20, 1986, the Pryors listed their real property 

for sale with the McLeods. The plaintiffs made several offers to 

purchase the property, which resulted in the execution of a 

Contract for Deed on February 14, 1986 between the plaintiffs and 

the Pryors. Note that the Pryors were never sewed and are not 

parties to this appeal. 

The Contract for Deed was executed on February 14, 1986 and 

provided that the purchase price of $30,000 was payable $20,000 

upon execution of the agreement, with the balance of $10,000 

payable in monthly installments of $192.65 at 9% over 5 1/2 years. 

The contract also obligated the Pryors to provide the plaintiffs 

with an owner's title insurance policy within 90 days after the 

execution of this agreement, guaranteeing that the Pryors owned the 

real property in fee simple absolute, free and clear of liens and 

encumbrances. In its review of the uncontested facts, the District 

Court summarized the same by pointing out that the plaintiffs went 

into possession of the property on March 7, 1986; and the McLeods 
did not set up the escrow because the Pryors went into bankruptcy. 

The District Court referred to the various steps in the bankruptcy 

court which culminated in the 1989 petition to reopen the Pryor 

bankruptcy on the part of McLeods and resulted in a bankruptcy 

court order authorizing the sale of the property in question free 

and clear of any liens. At that point the McLeods had a title 

insurance policy issued which did show clear title as of that time 

in the Pryors. 

In December, 1986, the McLeods dispersed the $20,000 retained 

in its trust account since February 20, 1986. Plaintiffs' 

complaint against the McLeods alleges that they orally advised 

McLeod not to disburse the $20,000 down payment until there was a 

clear title. The plaintiffs also claim a breach of fiduciary duty 

to them by disbursing without clear title. The defendants moved 

for summary judgment, maintaining that the plaintiffs have not been 

damaged as they now have a policy showing clear title so that the 

Pryors had fulfilled their obligation to give clear title; and also 

contending that the McLeods had no contractual relationship with 

the plaintiffs. 

Relying on Scheitlin v. R. D. Minerals (1985) , 217 Mont. 8, 701 

P.2d 1388, the District Court held that plaintiffs waived the 90- 

day clear title provision of the Contract for Deed. It pointed out 

that McLeod was employed by the Pryors, not the plaintiffs and thus 

McLeod did not owe a fiduciary duty to the plaintiffs. It further 

pointed out that any agreement regarding the disbursal of the down 

payment funds should have been memorialized in the buy-sell 

agreement or the Contract for Deed. The District Court concluded 
that there were no genuine issues of fact. It stated: 

This case is governed by the provisions of the Contract 

for Deed between Sellers and Buyers concerning the 

subject real estate and in this case the Buyers did 

absolutely nothing from February 14, 1986, until after 

the Escrow was set up in late December, 1986, following 

the original bankruptcy order. Other than said Contract 

for Deed, there was nothing in writing evidencing any 

agreement between the Plaintiffs and the Defendants 

McLeod regarding dispersal of funds. 

Pursuant to Rule 56 (c) , M.R. Civ. P., the District Court granted 

summary judgment in favor of defendants. From that judgment, 

plaintiffs appeal. 

We affirm the holding of the District Court that the 

plaintiffs waived the provision by their failure to object until 

after the McLeods disbursed the $20,000 down payment. We emphasize 

that as a result of the issuance of the title insurance policies, 

the Pryors as sellers have fulfilled their obligation to provide 

clear and marketable title to the plaintiffs. As a result, the 

question of the waiver of the 90-day marketable provision is moot 

for practical purposes. 

We affirm the District Court. 

Justices I\