McWilliams v. Bolstridge

644 P.2d 240 | Alaska | 1982

OPINION

MATTHEWS, Justice.

Appellant, William M. McWilliams contracted to buy a parcel of land from Appel-lees, Basil and Elizabeth Bolstridge and Royal L. Parker, Jr. After a time McWil-liams stopped making monthly payments, and appellees filed a quiet title action in order to foreclose the real estate contract. McWilliams, appearing pro se, answered and counterclaimed. Appellees moved for summary judgment, which was granted on both the quiet title action and the counterclaim.

On a summary judgment motion the moving party has the burden of showing that any defenses alleged are factually inapplicable. Braund, Inc. v. White, 486 P.2d 50, 54 (Alaska 1971). The movant, in other words, must disprove the affirmative defenses and counterclaims of his opponent. Id. Although McWilliams’ counterclaim is not a model of clarity, when fairly construed it states a claim that Basil Bolstridge fraudulently induced McWilliams to enter into the contract by orally agreeing to repurchase the land at any time for the amount that McWilliams had by then paid, without intending to be bound by the agreement.¹ In order to meet their initial burden of showing that the counterclaim was without merit, appellees had to negate it, as, for example, by filing an affidavit of Bolstridge that no such agreement was made. This they failed to do. The grant of summary judgment on the counterclaim was in error.

REVERSED AND REMANDED.

1 . Good discussions of fraud claims of this nature are found in Sweet, Promissory Fraud and the Parole Evidence Rule, 49 Cal.L.Rev., 877 (1961); Note, The Legal Effect of Promises Made with Intent Not to Perform, 38 Coium.L. Rev. 1461 (1938).