No. 01-831
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 184
PONDEROSA PINES RANCH, INC.,
Plaintiff and Respondent,
v.
CHERIE L. HEVNER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Mark L. Guenther, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles F. Angel, Angel Law Firm, Bozeman, Montana
For Respondent:
Robert K. Baldwin, Goetz, Gallik, Baldwin & Dolan, P.C., Bozeman,
Montana
Submitted on Briefs: March 28, 2002
Decided: August 27, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Cherie L. Hevner appeals from an Order Granting Partial
Summary Judgment and an Order Awarding Fees and Costs from the
Eighteenth Judicial District Court, Gallatin County. We affirm and
remand for a determination of attorney’s fees.
¶2 The following issues are dispositive of this appeal:
¶3 1. Did the District Court err in granting summary judgment to
Ponderosa Pines Ranch, Inc.?
¶4 2. Did the District Court err in awarding fees and costs
under Rule 11 and § 37-61-421, MCA?
¶5 3. Should this Court award Ponderosa Pines Ranch, Inc.,
attorney’s fees under Rule 32, M.R.App.P?
BACKGROUND
¶6 In the early 1970's, Ponderosa Pines Ranch, Inc. (“Ponderosa”)
acquired approximately 13,000 acres of land in Gallatin County,
Montana. Ponderosa subdivided that property into around 1,000
lots. On May 18, 1979, Ponderosa recorded a Declaration of
Easements and Rights-of-Way (the “Declaration”). In the
Declaration, Ponderosa granted and reserved easements across and in
favor of all lots within the development. The Declaration did not
specify the location of any particular easement.
¶7 In 1985, Hevner purchased a lot in the development from
Ponderosa. Hevner and Ponderosa executed a warranty deed, dated
May 25, 1985, transferring the lot to Hevner. The deed
incorporated the Declaration and its respective easements.
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¶8 Beginning sometime around 1996, a dispute arose concerning the
portion of Homestead Road that runs across Hevner’s property.
Hevner claims she made several attempts to stop others from using
the road. During the summer of 2000, Hevner successfully blocked
the Homestead Road by placing a fifth wheel trailer and some debris
on the roadway.
¶9 Ponderosa then filed this action. In its complaint, Ponderosa
alleged that it had an easement on Homestead Road. Ponderosa also
sought monetary, injunctive and declaratory relief. On August 23,
2000, the court granted Ponderosa a preliminary injunction
requiring Hevner not to interfere with Homestead Road.
¶10 Ponderosa then moved for partial summary judgment, arguing
that it had an easement on Homestead Road by express reservation,
by implication and by prescription. It supported that motion with
several affidavits and aerial photographs taken by the United
States Department of Agriculture in 1979 and 1991. The court held
a hearing regarding the motion for partial summary judgment on
March 19, 2001. It then granted Ponderosa’s motion on August 3,
2001.
¶11 Following the court’s order, Ponderosa moved for an award of
fees and costs under Rule 11, M.R.Civ.P., and § 37-61-421, MCA. On
September 19, 2001, the court held a hearing regarding the motion
for attorney’s fees. The court then issued an Order Awarding Fees
and Costs in favor of Ponderosa on October 4, 2001.
¶12 Hevner appealed both orders.
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STANDARD OF REVIEW
¶13 We review a district court’s grant of summary judgment de
novo, applying the same evaluation under Rule 56, M.R.Civ.P., as
the district court. See Vivier v. State Dep’t of Transp., 2001 MT
221, ¶ 5, 306 Mont. 454, ¶ 5, 35 P.3d 958, ¶ 5; Bruner v.
Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.
In Bruner, we stated that:
The movant must demonstrate that no genuine issues of
material fact exist. Once this has been accomplished, the
burden then shifts to the non-moving party to prove, by
more than mere denial and speculation, that a genuine
issue does exist. Having determined that genuine issues
of fact do not exist, the court must then determine
whether the moving party is entitled to judgment as a
matter of law. We review the legal determinations made
by a district court as to whether the court erred.
Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).
¶14 When reviewing a district court’s decision to impose Rule 11
sanctions, we use a combined standard: “whether the trial court's
findings of fact are clearly erroneous and whether its conclusions
constitute an abuse of discretion.” Madison Addition Architectural
Comm. v. Youngwirth, 2000 MT 293, ¶ 10, 302 Mont. 302, ¶ 10, 15
P.3d 1175, ¶ 10.
ISSUE ONE
¶15 Did the District Court err in granting summary judgment to
Ponderosa Pines Ranch, Inc.?
¶16 An easement is a nonpossessory interest in land that gives a
person the right to use the land of another for a specific purpose.
See Ruana v. Grigonis (1996), 275 Mont. 441, 447, 913 P.2d 1247,
1251; Kuhlman v. Rivera (1985), 216 Mont. 353, 358, 701 P.2d 982,
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985. A person cannot create, grant or transfer an easement except
by operation of law, by an instrument in writing or by
prescription. See Ruana, 275 Mont. at 447, 913 P.2d at 1251; Wild
River Adventures, Inc. v. Board of Trustees of Sch. Dist. No. 8
(1991), 248 Mont. 397, 400, 812 P.2d 344, 346. A person creates an
easement by reservation through written documents of conveyance.
See Burleson v. Kinsey-Cartwright, 2000 MT 278, ¶ 16, 302 Mont.
141, ¶ 16, 13 P.3d 384, ¶ 16. Where a document fails adequately to
fix the location of an easement, a court may ascertain the location
by use. See JON W. BRUCE AND JAMES W. ELY, THE LAW OF EASEMENTS AND LICENSES
IN LAND § 7:6, at 7-12 (2001).
¶17 After reviewing the evidence presented by the parties, the
District Court concluded that Homestead Road existed at the time of
the Declaration and at the time Hevner bought the property from
Ponderosa. Furthermore, the court held that the road was open and
visible to Hevner. Any dispute about these facts, according to the
court, were not genuine.
¶18 Ponderosa presented the court with affidavits and physical
evidence to demonstrate that Homestead Road existed across Hevner’s
property. Roberta Moche, the President of Ponderosa, testified by
affidavit that a series of roads existed on the property when
Ponderosa first began its development. These roads included
Homestead Road. She also stated that Hevner and other individuals
had used Homestead Road at will to access other property. This use
had continued uninterrupted until 1999, when Hevner briefly blocked
the road.
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¶19 Several disinterested witnesses also testified via affidavit.
Mel Obrigewitch testified that he ran cattle around Hevner’s
property and had driven his truck up Homestead Road since 1978.
Donna Buzdikian stated that she had used the road since 1976 for
sightseeing and her husband used the road to haul grain. Art
Koenes testified that he had hauled grain on Homestead Road since
1975.
¶20 Ponderosa also provided two aerial photographs to prove that
the location of Homestead Road had not moved. The photographs were
dated September 1, 1979, and July 5, 1991. The dates of these
photos correspond to approximately six years before and after she
bought the property, respectively. Ray Center, a licensed
surveyor, testified that Homestead Road appeared in both aerial
maps and in the same location as it presently runs across Hevner’s
property. Center also testified that no evidence existed on the
ground that the road had existed in a different location.
¶21 Hevner counters that the court failed to “properly
authenticate” the aerial photographs but offers no statute or case
law in support of this assertion. Instead, she simply argues that
the photos do not label Hevner’s lot, specify what area they depict
or indicate from what altitude they were taken. Generally,
deciding whether an adequate foundation exists for the
admissibility of evidence is within the sound discretion of the
district court. See State v. Delaney, 1999 MT 317, ¶ 14, 297 Mont.
263, ¶ 14, 991 P.2d 461, ¶ 14. The court makes this decision
according to Rule 104(a), M.R.Evid. See Delaney, ¶ 14. The rule
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states that “[p]reliminary questions concerning . . . the
admissibility of evidence shall be determined by the court. In
making its determination it is not bound by the rules of evidence
except those with respect to privileges.” Rule 104(a), M.R.Evid.
A proponent satisfies the requirement of authentication by
presenting evidence sufficient to satisfy a court’s finding that
“the matter in question is what its proponent claims.” Rule
901(a), M.R.Evid.
¶22 Here, a certificate from the United States Department of
Agriculture accompanied each photo stating that they were taken of
Gallatin County, Montana. Center testified that the photos
depicted Hevner’s lot and surrounding property. On these bases,
Ponderosa filed a motion asking the District Court to take judicial
notice that the photos were true and accurate copies of aerial
photographs of the relevant area. Hevner never opposed Ponderosa’s
motion. For these reasons, we conclude that the court properly
took judicial notice of the photos' accuracy and accepted them as
evidence.
¶23 Given the whole of this evidence, we conclude that Ponderosa
demonstrated that Homestead Road existed in its present location at
the time Hevner bought her lot. Having done so, the burden then
shifted to Hevner to come forth with proof that Homestead Road did
not exist. See Bruner, 272 Mont. at 264, 900 P.2d at 903. She
failed to do this.
¶24 Hevner provided little to the District Court in support of her
contention that Homestead Road had not existed when she purchased
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her property other than simple denials and speculation. Her
primary argument is that the road did not exist at the time she
purchased her lot. Her testimony, however, actually suggests that
Homestead Road was open and visible at the time she acquired the
property. When asked during cross-examination if any kind of
roadway existed where Homestead Roadway was now located, Hevner
answered that “[t]here was a couple of tire tracks.” Hevner did
explain later, during re-direct examination, that the tire tracks
“could have been made by me.” Nevertheless, Hevner’s testimony
regarding the roadway is, at best, a mere denial of its existence.
Mere denials will not prevent an order for summary judgment. See
Bruner, 272 Mont. at 264, 900 P.2d at 903.
¶25 Hevner also notes that neither the Certificate of Survey
attached to her deed nor the Declaration show Homestead Road as
laying across her property. She further observes that she was
unable to find any other maps or records that depict Homestead
Road. These failures to indicate Homestead Road, according to
Hevner, prove that the road did not exist when she purchased the
property.
¶26 Ponderosa acknowledges that the Declaration did not show
Homestead Road, but notes that the document was designed to
establish which lands the existing easements burdened or
benefitted. The Declaration was not designed to, and did not, list
any individual easements. Instead, it simply noted that Ponderosa
had not yet determined the location of the easements.
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¶27 Where, as here, an easement is reserved without designating a
location, and a road exists at the time of the reservation, then a
court will treat the road as the easement that the parties
contemplated. See Eureka Land Co. v. Watts (Va. 1916), 89 S.E.
968, 969. “[P]arties are presumed to contract with reference to
the condition of the property at the time of the sale, provided the
marks are open and visible.” Godfrey v. Pilon (1974), 165 Mont.
439, 445, 529 P.2d 1372, 1375 (citing Pioneer Mining Co. v. Bannack
Gold Mining Co. (1921), 60 Mont. 254, 263, 198 P. 748, 751. The
key inquiry, therefore, is whether a passageway, even if only a
couple of tire tracks, was open and visible. To this end, Hevner
provided no proof that Homestead Road was not open and visible.
¶28 Hevner argues that the court should allow her to cross-examine
Ponderosa’s affiants, particularly Center. While we agree that
summary judgment is improper where the credibility of an affiant
may be crucial to a decision of material fact, this is not such an
instance. The aerial photos, of which the court took judicial
notice, shows Homestead Road on Hevner’s property both before and
after she purchased the lot. Such evidence is not susceptible to
cross-examination.
¶29 For these reasons, we conclude that the aerial photos
established the absence of a genuine issue of material fact
regarding the existence of Homestead Road in its present location
prior to the time she purchased her property. Furthermore, her
mere denials are insufficient to meet her burden of coming forward
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with evidence to establish that a genuine issue of material fact
exists.
ISSUE TWO
¶30 Did the District Court err in awarding fees and costs under
Rule 11 and § 37-61-421, MCA?
¶31 Rule 11, M.R.Civ.P., requires that an attorney sign every
pleading, motion or other paper he or she submits. The signature
“constitutes a certificate by the signer . . . that to the best of
the signer’s knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact.” Rule 11,
M.R.Civ.P. If an attorney fails to abide by this rule, the court
“shall impose . . . an appropriate sanction, which may include an
order to pay the other party or parties the amount of the
reasonable expenses . . . including a reasonable attorney’s fee.”
We give a district court broad discretion to decide whether the
factual circumstances of a particular case amount to frivolous or
abusive litigation tactics. See Friends of the Wild Swan v.
Department of Natural Resources & Conservation, 2000 MT 209, ¶ 58,
301 Mont. 1, ¶ 58, 6 P.3d 972, ¶ 58.
¶32 The District Court found that Hevner’s contention that
Homestead Road did not exist in 1985 was not well grounded in fact.
According to the court, the aerial photographs clearly showed that
Homestead Road existed in “exactly the same location in 1979 where
it exists today.” The court thus found that Hevner’s arguments to
the contrary amounted to “‘unreasonably and vexatiously’
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multiplying the proceedings.” It therefore awarded fees and costs
to Ponderosa under Rule 11.
¶33 We conclude that these findings are not clearly erroneous and
that the District Court’s conclusion that these facts constitute a
Rule 11 violation is not an abuse of discretion.
ISSUE THREE
¶34 Should this Court award Ponderosa Pines Ranch, Inc.,
attorney’s fees under Rule 32, M.R.App.P?
¶35 We may award damages that we deem proper when an appeal is
“taken without substantial or reasonable grounds.” Rule 32,
M.R.App.P.; see also Grenz v. Fire & Cas. of Conn., 2001 MT 8, ¶
18, 304 Mont. 83, ¶ 18, 18 P.3d 994, ¶ 18. The District Court
concluded that Hevner’s arguments concerning Homestead Road were
not well grounded in fact. She now makes the same arguments in the
present appeal despite photographs to the contrary.
¶36 We therefore award Ponderosa reasonable attorney’s fees and
costs associated with this appeal and remand for a determination of
the amount.
¶37 Affirmed and remanded.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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