                                         T o 83-393
                                          J.
                      IN THE SUPREME COURT OF THE STATE OF MONTAiqA
                                              1984



TRAVIS M. BARKER,
                                  Plaintiff and Appellant,
    -vs-
RICE MOTORS,
                                  Defendant and Respondent.




APPEAL FROM:              District Court of the Eighth Judicial District,
                          In and for the County of Cascade,
                          The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
                          J. V. Barron, Great Falls, Montana

         For Respondent:
                          Swanberg, Koby, Swanberg   &   Matteucci; Ray F . Koby,
                          Great Falls, Montana



                                         Submitted on Briefs:       September 29, 1983
                                                         Decided:   January 26, 1984


Filed:
            >   * ,   {    ,384




                                         Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.



      Plaintiff buyer, Travis M. Barker, appeals from an order
of   the    Cascade County District Court granting       defendant
seller, Rice Motor Incorporated's motion for summary judgment
and dismissing buyer's amended complaint.          Buyer had sued
seller for fraud alleging the automobile buyer purchased from
seller was "used," not "new" as represented by seller.       Buyer
sought rescission of the sales contract and return of the
downpayment and installment payments made, as well as treble
a i punitive damages.
 rd                       We affirm.
      The trial court granted seller's motion for summary
judgment based on the pleadings, affidavits, depositions and
answers to interrogatories as a matter of record on June 17,
1983.      The trial court deemed that to be the submission date
of seller's motion and therefore did not consider buyer's
affidavit filed July 17, 1983, eight days before the motion
was set for hearing.       It was error for the trial- court to
exclude buyer's affidavit, from consideration because buyer
had a right under Rule 56(c), M.R.Civ.P, to serve an opposing
affidavit any time before the date of hearing.         However, it
was harmless error.       The affidavit fa.ils to set forth any
facts to show that the car was anything but new.        Therefore,
the buyer had no action for fraud and it was proper to
dismiss the amended complaint.         The appellant's brief fails
to set forth an issue.      The record discloses, however, that
the sole issue is whether the trial court properly ruled as a
matter of law that buyer purchased a "new" automobile rather
than a "used" automobile.     The ruling was correct.
     The facts surrounding the sale of this car help to
clarify the confusion.     In October, 1982, Rent-A-Car, Inc., a
wholly-owned subsidiary of seller, negotiated to sell out to
a third., unrelated corporation, Overland West, Inc.    As pa.rt
of that buyout plan, Rent-A-Car agreed it would not own any
cars at the time Overland West assumed control of it.    There-
fore, it was necessary for Rent-A-Car to sell its existing
rental fleet as well as the new cars it had ordered from
seller, but had not yet received.       Seller agreed to assist
Rent-A-Car in selling the cars, both new and used.      The car
in question, a 1983 AMC Eagle station wagon, was one of the
"new" cars Rent-A-Ca.r had ordered from seller.
    When seller received it from the manufacturer, it was
titled in Rent-A-Car's name, but Rent-A-Car had never ob-
tained possession.     The car was sent from the manufacturer

directly to the seller and it was placed on seller's lot for
sale as a new car.        Rent-A-Car never used the car in the
rental business and the seller never offered the car as a
rental car.   At the time buyer purchased the car, the car had
50 miles on the odometer and buyer signed an odometer state-

ment to that effect.
     Section 61-1-11.7, MCA, defines a "used motor vehicle",

and that section provides:
     "Used motor vehicle. The term 'used motor vehicle'
     as used in chapters 3 and 4 shall include any motor
     vehicle which has been sold, bargained, exchanged,
     given away, or title transferred from the person
     who first took title to it from the manufacturer,
     importer, dealer, or agent of the manufacturer or
     importer, and so used as to have become what is
                                                 - -
     commonly known  as 'seconrhand 'within the ordinary
     meaning t e e f "
              hro.       (Emphasis added.)
Buyer contends there is a question of fact whether the car is
"second hand" because it was oriainally titled in Rent-A-Car
and then went to seller before he bouqht it.       The facts do
not support buyer's position and buyer interprets the statute
out of context.       Seller's documents supporting its motion
establish    that   the   car     was    never   enrolled   as   part   of
Rent-A-Car's Hertz fleet, and immediately upon delivery the
car was placed on seller's lot to be sold as a new car.
Rent-A-Car never did physically transfer title to the seller.
     Furthermore, buyer          reads section 61-1-117, MCA,           too
restrictively.      He contends that because the car was titled
to a rental agency hefore he bought it from seller, there is
a question of fact as to whether the car is "second hand"
under the statute.        But, the statute requires not only a
transfer of title or some other exchange, but also that the
car has been "so used" as to become "second hand."               Buyer has
failed to show by affidavit or otherwise that the car was
used for anything but demonstration or road test purposes.
     The Michigan Supreme Court interpreted a statute identi-
cal to section 61-1-117, MCA, in Sa1wa.y v. Alger (1948), 321
Mich. 211, 32 N.W.2d      505.     Salway was a used car dealer who
had his license revoked because he was selling new cars
without a state license.           The Michigan court rejected his
argument that because the new cars had been titled in a
private name before he acquired them, the cars were "used"
under the Michigan statute.             The court in Salway noted that
the statute required a two-pronged showing.           First, he had to
show that the titles had been transferred, and second, that
the cars had been "so used" as to become "second hand."
     It was buyer's burden to show by affidavit that there
was a genuine issue as to whether the car was "new" or
"used."     Buyer could not rely on his pleadings, Flansberg v.
Montana Power Co.     (1978), 154 Mont. 53, 460 P.2d 263, and
buyer's affidavit established no issue of fact regarding the
condition of the car.     He therefore did not sustain his
burden.
     We hold that the trial court correctly ruled as a matter
of law that the 1983 AMC Eagle that buyer purchased from
seller was not a "used motor vehicle" as that phrase is
defined in section 61-1-117, MCA.     Rather, it was a new
vehicle.
     The order of the trial court qra.ntinq seller's motion
for summary judgment and dismissing buyer's amended complaint
is affirmed.




We Concur:


  3 Chief
     4 4     pk$!L&
             Justxce
