Lence Family Trust v. Elmer C. Christensen

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LENCE FAMILY TRUST,
Plaintiff - Appellant,
v.
ELMER C. CHRISTENSEN;
LANDTECH ENTERPRISES LTD, CO;
JOANNE CHRISTENSEN; LANDTECH
CORPORATION; LANDTECH
ENTERPRISES, LLC,
Defendants - Appellees.
No. 13-35841
D.C. No. 9:12-cv-00171-DWM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Submitted October 15, 2015**
Seattle, Washington
Before: KOZINSKI, W. FLETCHER and FISHER, Circuit Judges.
The Lence Family Trust (the Trust), through its trustee John Lence, appeals
the district court’s entry of summary judgment against it. We have jurisdiction
FILED
NOV 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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under 28 U.S.C. § 1291, and review a grant of summary judgment de novo while
construing the evidence in the light most favorable to the plaintiff, see Alcantar v.
Hobart Serv., 800 F.3d 1047, 1051 (9th Cir. 2015). We affirm in part, vacate in
part and remand for consideration of whether the 2005 Release of All Claims
(2005 Release) was unconscionable.
1. The Trust’s actual and constructive fraud claims and its civil conspiracy
claim are barred by the applicable statutes of limitations. See Mont. Code Ann.
§ 27-2-203; Mont. Code Ann. § 27-2-204. The causes of action accrued at the
latest when John Lence issued the Notice of Rescission on September 9, 2005, and
threatened a lawsuit for fraud. No tolling applied.
2. The district court correctly held that defendants Joanne Christensen,
Landtech Corporation and Landtech Enterprises, LLC, were entitled to summary
judgment on the Trust’s breach of contract claim. They were not parties to the
Acknowledgment and Assignment that the Trust alleges the defendants breached,
and thus had no obligations under the contract. See Johnston v. Centennial Log
Homes & Furnishings, Inc., 305 P.3d 781, 791 (Mont. 2013).
3. We vacate the grant of summary judgment, however, with respect to the
breach of contract claim against Elmer Christensen and Landtech Enterprises Ltd.,
Co. Montana law permits a court to raise unconscionability where it “appears” a
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contract “may be unconscionable.” Mont. Code Ann. § 30-2-302. The record
before the district court, construed in the light most favorable to the Trust, suggests
the totality of the circumstances surrounding the 2005 Release may support a
finding of unconscionability. See Kelly v. Widner, 771 P.2d 142, 144-46 (Mont.
1989). The Trust’s breach of contract claim is timely, see Mont. Code Ann. § 27-
2-202(1), and because the parties have not addressed unconscionability in their
briefing, we remand to afford them the opportunity to present the issue to the
district court in the first instance, see Mont. Code Ann. § 30-2-302(2). We express
no opinion on how the issue should be decided.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART and REMANDED.
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