ROGERS V SWINGLEY
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NO. 83-302 I N THE SUPREME COURT O F THE STATE O PIONTAIilA F 1983 GLENN E . ROGERS, P l a i n t i f f , Counterclaim Defendant and Respondent, DOUGLAS J . SWINGLEY and NELDA J . SWINGLEY, husband a n d w i f e , D e f e n d a n t s , C o u n t e r c l a i m P l a i n t i f f s and A p p e l l a n t s . The D i s t r i c t C o u r t o f t h e E i g h t h J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f C a s c a d e , The H o n o r a b l e J o e l G. R o t h , J u d g e p r e s i d i n g . APPEAL FROM: COUNSEL O F RECORD: For Appellants: H a r t e l i u s a n d F e r g u s o n , Great F a l l s , Montana For Respondent: R i c h a r d G e b h a r d t , Ronan, Montana R o b e r t Emmons, G r e a t F a l l s , Kontana M. S u b m i t t e d on B r i e f s : Decided: Filed: DOT 3 . J ; , (J -- Clerk August 1 8 , 1 9 8 3 O c t o b e r 20, 1983 Mr. Justice John C. Court. Sheehy delivered the Opinion of the Douglas L. Swingley and Nelda J. Swingley, defendants, appeal from the summary judgment of the District Court, Eighth Judicial District, Cascade County, granted in favor of Glenn E. Rogers, plaintiff. We find the District Court erroneously granted summary judgment. The judgment is hereby reversed and the case remanded to the District Court. Douglas L. Swingley and. Nelda J. Swingley first met Glenn E. Rogers and his wife at the International Mink Show held in Madison, Wisconsin, during January 1978. Both the Swingleys and the Rogers were then in the business of raising mink. The Rogers were operating a mink ranch in Ronan, Montana, and the Swingleys had begun operation of a mink ranch west of Great Falls, Montana. Glenn E. Rogers had begun his mink ranching operation through a mink leasing arrangement and he suggested that the Swingleys might also be able to benefit from an arrangement of this kind. The Swingleys agreed and in early December 1978 the parties entered into a written lease agreement whereby Rogers agreed to lease 600 pastel female mink and 120 male mink to the Swingleys. In return, the Swingleys agreed to pay Rogers one kit per female mink annually, or one-fourth of the annual kit crop, if the total female mink produced an average of four kits. leased The term of the lease was from November 15, 1978 to November 15, 1980. At or about the time the parties entered into the lease agreement, Rogers strongly suspected that at least a small percentage of those mink leased to infected with Aleutian Disease (AD). the Swingleys were This disease affects the productivity of the mink and impairs their resistance to other diseases. Douglas L. Swingley eventually became aware of greater than normal losses among the leased mink and their kits and a lower than normal productivity rate among the female mink. Because of these problems, the parties agreed to a payment of $5,000 on the lease for the first year rather than a payment of mink. The problems continued into the second year and Swingley did not make the final payment under the lease. To ensure payment, Rogers then sought a temporary restraining order preventing the Swingleys from selling any of the mink or mink pelts. The parties then attempted to reconcile their differences by replacing the lease with a promissory note for $49,750 and a mortgage as security for the promissory note. paragraphs: for payment The promissory note contained five the first four paragraphs set forth the terms of the obligation and the last paragraph contained a release whereby "the makers of this note hereby covenant and agree to release GLENN E. ROGERS and TREASURE STATE MINK RANCH from any and all future liability which may arise out of the said mink lease." The Swingleys failed to make the first payment on the promissory note and on June 3, 1981, Rogers filed a complaint asking for judgment against the Swingleys for the full amount of the promissory note and for foreclosure of the mortgage securing the promissory note. The Swingleys filed an answer and a counterclaim in which they alleged that the promissory note and mortgage were procured through fraud and that Rogers was liable to them for various damages. Although Rogers has alleged that he informed the Swingleys of the presence of AD in the leased mink soon after the lease was signed, the Swingleys claim that they never knew that the leased mink were infected with AD and that they would not have signed the promissory note containing the release if they had known that the mink were infected. Rogers moved for summary judgment following discovery. The District Court granted summary judgment for Rogers, awarded him the full amount of the promissory note, and ordered the mortgage foreclosed. The sole issue on appeal is whether summary judgment was properly awarded to Rogers. More specifically, viewing the record in the light most favorable to the Swingleys, is there a genuine issue of material fact? Summary judgment under Rule 56(c), M.R.Civ.P., is proper only if the record discloses no genuine issue of material fact as a matter of law. (Mont. 1983), 663 P.2d Abell v. Traveler's Insurance Co. 335, 40 St.Rep. 738; Downs v. Smyk (Mont. 1982), 651 P.2d 1238, 39 St.Rep. 1786. This Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all the facts which are deemed material in light of those substantive principles which entitle him to a judgment as a matter of law. Krone v. McCann (Mont. 1982), 638 P.2d 397, 39 St.Rep. 10; Big Man v. State (Mont. 1981), 626 P.2d 235, 38 St.Rep. 362. To satisfy this burden, the movant must make a clear showing as to what the truth is so as to exclude any real doubt as to the existence of any genuine issue of material fact. Kryss v. Stewart Mont. 117, 56.15 [31. 417 & Kober & Billings Deaconess Hospital (1966), 148 P.2d 476; 6 Moore's Federal Practice ΒΆ In addition, a11 reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party Abell v. Travelers Insurance who opposes summary judgment. Co. (Mont. 1983), 663 P.2d 335, 40 St.Rep. 335; Downs v. Smyk (Mont. 1982), 652 P.2d 1238, 39 St.Rep. 1786; Brown v. Merrill Lynch Pierce Fenner's Smith, Inc. (Mont. 1982), 640 Here, the District Court failed principles. these In its finding of fact no. 4, the District Court stated: "4. The affidavit of defendant Douglas L. Swingley stated that he was unaware, at the time the note was executed, that his mink were infected with Aleutian Disease and, therefore, the note was secured by fraud by plaintiff. This assertion is not supported by evidence." In support of this conclusion, the court cited the following: "5. In sworn testimony of Defendant Douqlas L. Swingley in Swingley v. kernaghanl services, Inc. , s et - Eighth District, Cascade County, CDV-80-416, al, Defendant Swingley, in answer to cross-examination by Robert J. Emmons, Attorney-at-law, stated: "'Q. At one time you indicated that you had 70% of your herd were infected with this particular disease. Is that correct? A. Yes.' "Q. What year was that? 1980. " A. That was November of From this the Court found: . "6 By Defendant Douglas Swingley's sworn admission, he stated that he was aware of the Aleutian Oisease infection prior to execution of the promissory note." This appears to be the decisive piece of evidence which ultimately led the District Court to grant summary judgment. If Douglas Swingley knew that his mink were infected with Aleutian Disease prior to the execution of the promissory note, there would be no genuine issue of material fact and summary judgment would b e proper. However, the statement made by Douglas L. Swingley can be r e a d two ways: 1) That, Douglas L . Swingley knew, t h a t h i s mink were i n f e c t e d w i t h AD; 1980, or T h a t , a t t h e t i m e of h i s d e p o s i t i o n i n 1981, Douglas 2) L. i n November Swingley knew t h a t h i s mink had been i n f e c t e d i n November 1980. I f Douglas L . all reasonable Swingley i s t o be a f f o r d e d t h e b e n e f i t of inferences that may be drawn from the e v i d e n c e , t h e n t h e p o s s i b i l i t y of h i n d s i g h t must b e examined. In his deposition, Swingley Douglas stated that he c a l l e d Rogers on t h e t e l e p h o n e some t i m e i n e a r l y December 1980 a f t e r t h e p r o m i s s o r y n o t e was signed. At t h a t time, Rogers t o l d Swingley t h a t Rogers had t e s t e d h i s mink h e r d f o r AD d u r i n g November 1980, and t h e t e s t r e s u l t s r e v e a l e d t h a t Swingley a b o u t 30 p e r c e n t of h i s mink were i n f e c t e d w i t h AD. t h e n t e s t e d h i s mink and t h e r e s u l t s r e v e a l e d t h a t around 70 p e r c e n t of h i s mink were i n f e c t e d w i t h AD. When Swingley responded i n t h e d e p o s i t i o n c i t e d by t h e D i s t r i c t C o u r t t h a t 70 p e r c e n t of h i s mink were i n f e c t e d w i t h AD i n November 1980, i n s t e a d of December 1980, when h e t e s t e d his mink, earliest he could merely time when he i n f e c t e d w i t h AD. could reasonably be l o o k i n g back sure that his to mink the were Rogers t e s t e d h i s mink i n November 1980. Swingley l e a s e d t h e mink could ha.ve been assume from Rogers. that the Therefore, leased mink Swingley in his p o s s e s s i o n were a l s o i n f e c t e d w i t h AD a s e a r l y a s November 1980. This Court has consistently held that the District C o u r t ' s function i s n o t t o a d j u d i c a t e genuine i s s u e s of f a c t on a motion f o r summary judgment; i t s f u n c t i o n i s merely t o determine whether such issues exist. Insurance Co. (Mont. 1983), 663 P.2d Abell v. Travelers 335, 40 ~t.Rep. 738; Small v. McRae (Mont. 1982), 651 P.2d 982, 39 St.Rep. 1896. If there is any doubt as to the propriety of a motion for summary judgment, it should be denied. Cheyenne Western Bank v. Young (l978), 179 Mont. 492, 587 P.2d 401; Engebretson v. Putnam (1977), 174 Mont. 409, 571 P.2d 368; Fulton v. Clark (1975), 1.67 Mont. 399, 538 P.2d 1371. It is not clear, so as to exclude all real doubt, that the burden of establishing no genuine issue of material fact was met. The summary judgment is reversed and the case remanded to the District Court for further proceedings. /I. L... We Concur: J q4-4 d .Q/M u L P ! Chief Jus'tlce d - - L- 9 Justice
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