Bache v. Owens

                                       No.    96-413
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                             1996


LLOYD BACHE and VIRGINIA            BACHE,
            Plaintiffs          and Respondents,


MARK OWENS, d/b/a        MARK OWENS LOGGING,
            Defendant,     Counterclaimant,
            and Appellant.



APPEAL   FROM:       Distr~ict Court of the Nineteenth     Judicial    District,
                     In and for the County of Lincoln,
                     The Honorable   C. B. McNeil,    Judge presiding.


COUNSEL OF RECORD:
            For    Appellant:
                     I. James Heckathorn,           Murphy,      Robinson,
                     Heckathorn & Phillips,           Kalispell,        Montana
            For    Respondents:
                     Lon J. Dale,   Milodragovich,             Steinbrenner
                     & Binney,  Missoula,     Montana


                                       Submitted       on Briefs:      November   7,    1996
                                                         Decided:      December   10,   1996
Filed:
Justice           Terry          N. Trieweiler                 delivered                 the     opinion               of        the      Court.

          The        respondents,                 Lloyd           Bathe            and      Virginia                Bathe,               filed         an
action          against          the     appellant,              Mark Owens,                   d/b/a        Mark            Owens Logging,

in      the       District              Court       for        the       Nineteenth                    Judicial                  District              in

Lincoln           County           to     enjoin             Owens       from            encroaching                    on        an      easement

which         they        alleged          had      been          established                   in         their            favor.               Owens

filed         a     counterclaim                  for         specific              performance                    of         the         buy-sell

agreement             entered            into      between              the        parties            and        for        other           relief.

The District                 Court       granted             summary          judgment            in       favor            of     the      Bathes,

and denied               Owens'         motion          for      summary             judgment.                   Owens appeals                        the
judgment            of    the      District             Court.               We affirm               the        District                Court.

          The dispositive                       issue        on appeal              is     whether              the      District                Court

erred         when          it     denied          Owens'              motion            for         summary                judgment,                 and

granted           summary          judgment             in     favor          of     the       Bathes.

                                                   FACTUAL BACKGROUND

          The Bathes               owned approximately                             34 acres          of property                        in Lincoln

County.              In April            1988,      they         entered             into        an agreement                       with         Owens

for       the        sale         and      purchase               of         2.42         acres            of         their             property.

Pursuant            to    the      Agreement              to     Sell         and Purchase                      ("the            Agreement"),

the      Bathes          promised          to:
           [C]onvey    the real property    by Warranty   Deed, free                                                               of     all
          liens     and encumbrances     except  those    described                                                               in      the
          title    insurance   section   of this  agreement.

          The title               insurance             section          of the Agreement                          provided               that        the

Bathes          would:

           [Flurnish     Buyer     Title        Insurance                committing      to
          insure     merchantable        title       to the real     property       in the
          Buyer's      name,      free         and     clear   of    all     liens      and
          encumbrances       except:      encumbrances       hereinabove      mentioned,

                                                                         2
        zoning              ordinances,               building         and   use     restrictions,
        reservations                in           federal      patents,      beneficial         utility
        easements             apparent            or of record,        easements    of record,         and
        no others.

        Subsequently,                    a Preliminary                    Title        Insurance                  Policy          was issued

with    regard         to      the       property,                 and provided                  that:
        PRIOR TO THE ISSUANCE OF TITLE        INSURANCE, a complete
        legal description    must be placed  of record  in the office
        of the Lincoln    County Clerk   and Recorder.

        On July         6, 1988,               the     Bathes            filed        Certificate                  of Survey              Number

1657       ("COS No.           1657")           with        the      Lincoln               County          Clerk         and Recorder.

COS No.        1657 depicts                two easements                      along        the westerly                    border         of the

property:                (1)         a     thirty-foot-wide                           private                roadway               easement,

retained         by the        Bathes;               and     (2) a public                  utility            easement.                 On that

same    day,      the        Bathes            executed             a Warranty                 Deed          in     favor          of     Owens.

The deed         describes               the     property,                   and references                       COS No.          1657.

        On July         8, 1988,               the     parties               finalized               their         transaction,                 and

executed          a     Contract                for         Deed             which         also          makes             reference             to

COS No.        1657.

        During          1991         and        1992,         Owens              constructed                 a building                   on    the

property          he     purchased                   from          the        Bathes.                 He      and          his      building

contractor,             Mike             Helberg,                  examined                cos         No.          1657          prior          to

establishing             the         building              site.             However,             they        misidentified                     the

easement         boundary,               and constructed                       the     building               only         six     feet        from

the    property         boundary.                    As a result,                    the     building                encroached                upon

twenty-four            feet      of       the        Bathes'             easement.

        The Bathes             filed           an action             in the           District               Court.              They     sought

the    removal          of      Owens'               building,                and      contract                   remedies              for     the

obstruction            of      their           easement.                  Owens contended                         that       no easement

                                                                         3
existed,               and          asserted                  counterclaims                         for        specific                 performance,
breach           of        contract,                    estoppel,                     fraud            and         deceit,              quiet            title,
slander          of        title,            and punitive                        damages.
           Owens moved                     for       partial              summary               judgment.                 He contended                     that,
as      a matter               of         law,          the          land        sale           documents                did          not         create           an
access         easement                in        favor          of      the           Bathes.

           The         Bathes                filed             their              own           motion             for          partial                summary

judgment.                  They        asked            the        District                 Court         to       conclude,                as a matter

of      law,          that           the         land           sale            documents                  created               an       easement                 by
reservation                  in      their             favor.
           The District                      Court            granted             partial               summary            judgment                 in     favor

of      the      Bathes,              and         certified                     its         judgment               as     final             pursuant               to

Rule       54(b),            M.R.Civ.P.,                       for          purposes               of      appeal.                 On appeal,                      in

Bathe I,       we held                that             the         parties'                 land        sale         documents                    created           a

valid         easement               in      favor            of      the        Bathes.                We then            remanded                the        case

to      the      District                   Court             for         its             determination                    of         the         remaining

issues.               Bachev. Owens (19941,                             267 Mont.                  279,        883 P.2d                 817.

           On remand,                 the         Bathes              filed               a motion           for        dismissal                 of     Owens'

counterclaims                       by summary                     judgment.                    Owens also                moved             for        summary

,judgment             in       his          favor.                   He         claimed             that           the         existence                 of        an

easement          contradicts                        the       express                provisions               of        the     Agreement.                       The

District              Court           denied                 Owens'             motion             for         summary                judgment,                   and

granted          summary              judgment                  in     favor               of    the      Bathes.
           Subsequently,                         the       Bathes             again             moved        for        summary             judgment               on

the      remaining                  issues.                They        requested                   injunctive                  relief             to     enjoin

Owens from                 interfering                     with        their               easement,               and to          require               him       to


                                                                                      4
remove             his           building.                          They      also            requested                       an     award            of         their
attorney                fees.            The District                       Court         granted                 the     Bathes'               motion,                and
certified                  its      judgment                      as final.

                                                                        DISCUSSION

            Did          the       District                   Court         err         when        it         denied          Owens'            motion                for

summary              judgment,                     and            granted          summary                judgment                  in        favor         of         the

Bathes?

            Summary               judgment                   is     governed             by Rule                56(c),             M.R.Civ.P.,                   which

provides,                 in      relevant                   part:

            The judgment      sought     shall    be rendered       forthwith     if the
            pleadings,    depositions,         answers to interrogatories,           and
            admissions    on file,     together     with the affidavits,        if any,
            show that    there     is no genuine        issue    as to any material
            fact   and that    the moving party         is entitled      to a judgment
            as a matter     of law.

            The          purpose                  of         summary          judgment                    is       to         encourage                judicial

economy             through             the            elimination                of any unnecessary                                 trial.           However,

summary             judgment                 is        not        a substitute                for         trial          if        a genuine               factual

controversy                      exists.                 Reavesv.Reinbold                 (1980),                 189 Mont.                284,        288,            615

P.2d        896,          898.

            It      is      well         established                       that         the     moving              party             must       prove                that

it     is        entitled               to        judgment             as     a matter                   of     law.               To do this,                   it      is

required              to         show a complete                        absence               of any genuine                          factual              issues.

D’Agostinov.Swanson                        (1990),                 240 Mont.             435,            442,      784 P.2d                   919,      924.             To

defeat            the       motion,                the            nonmoving             party            must       set            forth        facts            which

demonstrate                      that        a genuine                factual             issue            exists.                 O’Bagvv.FirstInterstate

BankofMssoula                     (19901,               241 Mont.                 44,     46,            785 P.2d              190,           191.
           on appeal,              Owens maintains                  that         the       District                Court           erred             when
it      denied        his       counterclaims.                      On that                basis,                he     contends                     that
summary            judgment           for         the      Bathes          should               be         reversed,                    and          that

summary           judgment            should,            instead,           be granted                      in        his         favor.                We

will,           therefore,            address            each       of     his          counterclaims                            asserted               on

appeal.

                                                  SPECIFIC          PERFORMANCE
           The Agreement                 among the          parties             did     not      explicitly                      mention              the

Bathes'           easement.              Owens maintains                   that         the      Agreement                   is         a binding

contract            which          establishes              the      terms            of      the          sale,            and          that         the
subsequent                 creation              of       the       Bathes'                easement                    constitutes                           a
modification.                 This        modification,                  he asserts,                  is      invalid              because              it

was not           supported              by consideration,                       and was not                     a product                    of      the

parties'            mutual           consent.                   Therefore,                 he        contends                    that           he      is

entitled             to      specific             performance                of         the          strict             terms              of         the

Agreement

           Relevant          to our            consideration               of Owens'             argument                   is     the          law of

the     case       doctrine,              which         provides:

            [Iln  deciding      a case upon appeal,     when the Supreme Court
           states     in    its    opinion   a principle       or rule     of  law
           necessary     to the decision,     such pronouncement      becomes the
           law of the case,         and must be adhered      to throughout     its
           subsequent      proceedings,    both in the trial      court   and upon
           subsequent      appeal.
Haines Pipeline Construction, Inc. V. Montana Power Co. ( 19 94 ) , 2 6 5 Mont                                                          2 8 2 , 2 8 9,

876 P.2d           632,      637      (citing            Zavarelliv.Might              (19891,             239 Mont.                    120,         124,

779 P.2d            489,      492).

           In      Bathe I,         we      stated         that          there          were          four            instruments                       of

conveyance:                  (1)         the       Agreement               to          Sell           and             Purchase                     ("the

                                                                     6
Agreement");             (2)        the        Warranty             Deed;     (3)      the    Contract              for      Deed;       and
(4)      Certificate                of          Survey         Number         1657           ("COS      No.          1657").                We
interpreted            those         four         instruments,                and held          that         they         established

a valid        easement             in     favor          of   the     Bathes.           BacheI,         267 Mont.                at    286,

883 P.2d        at     822.

          Owens ' counterclaim                       is,       in    essence,          a collateral                 attack          on our

prior       holding       in        BacheI.           As a result               of     that      decision,                 the      Bathes

successfully            established                  the existence                  of a valid           easement                in their

favor       on Owens'          property;              they          cannot      now be compelled,                         by an order

requiring         specific                performance,                 to    forfeit          that      interest.
          Furthermore,                    the      Bathes             complied           with          the      terms             of     the

Agreement.             Therefore,                contrary            to Owens'          assertions,                 there         was not

a modification                 of        the     Agreement,             nor     was one necessary.

          Pursuant        to        the         Agreement,            the     Bathes          promised              to:

           [Clonvey     the real property    by Warranty   Deed, free                                                      of all
          liens      and encumbrances     except  those   described                                                       in the
          title     insurance   section   of this  aqreement.

(Emphasis         added.)

          The title        insurance                 section           of the Agreement                  provided                that    the

Bathes       would:

           [Flurnish       Buyer    Title       Insurance                    committing           to
          insure     merchantable         title      to the real         property         in the
          Buyer's        name,     free        and     clear      of     all       liens         and
          encumbrances       except:       encumbrances        hereinabove         mentioned,
          zoning       ordinances,          building         and     use      restrictions,
          reservations         in    federal        patents,       beneficial            utility
          easements       apparent     or of record,         easements       of record,          and
          no others.

(Emphasis         added.)
              Subsequently,                  a Preliminary                    Title          Insurance          Policy,            which          was

required              by the        Agreement,                   was issued             with         regard        to the          property.
It      provided            that:

              PRIOR TO THE ISSUANCE OF TITLE        INSURANCE,    a complete
              legal description    must be placed  of record   in the office
              of the Lincoln    County Clerk   and Recorder.

              The Bathes             filed          COS No.            1657,          which        contains           their        easement,

prior          to      closing,              and          in      accordance                with      the      Preliminary                   Title

Insurance              Policy.           Both         the         Warranty            Deed and the              Contract              for        Deed

reference              COS No.          1657.              As a result,                 the        easement           in      favor         of    the

Bathes          was,        in fact,           "of         record,"           and Owens had constructive                                 notice

of      its     existence.
                                                          BREACH OF CONTRACT

              Owens maintains                      that         the    Bathes          did     not      comply           with      the       terms

of      the     Agreement,               and         have,            therefore,              breached             the     terms         of       the

parties'              contract.               This             counterclaim             is     subsumed            by the          claim          for

specific              performance,                  and fails                for      the      same reasons.
                                                                      ESTOPPEL

              Owens        asserts           that          the        Bathes          are     estopped             from         claiming             an

easement.                  He contends                    that         the     Bathes              concealed          material                facts

with          the     knowledge              that          they        would          be acted          upon,         and        that,           as a

result,             he changed               his      position               for      the      worse.

              We begin            our    analysis                  with       the      principle              that,           u [elquitable

estoppel              is    not      favored               and will            be sustained                 only         upon      clear          and

convincing                 evidence."                Duchamv.Tuma                   (1994),          265 Mont.             436,       441,        877

P.2d          1002,        1006.
          The         six         required             elements              of       equitable            estoppel             are          as
follows         :

          1)   There must be conduct,      acts,   language or silence                                                          by
          the   estopped    party  amounting     to a representation                                                            or
          concealment    of facts;

          2)    these    facts   must  be known to the estopped      party                                                      at
          the time of the conduct,          or at least  the circumstances
          must    be such      that   knowledge   of them is     necessarily
          imputed     to the estopped     party;

          3)         the truth    concernins                      these facts                   must be unknown                 to
          the        other  oartv    claiminq                     the benefit                   of the estoooel                 at
          the        time they were acted                         upon;

          4)    the conduct    must be done with    the intention,     or at
          least   with the expectation,    that it will   be acted upon by
          the other    party,   or under the circumstances        that it is
          both natural     and probable  that   it will  be acted upon;

          5)  the                conduct        must      be relied               upon      by the         other       party;
          and

          6)    the other                   party       must in fact    act                     upon it         in     such a
          manner as to                     change       the other  party's                       position            for the
          worse.

Ducham     ,    265 Mont.                at    441-42,           877 P.2d            at    1006         (emphasis        added).

          Owens has                failed         to   present              clear         and convincing               evidence              in

support              of      these            elements.                 Although                the      preliminary                 title

commitment                 did     not        reference          the        Bathes'         easement,           it     did      state:

          PRIOR TO THE ISSUANCE OF TITLE        INSURANCE, a complete
          legal description    must be placed  of record  in the office
          of the Lincoln    County Clerk   and Recorder.

          The        Bathes           complied            with     this           provision             when,        prior       to      the

issuance              of     title            insurance,           they           filed         COS No.         1657          with       the

Lincoln             County         Clerk        and Recorder.                 As we have previously                          held,       the

Agreement,                 the       Warranty          Deed,       the        Contract            for     Deed,        and      COS No.

1657      created                a valid         easement          in        favor         of    the      Bathes.             Based          on

these      documents                 of conveyance,               Owens had constructive                             notice          of the

                                                                        9
easement,                and his             estoppel             claim       necessarily                 fails             as a matter                   of
law.

                                                             FRAUD & DECEIT

             Owens'            claim         for      fraud         and deceit                 is      based           upon         the      alleged

failure           of       the       Bathes          to disclose                 the     existence                of       their          easement.

This       claim          is       similar          to     the      estoppel            claim,          and fails,                  as a matter

of     law,        for         the       same reason.

           The Warranty                    Deed and the                 Contract           for        Deed both               reference                COS

No.     1657,            and at           the      time      of     closing,             the        Bathes'             easement             was "of

record."                   As        a     result,            Owens          had         constructive                      notice            of        the

easement             by operation                    of      law.         The Bathes                 had no affirmative                            duty

to      disclose                   that          which           was,        by        virtue           of           the           conveyancing

documents,                   of      public          record.               Owens          cannot         now            assert            that         the

existence                 of      the      easement               was a fact              which          was           fraudulently                    and

deceitfully                    suppressed                by the         Bathes.

                                                                  QUIET       TITLE

             Finally,              Owens claims                  that      he is         entitled             to        quiet        his      title.

This         claim         was         resolved            by our          decision             in     BacheI.                In     that         case,

we     held            that          the         Bathes           have       a        legitimate               right,               title,             and

interest             in        their         easement             on Owens'             property.                    They       do not            claim

an easement.                      They     have a valid                 easement.           Their         easement,                  therefore,

is     not       a cloud             on Owens'             title,          and his             claim         fails          as a matter                   of

law.
           We conclude                    that       there        are no genuine                     issues            of material                fact,

and       that         the        Bathes           are     entitled              to     judgment             as        a matter              of    law.

Accordingly,                      we hold           that         the      District             Court         did        not         err      when         it


                                                                            10
denied     Owens'   motion    for   summary judgment,           and granted   summary
judgment     in favor    of the Bathes.
     The judgment        of the District        Court   is   affirmed.




We concur:



     Chief     Jkstice




             Justices




                                           11
Justice        W. William                 Leaphart,            dissenting.



         I dissent             with        regard            to the breach                      of contract            claim.           The
Court        treats         Owens'         claims         as     collateral                 attacks            upon our holding
in Bathe            I in which we held                       that       the Buy/Sell                   Agreement,            Contract
for     Deed and Certificate                            of     Survey,             created             a valid         easement          in
favor        of Bathe.              The fact              that       these          instruments                created         a valid
easement            as of      the time              of closing,                  however,             does not preclude                    a
claim        that      such an easement was not                                   contemplated                 by the        original
Buy/Sell            Agreement             which         provided              that          Bathes         would        convey          the
property            "free     of all           liens      and encumbrances                        except        those described
in     the     title          insurance                section          of        this          agreement."                 The title
insurance              section            of     the      Agreement                 provided            that      Bathes           would
convey        title          free     and clear                of all         liens             and encumbrances                except
easements             of record.                 When the Agreement                             speaks of easements                     "of
record,"            there      is an ambiguity                    as    to        time;         that     is,     "of     record"         as
of when.            Despite          the fact           that        Bathes'           easement was "of                   record"         as
of     the date             of the closing,                    there         is     a genuine             issue        of    material

fact      as to         whether,               in    signing            the        Agreement,              the     parties           only
contemplated                easements               of record           as of the April                        1988 date        of the
Agreement             as opposed to an easement which was recorded                                                     on July       6th,
two days before                     the        closing.             When there                  is     an ambiguity             in      the
contract,             the intent               becomes a question                         for    the jury.             Klawitter         v.
Dettman         (1994),             268 Mont.             275,         281,        886 P.2d             416,      420;       see also
                                                                                                                             _-
Johnson v. Nyhart                     (1995),           269 Mont.             379, 387,                889 P.2d 1170,              1174.

                                                                     12
I would    reverse      the summary judgment     as to breach    of contract      and
remand for     trial     on that   issue.




Justices     Karla     M. Gray and James C. Nelson      join    in   the   foregoing
dissent.




                                            13