No. 91-300
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
PETER R. QUIRIN and PATRICIA F. QUIRIN, husband and wife,
Plaintiffs and Respondents,
-vs-
THOMAS A. WEINBERG and CAROLYN J. WEINBERG,
Defendants and Appellants,
and
COUNTY OF YELLOWSTONE, a Political Subdivision of the State of
Montana,
Defendant and Respondent.
THOMAS A. WEINBERG and CAROLYN J. WEINBERG,
Defendant, Third-Party Plaintiffs and Appellants,
-vs-
THE STATE OF MONTANA and DELBERT WALTER and CAROL WALTER,
Third-Party Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael J. Whalen, Whalen & Whalen, Billings,
Montana.
APR B 5 1992
For Respondent:
Dennis Paxinos, County Attorney, Billings, Montana:
Anne Sheehy and David Hoefer, Deputy County
Attorneys, Billings, Montana; Court E. Ball, Towe,
Ball, Enright & Mackay, Billings, Montana; Ward
Swanser, Moulton, Bellingham, Longo & Mather,
Billings Montana; Mark D. Parker, Attorney at Law,
B i l l i n g s , Montana
Submitted on Briefs: February 6 , 1992
Decided: April 15, 1992
Justice R. C. McDonough delivered the Opinion of the Court.
Third party plaintiffs, Thomas A. and Carolyn J. Weinberg
(Weinberg) appeal from an order of the Thirteenth Judicial
District, Yellowstone County, granting summary judgment in favor of
defendant Yellowstone County and third party defendants Delbert and
Carol Walter and the State of Montana. The District Court
dismissed Weinberg's negligence action against the County and the
State because no duty was owed. Weinberg's request that the
District Court order specific performance of an agreement between
Weinberg and Walter was dismissed because no enforceable contract
was found to exist, We affirm.
Weinberg raises three issues for our review:
I. Did the District Court err in granting Yellowstone County
leave to amend its motion to dismiss and leave to file an amended
answer to Weinberg's cross-claim?
11. Did the District Court err in determining that the State of
Montana and Yellowstone County had no duty towards Weinberg in
regards to providing accurate descriptions of the tax deed
property?
111. Did the District Court err in finding that Walter and Weinberg
had no enforceable contract upon which the court could order
specific performance?
This action was initially filed by Peter R. and Patricia F.
Quirin (Quirin) alleging that Yellowstone County acted negligently
and that Weinberg had trespassed on and caused damage to his
property. Quirin purchased approximately one acre of real property
2
in Yellowstone County. Thereafter, ~uirin built a house which
actually rests upon adjacent property belonging to third party
defendants, Delbert and Carol Walter (Walter). Quirin and Walter
acknowledged that Quirintshouse actually was at least in part on
Walter's land and discussed the possibility of a land trade. The
District Court notes that Quirin knew the house was on Walter's
property because in 1980 Quirin had the property surveyed; however,
the survey was never recorded.
Subsequently, Quirin became delinquent on his taxes and
eventually, through proceedings, a tax deed was issued to the
County. There is no dispute that Yellowstone County was properly
the owner of the property when Weinberg approached the County with
an interest in purchasing the tax deed property. Quirinls house
was listed by the State Department of Revenue as an improvement on
the tax deed property. The County Assessor's office showed Weinberg
photographs, appraisal sheets and a property description that
indicated that the house was part of the tax deed property.
Weinberg, believing the property to include the house and without
further investigation, purchased the property for $1,500.
The next day, Weinberg talked to Walter who informed him that
the house may actually rest on Walter's property. Weinberg states
that Walter told him the problem of whose property the house rested
on needed to be cleared up but that in any case if there was an
encroachment on Walter's land, Walter was prepared to make a trade.
Weinberg went to the ASCS office in Billings and after studying
maps believed the entire house was off the property he had
purchased. Weinberg went back to the assessor's office and it was
agreed that the property would be surveyed at the County's expense.
Despite the problems associated with the property, Weinberg began
a remodeling project on the house.
The survey revealed the house to be completely on Walter's
property. Thereafter, Quirin filed suit against Weinberg for
trespass in 'his' house and against Yellowstone County for
negligently misrepresenting what property the house rested on.
Weinberg filed a cross-claim against Yellowstone County for
representing that Quirin's house was an improvement of the tax deed
property when in fact it was not, and for assurances on which he
relied in beginning the remodeling of the house.
In addition, Weinberg named the State of Montana as a third
party defendant, alleging that the assessor, an agent of the State
Department of Revenue, was negligent for failing to determine that
the improvements made by Quirin were not on the property owned by
him. Finally, Weinberg named Walter as a third party defendant
alleging that he had agreed to make an exchange of land and should
be required to go forward with such an exchange. The District
Court dismissed all of Weinberg's claims as a matter of law and
Weinberg appeals.
I.
Weinberg argues that the District Court erred in granting
Yellowstone County leave to amend its answer to Weinberg's cross-
claim and its motion to dismiss to include a defense of legislative
immunity under 5 2-9-111, MCA. Section 2-9-111, MCA, was amended
by the 1991 Legislature and given retroactive application to cases
not reduced to final judgment by May 24, 1991. Although the
District Court's decision pre-dates the adoption of the amended
statute, the amended version is applicable to the instant case.
Under 2-9-111, MCA (lggl), a legislative body (the County in
this case) is not immune from causes of action arising from the
negligence of its employees. Dagel v. City of Great Falls (1991),
819 P.2d 186, 48 St.Rep. 919. Therefore, under 5 2-9-111, MCA, as
amended, legislative immunity is not an applicable defense to
Weinberg's action. Whether or not the court properly allowed
amendment of the answer and the motion to dismiss is made moot by
the amendments to the immunity statute. We conclude that
legislative immunity is not an applicable defense to the instant
case.
11.
Weinberg next claims that the District Court erred in
determining that the State of Montana and Yellowstone County had no
duty towards Weinberg. Weinberg alleges that the State, through
employees of the Department of Revenue, and the County through the
Clerk and Recorder, breached a duty owed to Weinberg. Weinberg
argues that the assessor's office advised him that the property was
owned by Yellowstone County, could be purchased at tax sale and
showed him a picture of the house representing the house to be an
improvement of the tax deed property.
The Clerk and Recorder is alleged to have admitted that the
problem was the County's mistake and to have informed Weinberg,
after specific inquiry, that Weinberg owned the property and could
begin renovations, ~pecifically,Weinberg argues that both the
State and the County breached a duty to '!act responsibly and
refrain from making specific representations upon which Weinberg
reasonably reliedn.
weinberg cites this Court's statement that It. . . we think in
general that the public has a right to rely upon the advice and
actions of public employees and officials. Chennault v. Sager
(1980), 187 Mont. 455, 463; 610 P.2d 173, 177. However, Chennault
involved the duty of public employees and officials to comply with
statutory law regarding the disposition of public lands such that
the public interest would be protected. The instant case does not
involve a dispute regarding compliance with statutory requirements
and disregard of the public interest. Instead, the instant case
involves a claim for a private right of action.
The State is generally subject to suit and liable for its
torts. Mont. Const. Art. 11, Sec. 18 (1972), 2-9-102, MCA.
However, " [it] is fundamental to the law of Torts that there can be
no negliqence if no duty exists.lt Ambrogini v. Todd (19811, 197
Mont. 111, 118, 642 P.2d 1013, 1017. Whether or not a duty exists
is a question of law. When reviewing questions of law, we will
determine if the trial court's determination as to law is correct.
Our review will be plenary. Steer, Inc. v. Department of Revenue
(1990), 245 Mont. 470, 803 P.2d 601.
Resolution of this issue requires that we determine whether a
prospective purchaser of tax deed property is entitled to rely on
statements made by the Assessor's and Clerk and Recorder's offices
in regard to the property. The District Court ruled that no such
entitlement existed and that a prospective purchaser must proceed
on the basis of caveat emptor -- let the buyer beware. We agree.
The general rule is that the doctrine of caveat emptor applies
with full force against purchasers at tax sales. See 72 Am. Jur.
Zd, State and Local Taxation 51036. Long ago, we held that:
The assessment and sale of property for delinquent taxes
is a proceeding invitum. The purchaser at such sale
buys at his peril, and the rule of caveat emptor applies.
Larson v. Peppard (1909), 38 Mont. 128, 99 P. 136, citing
Birney v. Warren (1903), 28 Mont. 64, 72 P. 293.
These cases are still the law of the State of Montana.
To find liability in this case would make the County and/or
the State a guarantor of title in tax deed proceedings. We decline
to do so. The District Court held, and we agree, that:
In the transaction here, a tax sale purchase, the Court
cannot mandate upon a governmental entity, a duty which
would virtually require a complete title search, survey,
and reassessment each time a property is sold for
delinquent taxes. Such actions are the only way the
government employees, whose job it is to respond to
public inquiries, could provide totally accurate tax sale
information and the entity could avoid liability. The
burden is more pragmatically placed upon the tax sale
purchaser, according to the caveat e m ~ t o rdoctrine, to
not purchase in haste, but to make a thorough and
independent investigation of the property, seeking the
counsel of adjoining landowners, former owners, title
insurance agents, surveyors, and other property
professionals.
Weinberg's own affidavit makes clear that through his own
investigatory measures, the very next day, he was able to determine
that a problem existed and that the house probably did not lie on
the tax deed property.
We conclude that the doctrine of caveat emptor applies to tax
deed sales. Neither the County nor the State have a duty entitling
a tax sale purchaser to rely on information regarding the
assessment, description or location of tax deed property. The
District Court is affirmed.
Weinberg's final contention is that he and Walter had an
enforceable contract to exchange the property that the house rests
on for property that Weinberg purchased. Weinberg recognizes that
an agreement to exchange land generally requires written expression
to satisfy the statute of frauds. However, Weinberg relies on 5
30-11-111, MCA, and the court's power to specifically enforce an
agreement in case of part performance.
Section 30-11-111, MCA, provides:
Contract for sale of real property. No agreement
for the sale of real property or of any interest therein
is valid unless the same, or some note or memorandum
thereof, be in writing and subscribed by the party to be
charged or his agent thereunto authorized in writing; but
this does not abridqe the power of any court to compel
the specific performance of anv aqreement for the sale of
real property in case of part performance thereof.
(Emphasis added.)
When reviewing a motion for summary judgment, all reasonable
inferences that may be drawn from the offered proof are to be drawn
in favor of the party opposing the motion. Cereck v. Albertson's,
Inc. (l98l), 195 Mont. 409, 411, 637 P.2d 509, 511. Viewing the
offered proof in a light most favorable to Weinberg, the inference
can be drawn that Walter discussed a land exchange with both
Weinberg and Quirin, worked with Weinberg and the surveyor in
placing stakes and laying out lines for the exchange and sat by
idly while Weinberg made improvements to the property in reliance
on the exchange. Weinberg contends that these actions constitute
part performance and under such circumstances the agreement is
taken out of the statute of frauds.
The ~istrict
Court ruled that discussions regarding land trade
were insufficient to create a contractual obligation. The court
ruled that there was insufficient evidence of any consideration
moving from Weinberg to Walter. At best, the court held that
Walter may have anticipated contracting in the future.
Furthermore, the District Court held that while initiation of the
remodeling project was "some1' evidence of Weinberg's part
performance, there was no evidence or indicia of what the parties
agreed to do and the terms of their agreement.
The sufficiency of acts to constitute part performance can be
decided as a matter of law. Schwedes v. Romain and Mudgett (1978),
179 Mont. 466, 587 P.2d 387. In Schwedes we distinguished between
acts which truly constitute part performance and those merely
undertaken in llcontemplation eventual performance."
of To be an
act sufficient to constitute part performance, we held the act
I1mustbe unequivocally referable to [the] contract." Schwedes, 179
Mont. at 472.
We have held that when possession is taken in pursuance of a
contract, followed by the making of valuable improvements, there is
a sufficient part performance. Hogan v. Thrasher (1925), 72 Mont.
318, 233 P. 607. We have further held that the statute of frauds
cannot be enforced where following an agreement a "buyer has made
an irretrievable change in position, or the defendant has secured
an unconscionable advantage or inflicted an unjust and
unconscionable loss upon the plaintiff." Bolz v. Meyers (1982),
200 Mont. 286, 298, 651 P.2d 606, 612. However, these cases both
involved clear and specific agreements. The question remains in
the instant case of whether or not a clear and specific agreement
was ever entered.
Section 27-1-412(5), MCA, states that "an agreement the terms
of which are not sufficiently certain to make the precise act which
is to be done clearly ascertainable" cannot be specifically
enforced. An agreement to agree to terms in the future is not an
enforceable agreement whereby specific performance will be granted.
Steen v. Rustad, 132 Mont. 96, 313 P.2d 1014. The Court, in Steen,
stated:
It is of course well-settled that a contract to be
specifically enforceable must be complete and certain in
all essential matters included within its scope. Nothing
must be left to conjecture or surmise, or be so vague as
to make it impossible for the court to glean the intent
of the parties from the instrument, or the acts sought to
be enforced. (Citations omitted.)
It is equally well-settled that absolute certainty
and completeness in every detail is not a prerequisite of
specific performance, only reasonable certainty and
completeness being required. Those matters which are
merely subsidiary, collateral, or which go to the
performance of the contract are not essential, and
therefore need not be expressed in the informal
agreement. (Citations omitted.)
In the instant case there is a lack of evidence of any
specific agreement. We agree with the District Court that no
inference can be drawn from the evidence that Walter did more than
contemplate entering an agreement in the future. While it is true
that Weinberg took possession of and began remodeling the house,
there is a lack of evidence of any consideration passing to
Weinberg upon which an agreement could be proven. Specific
performance cannot be enforced against a party to a contract if he
has not received adequate consideration for the contract. Section
27-1-415(1), MCA.
We conclude that Walter and Weinberg never entered an
enforceable agreement. The District Court is affirmed. /
We Concur:
Justice Terry N. ~rieweilerconcurring in part and dissenting in
part.
I concur in Parts I and I11 of the majority opinion, and I
concur that the State of Montana was entitled to summary judgment.
However, I would not grant summary judgment to the State of Montana
for the same reason that it was affirmed by the majority. I would
affirm the granting of summary judgment to the State because the
State's pre-tax sale representations were not the cause of
plaintiffs' damages.
Subsequent to the tax sale, plaintiffs learned that the Quirin
house was not actually on the Quirin property. At that point, they
had a right to rescind the purchase that they made at the tax sale.
The fact that they went ahead and incurred expense to make
improvements to the Quirin house was not because of representations
made by the State prior to the sale, it was because of
representations made by Delbert Walter and officials in the County
Clerk and Recorder's office that the problem would be cleared up
and Weinbergs could make the improvements they felt necessary
before occupying the house.
I dissent from that portion of Part I1 of the majority opinion
which affirms summary judgment for Yellowstone County. I agree
that the rule of caveat e??tplOr normally applies to the purchase of
property at a sale for delinquent taxes. I also agree that the
County had no duty to correct the erroneous property description
prior to the sale, and no duty to clear up the problem after the
sale. However, in this case, unlike the usual situation, the
County assumed that duty when it made affirmative representations
to the Weinbergs that it was their property in spite of the
property line discrepancy; the County would take care of the
problem; and the Weinbergs could proceed to make the improvements
they felt were necessary to occupy the house.
The Restatement (Second) of Torts 5 552, provides:
One who, in the course of his business, profession or
employment, or in any other transaction in which he has
a pecuniary interest, supplies false information for the
guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by
the justifiable reliance upon the information, if he
fails to exercise reasonable care or competence in
obtaining or communicating the information.
A claim for negligent misrepresentation is established when a
plaintiff can show:
(1) that the defendant supplied false information
for the guidance of plaintiff in his business
transaction;
(2) that the plaintiff justifiably relied upon such
information; and
(3) that the defendant failed to exercise
reasonable care or competence in obtaining or
communicating such information.
SeeBottrellvArnericanBank (1989), 237 Mont. 1, 19, 773 P.2d 694; Brown
v. Mem'll Lynch, Pierce, Ferzner, & Smith,Irzc. ( 1982) , 197 Mont . 1, 12 , 640 P. 2d
When the employees of the Yellowstone County Clerk and
Recorder's office made these affirmative representations, they
assumed a duty to act reasonably. Whether or not their
representations were reasonable, and whether or not the other
necessary elements of negligent misrepresentation were present,
were issues of fact for a jury, or the district court in the event
that a jury had been waived. I agree with the New York Court of
Appeals when, in Lindlots R a t Corporatiorz v. Suflolk C o u n (1938 )
ely , 15 N. E .2d
393, it distinguished the duty normally owed by a county at a tax
sale from the duty owed when affirmative representations are made.
In that case, the court stated:
Nor does the rule of caveat emptor apply. The
county had the option to sell this property by bargain
and sale deed, with the mere recital that it was acquired
at a tax sale and without other representation. In such
case, the doctrine of caveat emptor would apply. The
defendant, however, through its officer, chose to obtain
such advantages as it could by selling this property
through additional representations which turned out to be
false. In such case the doctrine of caveat emptor
obviously would not apply.
I would reverse the District Court's order granting summary
judgment to Yellowstone County and remand this case to the District
Court for a factual determination of whether the County's
representations to the Weinbergs were negligent; whether they were
false; whether the Weinbergs reasonably relied on those
representations; and whether the Weinbergs suffered damages as a
result of those representations.
,
I concur in the foregoing concurrence and dissent of Justice
Trieweiler.
April 15, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Michael J. Whalen
WHALEN & WHALEN
2825 3rd Ave. N., ti504
Billings, MT 59101
Dennis Paxinos, Yellowstone County Attorney
Anne Sheehy, Deputy County Attorney
P.O. Box 35025
Billings, MT 59107
Court E. Ball
TOWE, BALL, ENRIGHT & MACKEY
2525 6th Ave. N.
Billings, MT 59101
Mark D. Parker
Attorney at Law
P.O. Box 7212
Billings, MT 59103-7212
Ward Swanser
MOULTON, BELLINGHAM, LONGO & MATHER
P.O. Box 2559
Billings, Mt 59103-2559
ED SMITH
CLERK OF THE SUPREME COURT
by
STATE OF MONTANA
BY:
Deput