No. 86-583
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
BONNIE FOX,
Plaintiff and Respondent,
-vs-
ROBERT CLARYS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John V. Potter, Jr., White Sulphur Springs, Montana
For Respondent :
Berger, Nelson & Gai, P.C., Chris J. Nelson,
Billings, Montana
Submitted on Briefs: March 26, 1987
Decided: June 11, 1987
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This appeal arises from a summary judgment granted
plaintiff in a quiet title action by the District Court of
the Thirteenth Judicial District in and for Yellowstone
County. Defendant appeals. We affirm.
The facts of this case are not in dispute. Clifford
and Bonnie Fox were at one time married and owners as joint
tenants of an approximately forty acre tract of real property
located in Yellowstone County. Clifford and Bonnie were
divorced in December 1981 and under the terms of their own
property settlement agreement, this property was to be sold
and the net proceeds evenly divided. Pending the sale, the
property was to remain available to both, each sharing the
mortgage and insurance payments, property taxes and any
improvement or maintenance costs.
The property, however, remained unsold for six months.
On June 23, 1982, Clifford and Bonnie, by agreement, amended
their property settlement agreement to provide for a
partition of the property with each party solely responsible
for his or her portion. This amendment further provided that
if either party defaulted on a mortgage payment associated
with the property, the defaulting party would forfeit all
title and interest in the property to the other party.
Further domestic difficulties quickly arose between
these two, however, and on July 1, 1982, Bonnie filed in
District Court a motion to set aside the June 23 amendment.
In conjunction with this motion, Bonnie filed a lis pendens
which is at issue in this case. The District Court issued a
show cause order and set a hearing date on Ronnie's motion.
However, this matter was never heard, and the property
apparently remained partitioned.
Subsequently, the defendant herein, Robert Clarys,
obtained a writ of attachment on Clifford's interest in the
subject property in connection with a lawsuit filed in
Meagher County. Shortly thereafter, Clarys obtained a
default judgment against Clifford for monies allegedly due on
a promissory note. By January 1984, Clarys had filed and
recorded in Yellowstone County his judgment and writ in an
attempt to obtain a judgment lien against Clifford's interest
in the subject property.
But in March 1984, Clifford defaulted on a mortgage
payment. Notwithstanding the fact that in July 1982 she had
filed a motion to set aside the terms of the June 23
amendment, Bonnie now sought to enforce those terms. The
reason that Bonnie sought to set aside the agreement was
because Clifford had come back to the property and had beaten
her. There is no indication that she desired to give up any
claim or interest to the property. Here the property was
still involved in the divorce proceeding before the court and
there was nothing which eliminated the right of Bonnie to
file full title to the property by requesting the disposition
of that property or in the alternative to enforce the order
as she now has done.
Bonnie served Clifford with a notice of default, and
upon Clifford's failure to cure, Bonnie, on June 1, 1984,
moved the District Court to order Clifford to convey to
Bonnie any and all of his title and interest that he held in
the subject property. By order dated June 22, 1984, the
District Court granted Bonnie's motion, directing the Clerk
of the District Court to execute a quit claim deed conveying
all of Clifford's interest to Bonnie.
Clarys, meanwhile, continued to assert that he could
maintain a levy of execution based upon his writ of
attachment and judgment obtained against Clifford. Bonnie
therefore filed a quiet title action which is the subject of
this appeal.
Before the District Court, Bonnie and Clarys filed
cross-motions for summary judgment. The District Court
granted Bonnie's motion based upon her lis pendens filing.
The court held that the doctrine of lis pendens applies to
all persons acquiring an interest in the subject of the
litigation during the pendency of the action and thereby
concluded that Bonnie's lis pendens precluded Clarys from
subsequently encumbering Clifford's interest in the property.
Clarys now appeals.
The doctrine of lis pendens was created to hold the
subject matter of litigation within the jurisdiction and
control of the court during the pendency of an action so that
any final relief granted by the court would be at once
binding and effective. See, generally, 8 G. Thompson,
Commentaries on the Modern Law of Real Property, § 4308,
(1963 Replacement ed. ). This doctrine generally renders
third persons who subsequently purchase or encumber an
interest in the subject property bound by the final
disposition of the action.
This doctrine, however, often provides harsh results
and generally has not been extended by courts without strict
necessity. E & E Hauling, Inc. v. County of DuPage (111.
1979), 396 N.E.2d 1260, 1266. Although the law on this
subject is sparse, notice of lis pendens is typically
effective only for the stated cause of action and does not
embrace subsequently added causes; notice of lis pendens
becomes applicable to new causes of action only when the new
causes are added. See e.g., Blase v. Austin (Mo. 1951) , 242
S.W.2d 29, 33.
As noted, in the instant case, Bonnie filed her notice
of lis pendens with her motion to set aside the June 23
amendment. Then, after Clarys had obtained a judgment
against Clifford, Bonnie enforced the June 23 amendment to
acquire full title in the subject property and now seeks to
use her notice of lis pendens to preclude Clarys from
executing upon his judgment.
We find Bonnie's argument represents a proper reading
of the lis pendens doctrine. Her motion of June 1, 1984 to
enforce the terms of the June 1982 amendment was tantamount
to a continuance of her divorce and within the provisions of
our statute.
We further note that Bonnie filed her notice of lis
pendens pursuant to a statutory provision. Section
70-19-102, MCA, provides:
(1) In an action affecting the title or
right of possession of real property or
in an action between husband and wife,
the plaintiff, at the time of filing the
complaint, and the defendant, at the time
of filing his answer, when affirmative
relief is claimed in such answer, or at
any time afterward may file in the office
of the clerk and recorder of the county
in which the property is situated a
notice of the pendency of the action
containing the names of the parties and
the object of the action or defense and a
description of the property in that
county affected thereby.
(2) From the time of filing of such
notice only shall a purchaser or
encumbrancer of the property affected
thereby be deemed to have constructive
notice of the pendency of the action and
only of its pendency against parties
designated by their real names.
The purpose underlying lis pendens statutes is to
provide a better form of notice of pending litigation to
those interested in the subject property. See e.g., Kelly v.
Perry (Ariz. 1 9 7 5 ) , 5 3 1 P.2d 1 3 9 , 1 4 0 .
The judgment of the District Court is affirmed.
We concur: A
@&
Justices