Paulson v. Lee

IN THE SUPREME COURT OF THE STATE OF MONTANA

JACK PAULSON and BUD GRANT,
Plaintiffs and Appellants,
-vs-

ROBERT J. LEE and DOROTHY MARIE
LEE, husband and wife, L O U I S CROPP
and IRENE CROHN, husband ans wife,
ELMER SPRUNGER and MARIE SPRUNGER,
husband and wife, and ROBERT RELLER,
Defendants and Respondents.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif Erickson, 7udge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard DeJana, Kalispell, Montana
For Respondent:
Keller & German; Robert S. Keller, Kalispell,
Monta~a

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Submitted on Briefs: Aug. 13, 1987
Decided: November 10, 1987
Filed:
blov 10 1987

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Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

In this action for slander of title, the District Court
for the Eleventh Judicial District, Flathead County, granted
the defendants a directed verdict. Plaintiffs Paulson and
Grant appealed, and the defendants cross-appealed. Our
determination of the cross-appeal renders consideration of
the other issues unnecessary. We vacate the judgment of the
District Court which granted a. directed verdict and direct
the District Court to enter summary judgment for the
defendants.
The issues are:
1. Did the District Court err when it ruled that the
judge's order in - was the law of this case?
Lee
2. Does an action to stop the construction, sale, or
lease of a four-unit dwelling affect the title or right of
possession of real property within the meaning of
5 70-19-102, MCA?
3. Did the District Court err when it denied the de-.
fense of privilege in filing notice of the pendency of the
action (lis pendens) ?
With the exception of Mr. Keller, all parties to the
present case also were parties to the case of Lee v. Flathead
County (Mont. 1985), 704 P.2d 1060, 42 St.Rep. 1258. In - Lee
Mr. Paulson and Mr. Grant were involved in the construction
of a four-unit structure in a neighborhood where the Lees,
the Crohns, and the Sprungers all lived. Mr. and Mrs.
Sprunger lived adjacent to the construction. The neighbors
became concerned about the construction project and hired Mr.
Keller as their lawyer. Mr. Keller prepared a complaint
which alleged that the building was being constructed in
violation of subdivisiorl regulations. In count one the
complaint requested mandamus to compel county officials to
"enforce the prohibition against sale, lease or transfer of
any unit of said building." In addition the complaint sought
to enjoin construction and to enjoin county officials from
granting subdivision approval-. We are concerned here only
with count one. At the time of filing the complaint in - Lee,
Mr. Keller filed a notice of lis pendens. The District Court
then granted summary judgment to the defendants in - as to
Lee
count one. As a part of that judgment the court concluded
that the notice of lis pendens was improperly filed and
ordered it rernoved. Subsequent to that summary judgment and
prior to our decision on appeal, the legislature amended 5
76-3-204, MCA. In the appeal of - this Court held that
Lee,
the amendment controlled and that Paulson and Grant no longer
were required to comply with subdivision regulations. We
therefore affirmed the summary judgment of the District Court
as to count one and affirmed the removal of the lis pendens.
Mr. Paulson and Mr. Grant, defendants in the first
action, then brought this action for slander of title. They
sought damages caused by the filing of the notice of lis
pendens. The defendants moved for summary judgment on the
grounds that the publication of lis pendens was privileged.
The District Court, in an order dated March 6, 1987, denied
summary judgment.
During the trial, after the plaintiffs had called vari-
ous witnesses, the defendants moved for a directed verdict.
The District Court granted a directed verdict for the defen--