                            No.    90-590

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1991



THEORA A. WRIGHT, Successor
Trustee of the John Wight
Irrevocable Trust,
          Plaintiff and Respondent,


FRED GONZALES, a/k/a FREDERICO
GONZALEZ CRUZ, a/k/a FEDERICO CRUZ
GONZALES, a/k/a FRED C. GONZALES,
a/k/a FREDERICO C. GONZALES; et al.,
          Defendants and Appellant.



APPEAL FROM:   ~istrictCourt of the Ninth Judicial District,
               In and for the County of Toole,
               The Honorable R. D. McPhillips, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Federico Cruz Gonzalez, pro se;
               Laguna Hills, California
          For Respondent:
               Donald R. Herndon, Herndon, Hartman,
               Sweeney & Halverson; Billings, Montana


                                  Submitted on Briefs:   July 16, 1991
                                              Decided:   August 12, 1991
Filed:



                                  Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Plaintiff, Theora Wight, is a successor in interest to the
original plaintiff in this suit, her deceased husband John Wight.
Plaintiff commenced this quiet title action concerning real and
personal property located in Shelby, Montana.       Defendant, Fred C.
Gonzalez, and plaintiff both claimed a property interest in an
unused oil refinery.     The District Court for the Ninth Judicial
District, Toole County, granted plaintiff's motion for summary
judgment. The District Court concluded that the plaintiff was the
sole owner of the property in question, and awarded the plaintiff
costs and fees totaling $2,116.06.          From this judgment, the
defendant appeals.    We affirm.
     The sole issue for review is whether the District Court
granted   summary    judgment   against   the   defendant   without   an
opportunity for the defendant to be heard.
     The following facts were deemed admitted and true because
defendant failed to make a timely reply to plaintiff's request for

admissions submitted pursuant to Rule 36, M. R. Civ.P. All State Leasing

v. Top Hat Lounge (1982), 198 Mont. 1, 649 P.2d 1250.

     On August 21, 1980, the parties entered into a written
agreement for the renovation, operation, lease, and sale of an oil
refinery in Shelby, Montana.     The defendant was to lease the real
property from the plaintiff for 120 months.       At the conclusion of
the lease, title would pass to the defendant.           Similarly, the
defendant was to purchase the personal property from the plaintiff
and make the refinery operational.
     However, the agreement was conditioned upon the defendant
depositing $350,000 in a bank account.     The Land Lease Agreement
provided :
          3.1   It is a condition of this Agreement that the
     Purchaser deposit $350,000.00 to a bank or savings account in
     the State Bank of Shelby, Shelby, Montana, to be used for the
     rehabilitation of the refinery, within twenty days of the
     execution of the Agreement. If the money is not deposited,
     this Asreement would be null and void. (Emphasis added.)
The defendant did not deposit the required $350,000 in the State
Bank of Shelby.   Nor did the defendant make any lease payments,
improvements, or comply with the provisions of the Land Lease
Agreement.
     On October 1, 1980, plaintiff tendered a Bill of Sale to the
defendant.   This was to be effective only upon the deposit of the
$350,000, and no consideration was ever paid.         Nevertheless,
without plaintiff's permission or consent, defendant recorded the
Bill of Sale with the Toole County Clerk and Recorder.
     On or about January 9, 1981, defendant quitclaimed the
property in question to Grand American Bank Trust.    On March 13,
1981, Grand American executed a Grant Deed concerning the same
property to Minerals Mining Corporation.
     Plaintiff filed a complaint on June 24, 1985, claiming title
to the personal property and improvements--including buildings,
tanks, and equipment on the real property.   Defendant answered and
counterclaimed, claiming ownership of the property in question.
Plaintiff's complaint was later amended, pursuant to Rule 15(a),
M.R.Civ.P.,   to quiet title to the real property.         Defendant
answered the amended complaint.
     On February 22, 1990, plaintiff served her first combined
interrogatories, request for production and requests for admission
on defendant.   Defendant failed to answer.
     On September 24, 1990, pursuant to Rule 56, M.R.Civ.P.,
plaintiff filed a motion for summary judgment.      A hearing was
scheduled for October 16, 1990.   Plaintiff mailed notice of this
hearing to the defendant.     Defendant received this notice on
October 1, 1990, as evidenced by Return Receipt of Mail.
     At the hearing, defendant did not appear in person or through
counsel.   However, defendant did file a pro se brief opposing the
motion. Defendant's response was not accompanied by affidavits nor
controverting evidence in any admissible form. The District Court,
on October 23, 1990, granted plaintiff's motion for summary
judgment. The District Court concluded that plaintiff was the sole
owner of all the property in question, and that the defendant had
no right, title, or interest in the property.
     Defendant was provided adequate notice and opportunity to
oppose plaintiff's motion for summary judgment.        The notice
requirement for a motion for summary judgment is established by
Rule 56(c), M.R.Civ.P.   The rule states that "[tlhe motion shall
be served at least 10 days before the time fixed for the hearing."
Here, plaintiff mailed notice of the October 16, 1990, hearing on
September 24, 1990.     Defendant received actual notice of the
hearing on October 1, 1990, fifteen days before the scheduled
hearing.   Defendant requested no extension of time within which to
respond. Under the provisions established by Rule 56(c), defendant
was provided with an adequate opportunity to be heard but did not
avail himself of that opportunity.
    Accordingly, the     order   of   the   District   Court   granting
plaintiff's motion for summary judgment is affirmed.




We concur:




    Justices
