Travelers Insurance v. Holiday Village Shopping Center Ltd. , 53 State Rptr. 1372 ( 1996 )

No. 95-152
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
TRAVELERS INSURANCE COMPANY,
A Connecticut Corporation,
Plaintiff and Respondent,
HOLIDAY VILLAGE SHOPPING CENTER LIMITED ,;, ,,
"~ :~ '~ " ' -,.-!'~
PARTNERSHIP, a Montana limited partnership;
SIX SIXTY SEVEN, INC. ; HILL COUNTY, MONTANA; ii/ 1 ’ !~i “i’:‘-~i
ROBERT L. BROWN; ROBERT W. RECTOR; RICHARD
F. BOHN; JACK OLIVER; CLARKE STREEPER; and ,;: :j '<, ,_;,
O.B.S. PARTNERSHIP, ,,,,,,.~,: ;:i ;~,;.~~:it*
;; ,;,, ,:,‘;
Defendants and Appellants.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
James H. Goetz (argued), Robert K. Baldwin (argued);
Goetz, Madden & Dunn, Bozeman, Montana
Frank Altman, Daniel A. Boucher; Altman & Boucher,
Havre, Montana
David G. Rice, Hill County Attorney, Havre, Montana
For Respondent:
William A. Squires (argued), Randall C. Lester;
Matteucci, Falcon, Squires & Lester, Great Falls,
Montana
Argued: April 2, 1996
Submitted: June 27, 1996
Decided: December 16, 1996
Filed:
I
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
Appellants (collectively HVSC), appeal from the Amended
Findings of Fact, Conclusions of Law, Judgment, and Decree of
Foreclosure entered by the Twelfth Judicial District Court, Hill
County, foreclosing their interest in the subject property and
ordering a sheriff's sale. We reverse and remand.
We restate the issues raised by HVSC as follows:
1. Did the District Court err in determining that HVSC's
interest in the subject property was subject to Travelers' liens?
2. Did the District Court err in determining that the
subordination agreements executed by HVSC granted Travelers a
security interest in the fee to the subject property?
3. Did the District Court err in determining that the leases
were terminated and that Travelers would be entitled to relief
from forfeiture?
4. Did the District Court err in not requiring the
delinquent real property taxes to be paid out of the foreclosure
sale proceeds and in ordering that the costs and attorneys' fees
would be assessed at a later date?
Factual Summary
This case arises out of a complicated dispute relating to the
financing of the Holiday Village Shopping Center located in Havre,
Montana. The following facts are taken from the parties' statement
of stipulated facts. Beginning in 1975, Hill County, Montana, and
several adjoining landowners, Brown, Rector, Bohn, Oliver, and
Streeper, entered into lease agreements with M & M Enterprises (M
& M) covering the land upon which Holiday Village was constructed.
The lease agreements had been modified several times since they
were executed.
In the spring of 1978, Hill County and the adjoining
2
landowners executed and delivered subordination agreements to
Travelers. These agreements were executed on M & M's behalf so
that Travelers would advance the funds necessary to construct the
shopping mall. In May of 1978, M & M executed and delivered a
promissory note to Travelers. To secure payment of the promissory
note, M & M executed and delivered a mortgage to Travelers. In
October of 1980, M & M executed an assignment of lease in favor of
Northwestern Union Trust Company (NWU); the same day, NWU assigned
the lease to LIC, Inc. (LIC). At the same time, M & M executed a
special warranty deed to NWU conveying its interest in the subject
property and NWU subsequently conveyed its interest to LIC. M&M
also executed an assignment of ground lease giving NWU all of its
interest in the leasehold estates. Again, the ground leases were
subsequently assigned to LIC. In 1986, LIC assigned its interest
in the leasehold agreements to LAACO, Ltd. On May 30 and June 1,
1990, LAX0 and Holiday Village entered into an assignment
agreement and conveyance and Travelers and Holiday Village entered
into an assumption agreement and consent.
HVSC failed to make the required payments due under the lease
agreement to Hill County and to the adjoining landowners;
therefore, HVSC was in default. In the spring of 1993, Hill County
and the adjoining landowners issued notices of default for failure
to make the required payments due under the terms of the leases.
A receiver was appointed to manage HVSC in March of 1993 and has
made monthly reports to the District Court regarding the financial
condition of HVSC since his appointment.
3
In 1992, Travelers filed its complaint seeking a judgment on
the monetary obligation and foreclosure of its security interest in
both the real and personal property. In April of 1993, HVSC and
its general partner, Six Sixty Seven, Inc., consented to the entry
of judgment in favor of Travelers and foreclosure of its interest.
Thus, HVSC is no longer litigating the instant appeal. In 1994,
all of the remaining parties, Travelers, Hill County, and the
adjoining landowners moved for summary judgment. The District
Court ordered that Travelers recover a judgment against HVSC and
Six Sixty Seven, Inc. pursuant to the stipulation that Hill County
and Brown did not act as sureties and did not properly terminate
the ground leases, and that Hill County and the adjoining
landowners recover the monthly rent payments due under the terms of
their leases to the date of the judgment. Finally, the District
Court ordered that the subject property be sold at a sheriff's
sale. Subsequently, Hill County and the adjoining landowners filed
the instant appeal.
Standard of review
In reviewing a district court's grant of summary judgment we
use the same criteria as that used by the district court; we are
guided by Rule 56, M.R.Civ.P. Chilberg v. Rose (1995), 273 Mont.
414, 416, 903 P.2d 1377, 1378-79 (citing Minnie v. City of Roundup
(1993), 257 Mont. 429, 431, 849 P.2d 212, 214). Thus, we determine
whether a genuine issue of material fact exists and whether the
moving party is entitled to judgment as a matter of law. Chilberq,
903 P.2d at 1379. Here, the parties submitted a statement of
4
stipulated facts and the court entered its findings of fact,
conclusions of law, and decree based on the stipulated facts and
oral argument. No genuine issue of material fact exists.
In the instant case, the District Court determined that "[t]o
the extent resolution of this matter turns on the construction and
interpretation of written instruments, such a determination is a
matter of law." In reviewing a district court's conclusions of
law, we determine whether the court's interpretation of the law is
correct. Stratemeyer v. Lincoln County (Mont. 1996), 915 P.2d 175,
177, 53 St.Rep. 245, 246 (citing Carbon County v. Union Reserve
Coal Co., Inc. (1995), 271 Mont. 453, 469, 898 P.2d 680, 686);
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75,
803 P.2d 601, 603-04.
Discussion
Resolution of the appeal hinges upon an interpretation of the
subordination agreements executed in 1978 by Hill County and the
adjoining landowners in favor of Travelers. The subordination
agreement with Hill County1 provides in relevant part that:
SUBORDINATION AGREEMENT
. . .
WHEREAS, the undersigned, Hill County, Montana, a
political subdivision of the State of Montana, having an
address of Havre, Montana, is the owner in fee simple
absolute of the real property situated in Hill County,
Montana, more particularly described on Exhibit A
attached hereto and by this reference made a part hereof,
and
WHEREAS,the undersigned by a lease dated August 29,
' The subordination agreement with the adjoining landowners is
substantially identical to the agreement with Hill County.
5
1975, as supplemented by Supplemental Agreement dated
November 1, 1976, and executed by the parties August 29,
1975 has leased the hereinbefore described real property
to M & M Enterprises, a Montana Partnership; and
WHEREAS, M & M Enterprises has applied to the
Travelers Insurance Company, a Connecticut corporation,
hereinafter referred to as Travelers for a loan in the
amount of FIVE MILLION EIGHT HUNDREDFIFTY THOUSANDand
No/100 DOLLARS ($5,850,000.00) with interest, evidenced
by a note dated Februarv 8. 1978 and secured by a
mortgage on the Lessee's interest in the hereinbefore
described real property of even date with said note and
recorded on the 14th dav of June, 1978, in Book 140 of
Mortqaqes on Paae 348, Document Records of the Clerk
and Recorder of Hill County, Montana, and
WHEREAS,Travelers is unwilling to make said loan or
advance funds thereon unless it is assured that the above
described mortgage shall be a lien upon the undersigned's
fee simple title in the hereinbefore described real
property and unless the undersigned gives Travelers the
assurances hereinafter set forth, and
WHEREAS, the undersigned is willing to subordinate
its fee simple title to said real property to said
mortgage and is willing to give such assurance,
NOW, THEREFORE, in consideration of the making of
said loan to M & M ENTERPRISES, and to induce Travelers
to advance funds thereon, the undersigned hereby
subordinates all of its right, title and interest in and
to said real property to the lien of said mortgage and
agrees that said mortgage shall continue to be a first
lien upon said property prior and superior in right to
any right, title and interest of the undersigned in and
to said real property. The undersigned, however, shall
not be liable for the payment of any indebtedness secured
by said mortgage or the performance of any of the
covenants or obligations of the mortgagor thereunder.
The undersigned further assures Travelers that the
undersigned will not terminate the above described lease
without the prior written consent of Travelers except in
the case of a default thereunder by M & M ENTERPRISES in
which case the undersigned agrees to give Travelers
written notice thereof, specifying the default and
Travelers shall have ninety (90) days after receipt of
said notice within which to cure said default, and if the
default is cured within said period, or if the default is
one which cannot be cured within said period, but steps
are taken in good faith during said period and diligently
6
pursued, the lease shall not be terminated[.l [Emphasis
added. 1
Hill County and the adjoining landowners assert that they are
sureties for M & M and that the subordination agreements which they
executed are not mortgages. Further, Hill County and the adjoining
landowners assert that they were exonerated when Travelers released
M & M from all liability without consent of Hill County and the
adjoining landowners. Travelers argues that the subordination
agreements subjected Hill County's and the adjoining landowners'
fee interests to Travelers' lien and that the subordination
agreements are, in fact, mortgages. Further, Travelers contends
that the subordination agreements waive any statutory right of
exoneration.
In resolving the parties' contentions, the District Court
concluded that the above-quoted subordination agreement creates a
contractual right of foreclosure as well as a statutory mortgage
and an equitable mortgage under Montana law because it was
"executed with all the formalities required for a grant of real
property and the execution of a mortgage." However, the
subordination agreements contain no words purporting to mortgage an
interest in property. Section 71-l-204, MCA.
This Court has stated that "[aIs a general rule, construction
and interpretation of written agreements, including contracts, is
a question of law for the court to decide." Klawitter v. Dettmann
(1994), 268 Mont. 275, 281, 886 P.2d 416, 420 (citing First Sec.
Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 152-53, 818
P.2d 384, 387). Similarly, it is a question of law whether
7
ambiguity exists in a written instrument. Klawitter, 886 P.2d at
420 (citing Audit Sews. Inc. v. Systad (1992), 252 Mont. 62, 65,
826 P.2d 549, 551); Johnson v. Nyhart (1995), 269 Mont. 379, 387,
889 P.2d 1170, 1174.
Hill County and the adjoining landowners argue that l'[t]he
subordination agreements do not, on their face, purport to be
mortgages [and that1 Lilt was error for the district court to
conclude that they are mortgages without resort to extrinsic
evidence." We agree. The District Court concluded that the
"Subordination Agreements are unambiguous, and therefore the Court
need not look to extrinsic evidence for interpretation of the
same." We hold that the District Court erred in concluding that
the subordination agreements were not ambiguous. The documents are
titled "Subordination Agreement" rather than mortgages. Section
71-l-204, MCA, sets forth the form of a mortgage. The operative
verb in the §204 mortgage form is to "mortgage." Although the text
of the documents states that the fee interest is "subordinated," it
does not contain language purporting to "mortgage" property to a
mortgagee as security.
A subordination agreement only dictates the priorities between
existing interests, for example lien holders--it does not mortgage
an interest in the property. A mortgage "is a contract by which
specific property is hypothecated for the performance of an act,
without the necessity of a change of possession." Section 71-l-
101, MCA. The agreement at issue here has characteristics of both
a subordination agreement and a mortgage. The confusion lies in
8
the fact that the agreement mixes the concepts of "subordinate" and
"mortgage" by providing that Hill County and the adjoining
landowners subordinate their fee simple interests to Travelers'
mortgage. Subordinate means "Ipllaced in a lower order, class, or
rank and having a lower position in a recognized scale;
secondary, minor." BLACK's LAW DICTIONARY 1426 (6th ed. 1990). Since,
by definition, a fee simple interest is absolute and without
condition or limitation, an agreement purporting to "subordinate"
a fee simple interest presents a paradox; can a fee simple
interest, which is absolute and without limitation, be placed in a
lower or secondary position by a "subordination agreement?" Thus,
the language of the agreements is inherently and internally
inconsistent.
The District Court was incorrect in holding that the
agreements are unambiguous and that resort to extrinsic evidence
was unnecessary. The language of the agreements is ambiguous.
Further, Hill County and the adjoining landowners assert that had
the extrinsic evidence been considered it would show that Travelers
itself did not consider the subordination agreements to be
mortgages. To resolve this ambiguity, the court must consider the
intent of the parties at the time of the execution of the
instrument. As this Court has recognized, "to establish this
intention [to create a mortgage] the courts will examine the
surrounding circumstances." Boysun v. Boysun (1962), 140 Mont. 85,
538, 368 P.2d 439, 440.
The dissenters correctly point out that § 28-3-206, MCA,
9
provides that in cases of uncertainty, the language of the contract
should be interpreted most strongly against the party who caused
the uncertainty to exist. It should be noted, however, that this
is not a peremptory rule. It does not require that the non-
drafting party prevail in all cases. Rather, it is a rule of
interpretation that requires that the court interpret the contract
"most strongly" against the drafting party. For example, in Landon
v. Labor Standards Division (1982), 200 Mont. 153, 158, 649 P.2d
1341, 1343-44, even after the court applied § 28-3-206, MCA, and
interpreted the contract most strongly against the employer as the
party who caused the uncertainty to exist, it still reached the
conclusion that the employer was correct. In the present case,
although § 28-3-206, MCA, mandates that the District Court
interpret the agreement most strongly against Travelers in deciding
whether the agreement constitutes a subordination agreement or a
mortgage, that statute does not necessarily dictate the outcome of
the court's deliberation after consideration of the extrinsic
evidence.
Were the ground leases properly terminated?
Travelers filed its complaint in this matter on November 13,
1992, months before Hill County and Brown, et al. issued their
February and March, 1993 notices of default on the ground leases.
On June 18, 1993, Travelers sought the District Court's permission
to deposit the lease payments into court pending resolution of the
effect of the subordination agreements. The court denied the
request.
10
The subordination agreements provide:
If the default is one which cannot be cured within said
period, but steps are taken in good faith during said
period and diligently pursued, the lease shall not be
terminatedL.1
The District Court concluded that, in light of Travelers'
timely pursuit of the litigation and request to deposit funds with
the District Court:
Travelers so acted in good faith, and was not grossly
negligent or willful in its refusal to cure the defaults
alleged by the Lessors. Therefore, the leases were not
properly terminatedL.1 . .
The District Court's conclusion that the ground leases were
not properly terminated is correct and it is therefore affirmed.
Accordingly, we also affirm the holding that Hill County and Brown,
et al. are entitled to receive the monthly lease payments as
specified in the judgment.
Summary
We affirm the judgment against Holiday Village Shopping Center
Limited Partnership and Six Sixty Seven, Inc. in the amounts
specified in paragraph l(a) through l(h) of the Judgment and Decree
of Foreclosure with interest at the rate of 12% per annum as
provided in the Promissory Note.
In its Conclusion of Law #16, the District Court stated:
16. Hill County and Brown, et al. did not act as
sureties as definedby Section 28-11-401, Mont. Code Ann.
(1993). The subject Subordination Agreements were
executed for the benefit of Hill County and Brown, et al.
as part of their contractual obligations under the
subject ground leases to induce the execution of the same
by the Mitchells [co-partners of M & Ml, thus securing a
benefit unto Hill County and Brown, et al. Accordingly,
the subject Subordination Agreements were not
extinguished or exonerated by the release from liability
11
of M & M Enterprises and the Mitchells from the
Promissory Note and Mortgage.
The District Court's conclusion that Hill County and Brown, et
al. were not, under the specific terms of the ground leases and the
subordination agreements, acting as sureties is correct and is
therefore affirmed. Accordingly, Hill County and Brown, et al.
were not exonerated by the release of M & M Enterprises and the
Mitchells from the Promissory Note and Mortgage.
We reverse the judgment of the District Court insofar as it
holds that the subordination agreements create a contractual right
of foreclosure, a statutory mortgage or an equitable mortgage with
regard to appellants' fee interest in the real property. In that
the court's award of costs and attorneys' fees is dependent upon
its holding that the agreements constitute mortgages, that award is
also reversed.
Accordingly, we reverse and remand to the District Court for
consideration of the extrinsic evidence which, although presented,
was not considered in determining whether Hill County and the
adjoining landowners' fee interests are subject to foreclosure.
Reversed and remanded.
12
we concur:
Chief Justice
Judge of the Dlstrlct Court, sitting
for Justice William E. Hunt, Sr.
13
Chief Justice J. A. Turnage specially concurring:
I concur with the result reached by the majority, remanding
this case to allow the District Court to consider extrinsic
evidence concerning the parties' intent in entering the
"Subordination Agreement." I am confident, from the evidence in
the record thus far concerning the circumstances surrounding
execution of the "Subordination Agreement," that the parties
intended to create a lien under the terms of the mortgage on the
fee title to the property on which the shopping center is located.
Chief Justice
14
Justice Terry N. Trieweiler dissenting.
I dissent from the majority's conclusion that the
subordination agreement is ambiguous and that its interpretation
requires extrinsic evidence. I conclude that the plain terms of
the agreement did nothing more than subordinate Hill County's fee
interest to Travelers' right to foreclose on the lessee's leasehold
interest.
Furthermore, in the event of an ambiguity in the subordination
agreement, Montana's statutory and case law require that
uncertainties be resolved against the drafter of the document,
which in this case was Travelers Insurance Company. For these
reasons, I would reverse the judgment of the District Court and
enter summary judgment for Hill County.
The subordination agreement which was executed by Hill County
in favor of Travelers Insurance Company acknowledged that Hill
County owned the subject property in fee simple absolute, but had
leased it on August 29, 1975, to M & M Enterprises, a Montana
partnership. The agreement then acknowledged that M & M had
mortgaged its lessee's interest in that property as security for a
loan given by Travelers. Therefore, in the event that M & M
defaulted from its obligation to repay that loan, Travelers had a
right to foreclose on M & M's leasehold interest.
M & M's leasehold interest gave it the right to occupy land
owned by Hill County in fee simple for a period of fifty years from
October 1, 1975, and build a shopping center on that land. It also
obligated M & M to pay rent to Hill County in the amount of $20,360
annually after completion of the shopping center. There were
various other terms and conditions set forth in the written lease
agreement. However, the leasehold interest was limited to the
rights provided for in that agreement and did not include a fee
simple interest in the property owned by Hill County.
As the lessor and owner of the real estate on which the
shopping center was to be built, Hill County also had rights
pursuant to the lease agreement. It had the right to receive rent,
and it had the right to retake possession of the property in the
event that the rent was not paid.
By the written subordination agreement, Hill County agreed, in
consideration of Travelers' loan to M & M, tc
[subordinate] all of its right, title and interest in and
to said real property to the lien of said mortgage and
agrees that said mortgage shall continue to be a first
lien upon said property prior and superior in right to
any right, title and interest of the undersigned in and
to said real property.
In other words, Hill County simply agreed to defer the
enforcement of its rights in the property to Travelers' enforcement
of its right to foreclose on the leasehold interest. A
subordination agreement is
"an agreement by which a party having a superior right of
some sort agrees with someone having an inferior right
that, as between the two of them, the inferior right
shall be treated as if it were superior."
. .
. By executing a lien subordination agreement,
the subordinating party agrees to demote the priority of
its lien to that of another secured creditor, thereby
delaying its recourse to the identified collateral until
the other party's secured claim has been satisfied.
16
In re LantanaMotel (Bankr. S.D. Ohio 1990), 124 B.R. 252, 255, 256
(citation omitted).
However, while the subordination agreement required that Hill
County defer its interest in the property during the term of the
leasehold, it could not have, by its plain terms, given Travelers
any greater interest in the property than it had pursuant to its
mortgage agreement with M & M. That conclusion is compelled by the
fact that Travelers only had an interest in the leasehold and Hill
County only agreed to defer to Travelers' leasehold interest.
Travelers had no interest in the fee simple estate, and none was
created by the subordination agreement.
A similar issue was presented to the United States District
Court for the District of Idaho in Old Stone Capital Corp. v. John Home
ImplementCorp. (D. Idaho 1986), 647 F. Supp. 916.
In that case, John Hoene Implement Corporation (JHI) leased
property from Davis. JHI then gave a lending institution a deed of
trust on its leasehold interest to secure an operating loan.
Davis, as an inducement for the loan, agreed to subordinate her
interest in the property to the lending institution's security
interest in the leasehold. JHI defaulted and the lending
institution sought to foreclose on Davis's fee simple interest in
the property. The Federal District Court for the District of Idaho
first concluded that the subordination agreement could not create
a mortgage interest in Davis's fee simple estate. Old Stone, 64 7
F. Supp. at 919. However, in language relevant to the issue in
17
this case, it also concluded that since the lender never had an
interest in the fee title to Davis's property, it could not acquire
that kind of interest simply by virtue of the fact that Davis
subordinated her fee interest, and whatever rights were attendant
to it, to the lender's mortgage interest in the leasehold. The
court held as follows:
In summary, the nature of a subordination is such
that the beneficiary of the subordination must have a
competing interest which, after the subordination,
becomes senior to that which, before the subordination,
was the senior interest. In this case, Old Stone [the
lending institution] never had an interest in the fee of
Davis's property, but only pursuant to the leasehold
mortgage a junior interest in the leasehold. After the
subordination, Old Stone's interest in the leasehold
became superior to Davis's interest in the leasehold. By
its very nature, the vehicle of subordination could not
be used to grant Old Stone an interest in the fee. In
order to have an interest in Davis's fee estate, a
mortgage or deed of trust must have been executed. No
such instrument was executed. Further, the subordination
agreement cannot be elevated to the position of a
mortgage or deed of trust since it lacks the formalities
of such required under Idaho law. The subordination
agreement could not, as a matter of law, grant any
interest in the fee, upon which foreclosure could be had,
to Old Stone. Foreclosure is only possible on the deed
of trust affecting the leasehold.
Old smne , 647 F. Supp. at 919.
Likewise in this case, Travelers had no interest in Hill
County's fee title based on its mortgage agreement with Hill
County's lessee. Therefore, when Hill County agreed to defer to
Travelers' mortgage interest, it agreed to do nothing more than
waive its rights as lessor during the period of the lease agreement
so that Travelers could freely enforce its security interest in the
leasehold without competition from Hill County based on its
18
superior interest. These facts are clear from the plain terms of
the subordination agreement and require reversal of the District
Court and entry of summary judgment for Hill County.
However, even if, as the majority concludes, "[tlhe language
of the agreements is ambiguous," the result must be the same.
Travelers prepared the documents, and if it intended to create a
mortgage interest in Hill County's property, it was capable of
doing so by clear language. The fact that it was aware of how to
create a mortgage interest is evident from the mortgage document
that it drafted and had executed by M & M to create a mortgage
interest in M & M's leasehold estate.
Section 28-3-206, MCA, provides:
In cases of uncertainty not removed by parts 1 through 5
of this chapter, the language of a contract should be
interpreted most strongly against the party who caused
the uncertainty to exist. The promiser is presumed to be
such party, except that in the case of a contract between
a public officer or body, as such, and a private party,
it is presumed that all uncertainty was caused by the
private party.
We have also repeatedly held that ambiguous contracts should
be resolved against that party that drafted the contract. See, e.g.,
Topco,Inc. v. State (1996), 275 Mont. 352, 360, 912 P.2d 805, 810; Mueske
v. Piper, JasJiayBr Hopwood, Inc. (1993), 260 Mont. 207, 216, 859 P.2d 444,
449-50; St. PaulFire&MarineIns. Co. v. Cumiskey (1983), 204 Mont. 350, 363,
665 P.2d 223, 229.
The majority opinion does not address the standard rule
regarding ambiguous contracts. However, when that rule is applied,
it clearly requires construing the subordination agreement in favor
19
of Hill County and against Travelers' implausible suggestion that
the subordination agreement was not merely a subordination
agreement, but was in fact a mortgage agreement, even though it
makes no mention of a mortgage nor includes any language of
conveyance.
For these reasons, I dissent from the majority opinion. I
would reverse the judgment of the District Court and enter summary
judgment in favor of Hill County on the issue of whether Travelers
has a mortgage interest in Hill County's property.
/ Jus ide
Justice James C. Nelson joi ing opinion.
20
IN THE SUPREMECOURT OF THE STATE OF MONTANA
No. 95-152
TRAVELERS INSURANCE COMPANY, a
Connecticut corporation,
Plaintiff and Respondent, ;
v. ) ORDER
HOLIDAY VILLAGE SHOPPING CENTER i
LIMITED PARTNERSHIP, a Montana )
limited partnership; SIX SIXTY
SEVEN, ZINC.; HILL COUNTY, MONTANA; ;
ROBERT L. BROWN; ROBERT W. RECTOR; 1 JAWS 0 1997
RICHARD F. BOHN; JACK OLIVER; CLARKE
STREEPER and OBS PARTNERSHIP, ; tc! ZLzifL
CLERKO~--‘SWREMECOWK
) STATE OF MONTANA
Defendants and Appellants.
On January 3, 1997, appellants Hill County, Brown, Rector,
Oliver, Bohn, Streeper and OBS filed with this Court a petition for
rehearing in the above-entitled matter; respondent, Travelers
Insurance Company filed its objections on January 13, 1997.
Having considered the petition and objections,
IT IS ORDERED:
1. The following stricken language is hereby deleted from
this Court's December 16, 1996, Opinion (slip op. at page 3, second
line from the top):
Travelers. These agreements were executed e
b&&f so that Travelers would advance the funds . . .
In all other respects, the Opinion shall remain the same
2. The petition for rehearing is DENIED.
3. The Clerk is directed to mail a true copy hereof to
1
counsel of record for the respective parties, to State Reporter
Publishing Publishing Company.
DATED this b ‘&ay of January, 1997.
Justices
The Honorable Douglas G. Harkin, District Court Judge, sitting for
Justice William E. Hunt, Sr:, would also deny the Petition for
Rehearing.
2