                                                   No.    85-371

                  I N THE SUPREKE COURT O F TEE STATE OF MONTANA

                                                         1985




LLOS PARKER,

                     P l a i n t i f f and A p p e l l a n t ,



WALKER TEN EYCK KEED,                  111, s.r:d
RARBARA EREWSTER,

                     Cefendants and P-espcndents.




APPEAL E'RGM:        D j . s t r . i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
                     -
                            and f o r t h e County o f G a l l a t i n ,
                     The H o n o r a b l e Thomas O l s o n , Zudge p r e s i d i n g .


COUNSEL O F RECORD:


         F o r Appe I. I a r i t :

                     Nash     &       Nash; D o n a l d N a s h , Bozeman, filantana


         For Respondent :

                     G o e t z , Kadden        &    Dunn; James H.            Goetz, Eczeman, Kontana



                                                                         -   - - ..   -   -.

                                                         Submitted on B r i e f s : O c t .                25,   1985

                                                                             Decided:          J a n u a r y 2 7 , 1986



Filed:



                                               +&
                                                CI


                                              4..Jd9     ' D
                                                          -    ~j?,
                             ..   -                                    ---                        .-   -
                                                         Clerk
Mr. Justice William E. Hunt, Sr., d.el.ivered the Opinion of
the Court.


     Parker appeals an order of the Gallatin County District
Court   d-enying Parker's      motion   for    summary      judgment   and
granting Weed ' s and Erewster ' s motion for summary judgment.
     Reversed and remand-edwith instructions.            The sole issue
on appeal is whether a right of first refusal violates the
Nontana rule against perpetuities, S S          70-1-40',     -408, MCA.
     The facts of this case are not in dispute.             On April 19,
1984, Parker       signed a document entitled        "First Right       of
Refusal. "    Parker was       designated   "GRANTORu and Weed         and
Brewster were designated "GRANTEES."          The agreement contained
the following pertinent statements:
     GRANTOR agrees not tc sell, transfer or assign a l l
     or   any   part    of  their   interest   in   the
     above-described real estate (to other than his
     children or grandchildren) unless such interest
     shall have been first offered to GRANTEES for sale
     and purchase by them in accordance with the
     following provisions:
     (a) GRANTOR    shall first offer to sell the
     above-described real estate tc GRANTEES at the same
     price and upcn the same terms and conditions as
     would   govern   upon  a   transfer to    a   third
     party   . . ..
     (d) This First Right of Refusal is binding upon
     the      heirs,      personal       representatives,
     zdministrators, successors, and assigns of each of
     the parties hereto.     (including any children or
     grandchildren   Transferees    of    the   Gramtor.)
     'Material    in   parenthesi s    interlineated   in
     handwriting in original document. l
     ICeed   and    Erewster    recorded    this   agreement     a.t the
Gallatin County Clerk and Recorder's Office on April 23,


     Gn August 3        1984, Parker filed a conplaint against
Weed and Erewster seeking a declaratory judgment voiding the
coritract between the parties which contained the right of
first refusal alleging the contract violat-ed the rule z g a i n s t
perpetuities.
        On February 6, 1 9 8 5 ,   Parker filed a motion For summary
judgment.      On March I ] , 1385, Erewster and Weed also filed a
                         ..
motion for summary judgment.          The issues were briefed by both
parties, and on Karch 15, 1985, a hearing was hel-d.
        On Yay     30, 1985, the Cistrict Court issued en order

cjrantirg Weed's and Erewster's motion for summary judgment.
It held that the right of first refusal was not a property

interest so the rule against perpetuities did not apply to
the preemption agreement.
     We f a c e d z nearly identical situation in the case of
Hardy v. Krutzfeldt (Mont. 1983), 672 P.2d 274, 4 0 St.Rep.

1823.     In that case, Hardy sought a declaratory judgment that

a preemptive clause was invalid as an unreasonable restraint

cn   alienation.        The   Cistrict Court    granted     Krutzfeldt's
motion for suFmary judgment and Fardy appealed.             We held that
the facts or the case presented no justiciable controversy
over which the judicizl power to determine real controversies
extended.     As we stated in Ezrdy:
                                   -

      The only thing before this Court in this case is a
      difference of opj-ninn among lawyers o n the legal
      effect of the preemptive first refusal clause. We
      dc not have before us any litigants involved in an
      actual controversy who are deprived of a property
                                               .
      right in seeking redress. Our decision here will
      not affect a i party to the contract directly,
                   ry
      because cn this record there has not been any
      intent by a.ny party to sell property outside the
      preemptive clause, nor any third party seeking to
      be relieved from the preemptive clause.
Har2y, 672 P . 2 d at 276.
        In   the    instant   case,   Parker   sought   a    decl-aratory
judgmelit under the Uniforr Declaratory Judgments Act that the
right of first refusal was invalid a violation of the rule
against perpetuities.         The District Court granted Weed's and
B r e w s t e r ' s rnoti.cn   for summary judgment a ~ d a r k e r appea-led.
                                                        P

As    in   Hardy,       the     record     in    the     instant       case discloses          no

pending       sale     cr      offer    for     sa!.e,    or    purchase         or   offer    t-o

purchase t h e underlying property.                        No t h i r d p a r t y i s b e f o r e

u s c h a l l e n g i n g t h e c l a u s e ' s a p p l i c a t i o n t o him.    Instead, we

z r e being asked t o render an advisory opinion.

        Our r e a s o n i n g i n Hardy a p p l i e s w i t h e q u a l f o r c e t o t h i s

  .
appeal..

        No l i t i g a n t b e f o r e u s i s i n immediate d a n g e r cf
        sustaining            direct         r            from   the  preemptive
        clause.             Therefore w e do n o t have a j u s t i c i a b l e
        c o n t r o v e r s y o v e r which t h e            judicial  power        to
        d e t e r n i n e r e a l c c n t r o v e r s i e s may b e e x e r c i s e d .
        Broad l a n g u a g e i n t h e Uniform D e c l a r a t o r y Judgments
        A c t , s e c t i o n 27-8-2101,          e t s e q . , MCA, may n o t b e
        used a s a p l a t f o r m f o r c o u r t s i n t h i s s t a t e t o
        p l u n g e i n t o i n d e f j n i t e amorphous ponds of c o n t r a c t
        interpretation.

Hardy, 672 P.2d a t 276.

        Therefore,          w e reverse t h e order of t h e C i s t r i c t Court

granting        respondents '          motion      for     summary       judgment      to     the

e x t e n t t h a t i t may be c ~ n s t r u e d t o d e t e r m i n e t h e r i g h t s o f

t h e p a r t i e s under t h e agreement c o n t a i n i n g t h e r i g h t of f i r s t

irefusal.        The c a u s e i s remanded t o t h e O i s t r i c t C o u r t w i t h

instructions t o dismiss without p r




h e Concur:
 i
/   Justices
