                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 19 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LENCE FAMILY TRUST,                              No. 13-35841

              Plaintiff - Appellant,             D.C. No. 9:12-cv-00171-DWM

       v.
                                                 MEMORANDUM*
ELMER C. CHRISTENSEN;
LANDTECH ENTERPRISES LTD, CO;
JOANNE CHRISTENSEN; LANDTECH
CORPORATION; LANDTECH
ENTERPRISES, LLC,

              Defendants - Appellees.

                  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

        *
        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).
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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