NO. 94-028
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
BERNARD F. CECHOVIC and JUNE C. CECHOVIC,
Plaintiffs and Respondents,
77
.
HARDIN & ASSOCIATES, INC., W. EDWARD HARDIN,
and DIXIE BULLOCK,
Defendants and Appellants,
and
PAMELA B. SAVILLE, n/k/a PAMELA SPRINGALL,
Defendant, Respondent, and Cross-Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Terry F. Schaplow, Attorney at Law, Bozeman,
Montana; James H. Goetz and Robert K. Baldwin,
Goetz, Madden & Dunn, Bozeman, Montana
(for Hardin & Assoc, W. E. Hardin, and Bullock)
Brenda R. Cole and Kent R. Douglass, Swandal,
Douglass, Frazier & Cole, Livingston, Montana
(for Springall)
For Respondents:
Calvin L. Braaksma, Landoe, Brown, Planalp
& Braaksma, Bozeman, Montana (for Cechovics)
For Amicus Montana Association of Realtors:
John K. Tabaracci, Sullivan, Tabaracci,
& O'Rourke-Mullins, Missoula, Montana
Submitted on Briefs: March 16, 1995
Decided: August 24, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiffs, Bernard and June Cechovic, filed a complaint,
and later an amended complaint, in the District Court for the Sixth
Judicial District in Park County in which Dixie Bullock, Edward
Hardin, Pamela Saville (n/k/a Pamela Springall), and Hardin and
Associates were named as defendants. The Cechovics alleged that
they sustained damages as a result of Bullock's negligent
misrepresentation regarding the boundary for property they
purchased from Saville. Saville filed a cross-claim against Hardin
and Bullock in which she sought indemnification for any damages she
might be obligated to pay, plus her costs and attorney fees.
Following trial, the jury returned a verdict in favor of the
Cechovics. The District Court entered its judgment and an
indemnification order in favor of Saville against Hardin and
Bullock. The District Court denied Hardin and Bullock's post-trial
motions which were filed pursuant to Rules 50 and 59, M.R.Civ.P.,
and denied Saville's motion for an award of attorney fees and
costs. Hardin and Bullock appeal from the judgment and post-trial
orders. Saville appeals from the post-judgment order denying her
attorney fees. We affirm the judgment of the District Court and
its denial of the parties' post-trial motions.
We rephrase the issues on appeal as follows:
1. Was there substantial evidence to support the jury's
verdict in favor of the Cechovics?
2. Did the District Court abuse its discretion when it
refused Hardin and Bullock's proposed jury instructions?
3. Did the District Court err when it denied Hardin and
Bullock's motion for summary judgment based on the statute of
limitations, or when it declined to instruct the jury on that
subject?
4. Was the jury's damage award supported by substantial
credible evidence?
5. Did the jury properly award Pamela Saville damages?
Saville raises the following issue on cross-appeal:
Did the District Court err when it denied Pamela Saville's
motion to award attorney fees?
FACTUAL BACKGROUND
In 1977, James Grizzard divided a parcel of land located in
Park County and sold Tract 4, a ZO-acre parcel, to Pamela Saville
and her late husband. Grizzard retained Tract 5, which was located
to the west of Tract 4. Saville, who was not a Montana resident,
had minimal involvement with Tract 4 after it was purchased. She
and her husband divided their 20-acre parcel into two lo-acre
parcels--an east tract and a west tract. In 1980, the Savilles
sold the east Tract, 4B, to Jim and Gwen Hand1 and kept the west
Tract, 4A. Sometime in the early 198Os, Mr. Saville informed Hand1
that he could graze horses on Tract 4A if he would put up a
temporary fence to keep them off the neighboring property.
Hand1 spoke to Grizzard about building a fence, and Grizzard
agreed to allow Hand1 to construct the fence. Grizzard indicated
the approximate location of the boundary pins that divided his land
from the Savilles. Hand1 constructed the fence between two
surveyor pins and pastured his horses on Tracts 4A and 4B.
However, the pin to which the south end of the fence was anchored
was not the actual boundary pin. As a result, the fence that Hand1
believed to be the boundary between Tract 4A and Grizzard's
property included property that actually belonged to Grizzard.
Shortly after Mr. Saville's death in 1987, Dixie Bullock, a
real estate salesperson who had recently received her real estate
license and was employed by Edward Hardin, a broker, contacted
Pamela Saville to request permission to show Tract 4A to a
potential buyer. Bullock testified that Hardin obtained a
certificate of survey that included Tract 4A and sent it to the
potential buyer. Later Bullock decided to show the property to the
Cechovics whom Bullock knew were interested in river front
property.
On September 8 or 9, 1987, Cechovics met Bullock at her office
located in Hardin's brokerage firm in Livingston, Montana. The
three of them then viewed Tract 4A, which was bounded by the
Yellowstone River to the south, a county road to the north,
Grizzard's property to the west, and the Handls' property to the
east. Because the fence Hand1 had constructed on the west end of
the property was not located on the actual western boundary, a
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promontory that overlooked the Yellowstone River was located within
the western fence, but was actually part of Grizzard's land.
The parties disagree what was actually said by Bullock while
they toured the property.
Mr. Cechovic testified that while standing on the promontory
Bullock stated it would be a beautiful location for the
construction of the Cechovics home. He also testified that Bullock
showed them a yellow pin on the west property line and told him
that the pin was the west property line pin. Mr. Cechovic also
testified that Bullock showed him a pin on the eastern boundary
that divided the property from the Handls' property.
Mrs. Cechovic testified that while standing on the promontory
Bullock said, "[H]ow's this for a place to build your house?" Mrs.
Cechovic added that Bullock pointed to the yellow pin at the
southwest corner and then walked with Mr. Cechovic to the southeast
pin. As a result of Bullock's alleged statements, the Cechovics
stated they believed that the western fence was the boundary
between Tract 4A and Grizzard's property.
Bullock testified that she did not represent that the western
fence was the boundary and did not point out any survey pins.
Bullock did not recall the substance of any conversations that
occurred while on the promontory. However, she admitted that she
assumed the western fence was the boundary and that the promontory
was located on Tract 4A. She also recalled discussing the view
from the promontory. Finally, Bullock acknowledged that she had
not asked Saville about property boundaries.
After viewing the property, Bullock and the Cechovics returned
to Hardin's office. Hardin testified that Cechovics were concerned
about the location of the promontory so he, Bullock, and Mr.
Cechovic examined Certificate of Survey No. 491, which was a survey
that included Tract 4A. Bullock also testified that the Cechovics
were concerned about the property boundary.
Cechovics, however, testified that they were not concerned
about the boundaries because Bullock had pointed them out. Mr.
Cechovic did state that he obtained a copy of a portion of
Certificate of Survey No. 491 from the county clerk and recorder
and visited the property several times.
The Cechovics decided that they wanted to purchase the
property and made several offers. Finally, after other offers were
rejected, Hardin and Bullock prepared and mailed Saville a buy-sell
agreement which she signed on September 14, 1987.
Saville testified that after she learned the Cechovics were
interested she suggested to Bullock that they obtain a survey
before finalizing their purchase. Hardin and Bullock testified
that they told the Cechovics to obtain a survey if they were
uncertain about the boundaries. Cechovics denied that they were
told to obtain a survey. They did not have the property surveyed.
The transaction closed on approximately November 9, 1987.
Cechovics built their home near the location on the promontory that
6
Bullock allegedly represented was located on Tract 4A, and moved
into their new home by August 1988.
Sometime in the spring of 1991, Grizzard decided to sell that
part of his property which was adjacent to the Cechovics' property.
In order to divide his property, Grizzard had Survco survey his
land. The proper corner pin was located underneath some land in
the Cechovics' yard. The survey indicated that the true eastern
boundary of Grizzard's land was located to the east of the
Cechovics' home. Their home, in other words, was actually located
on Grizzard's property.
Mr. Cechovic testified that after he learned of the boundary
discrepancy, he was told that Grizzard would sue Cechovics if the
pending sale of Grizzard's property was interfered with by the
location of their home. They were also advised that John Tecca,
the purchaser, would not purchase the land if the problem was not
resolved. Cechovics, therefore, contacted Tecca and agreed to move
their home in consideration of payment by Tecca in the amount of
$10,000.
On July 12, 1991, Cechovics filed a complaint, and later an
amended complaint, in which they alleged that Bullock, Hardin,
Hardin and Associates, Inc., and Saville had negligently
misrepresented the boundary of the land they purchased. Saville
was named on the basis of her status as principal in an agency
relationship with Hardin and Bullock. Saville filed a cross-claim
against Hardin and Bullock for indemnification from liability for
Hardin and Bullock's conduct, and sought a statutory penalty, as
well as her attorney fees and costs.
Before the case came to trial, Hardin and Bullock moved for
summary judgment based on the statute of limitations. The District
Court denied that motion. Following a jury trial, the jury
returned a verdict in favor of the Cechovics and awarded damages in
the amount of $65,733.22. The jury also found the Cechovics
contributorily negligent and apportioned one percent of fault to
them, and 99 percent to Hardin and Bullock. The jury also awarded
Saville damages in an amount equal to three times Hardin and
Bullock's commission for the sale. The District Court entered its
judgment and an indemnification order in favor of Saville and
against Hardin and Bullock.
Hardin and Bullock filed motions for a new trial or a judgment
as a matter of law pursuant to Rules 50 and 59, M.R.Civ.P. Saville
filed a post-trial motion for an award of her attorney fees and
costs based on her successful cross-claim. The District Court
denied the parties' post-trial motions. Hardin and Bullock appeal
from the District Court's judgment and denial of their post-trial
motions. Saville appeals from the District Court's denial of her
post-trial motion.
ISSUE 1
Was there substantial evidence to support the jury's verdict
in favor of the Cechovics?
We will affirm the jury's verdict if there is substantial
credible evidence to support the verdict. Interstate Production Credit Ass’n
v.DeSuye (1991), 250 Mont. 320, 322-23, 820 P.2d 1285, 1287. This
Court's role is not to agree or disagree with a jury's verdict.
Silvisv. Hobbs (19921, 251 Mont. 407, 411, 824 P.2d 1013, 1015 (citing
Grz@lv. Faust (1983), 205 Mont. 372, 376, 668 P.2d 247, 249). Once
we conclude that substantial evidence supports the verdict, our
inquiry is complete. Silvis, 824 P.2d at 1015 (citing Grzfil, 668 P.2d
at 249). Substantial evidence has been defined as evidence a
reasonable mind might accept as true and can be based on weak and
conflicting evidence. Silvis, 824 P.2d at 1015 (citing Buskirkv. Nelson
(19911, 250 Mont. 92, 97, 818 P.2d 375, 378). When we determine
whether substantial evidence supports the jury's verdict, we review
the evidence in a light most favorable to the party who prevailed
at trial. If the evidence at trial conflicts, the jury's role is
to determine the weight and credibility of the evidence. silvis, 824
P.2d at 1015-16.
As Hardin and Bullock indicate, the elements of negligent
representation are set forth in Barrettv. Holland& Hurt (1992), 256
Mont. 101, 107, 845 P.2d 714, 717-18. There, we stated that a
claim for negligent misrepresentation requires proof of the
following elements:
1. the defendant made a representation as to a past 01^
existing material fact;
9
2. the representation must have been untrue;
3. regardless of [his or her] actual belief, the
defendant must have made the representation without any
reasonable ground for believing it to be true;
4. the representation must have been made with the
intent to induce the plaintiff to rely on it;
5. the plaintiff must have been unaware of the falsity
of the representation and he must have been justified in
relying upon the representation;
6. the plaintiff, as a result of his reliance, must
sustain damage.
Barrett, 845 P.2d at 717-18 (citing Kitchen Krafrers, Inc. v. Eastside Bank of
Montana (1990), 242 Mont. 155, 165, 789 P.2d 567, 573). Although
Hardin and Bullock do not concede that Bullock misrepresented the
property boundaries, the thrust of their argument is that a realtor
cannot be held negligent for failing to discover that an apparent
boundary was not the actual boundary. They focus on the third
element and contend that if Bullock made a misrepresentation, she
had reasonable grounds to believe it was true.
In StateBankofTownsendv.Maryann’s, Inc. (1983)) 204 Mont. 21, 33, 664
P.2d 295, 301, we recognized the definition of negligent
misrepresentation found at Restatement (Second) of Torts § 552 and
stated that it requires a showing of the failure to exercise the
care or competence of a reasonable person in obtaining or
communicating information. Relying on a comment to § 552, we added
that what is reasonable, as with other negligence claims, is
dependent upon the circumstances. Generally the level of care and
competence the recipient of information is entitled to expect is
10
determined in light of the circumstances and will vary, dependent
upon many factors. Finally, we stated, V [tlhe question is one for
the jury, unless the facts are so clear as to permit only one
conclusion." State Bank of Townsend, 664 P.2d at 302 (quoting 5 552
c m t . a).
In this case, the evidence relevant to the elements of
negligent misrepresentation was disputed. Mr. Cechovic testified
that Bullock indicated that the pin at the southern end of the
western fence marked the boundary. Bullock testified that she
assumed the pin was the accurate boundary and assumed that the
promontory was on Tract 4A. Saville testified that she supplied
written documentation to Bullock and suggested to Bullock that the
buyers have the property surveyed before finalizing the sale.
According to the Cechovics, Bullock did not convey this information
to them.
Testimony indicated that Hardin and Bullock obtained a
certificate of survey before Bullock showed the property to the
Cechovics. Although Hardin and Bullock claim that the Cechovics
should have discovered the discrepancy between the certificate of
survey and the fence, Hardin and Bullock either did not discover
the discrepancy themselves, or failed to indicate the discrepancy
to the Cechovics.
Finally, expert testimony indicated that fences are not
reliable as boundaries and that boundary lines are only determined
by surveys or from personal knowledge of an informed owner. David
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Viers, a real estate broker, testified that without accurate
information from a seller he would not represent a boundary to a
potential buyer. He added that a sales agent or broker has a duty
to disclose information and suggestions from the seller, e.g., that
a survey be obtained, to potential buyers. Tony Wastcoat, another
expert, testified that regulations require licensees to gather all
pertinent facts and prohibits misrepresentations. He added that if
he was showing rural property similar to the property in this case
that he would not rely on a fence as a boundary, even if it was
marked by a pin. He added that if the facts as stated in Cechovics
prior depositions were true that the Cechovics established a breach
of duty.
It was the jury's role to apply these facts to the
instructions. Interpreting the evidence in a light most favorable
to the Cechovics, we conclude that substantial evidence supports
the jury's verdict that Bullock did not have reasonable grounds to
believe her representations were true. Therefore, the third
element of negligent misrepresentation was established.
Hardin and Bullock next argue that the fifth element was not
satisfied because the Cechovics neither relied, nor could they
justifiably rely on, any alleged misrepresentation. They argue,
based on cases from other jurisdictions and cases which are
distinguishable, that a buyer cannot rely on an alleged
misrepresentation if the buyer undertakes an independent
investigation because the buyer is deemed to rely on his or her own
12
investigation. Finally, they contend that an independent investi-
gation clause, similar to the one in the contract in this case,
bars a claim based on negligent misrepresentation according to our
decisions in Lowev.Root (1975), 166 Mont. 150, 531 P.2d 674, and Lee
v. Stockmen’sNationalBank (1922), 63 Mont. 262, 286, 207 P. 623, 630.
We note that the issue of whether the Cechovics relied on, and
were reasonable in relying on, Bullock's alleged misrepresentation
was also a question for the jury. Based on the evidence set forth
above, and the elements of negligent misrepresentation, the jury
could have decided that the Cechovics relied on Bullock's
representations. We will not reweigh the evidence and second-guess
the jury's determination on this issue.
Next, we must determine whether the independent investigation
clause bars the Cechovics' claim. Although Lee did not involve the
duties of real estate licensees, Hardin and Bullock rely on
language from Lee which stated that if a party that claims to have
been deceived has done his or her own independent investigation, or
had the means to ascertain the truth, reliance on a representation,
however false, affords no ground for complaint. However, the point
of Lee was that the plaintiff could not recover for fraud or
misrepresentation for the defendant's failure to disclose facts
that the plaintiff knew to exist. Lee, 207 P. at 630.
Although the Cechovics did visit the property several times
before the sale, and did obtain a certificate of survey from the
13
county clerk and recorder's office, Mr. Cechovic testified that he
did not attempt to compare the plat to the boundaries because he
relied on Bullock's representations regarding the western boundary.
Nor did he have the property surveyed. Unlike Lee and Lowe, the
Cechovics did not undertake an independent investigation. As we
more recently stated, an "'independent investigation' clause does
not preclude justifiable reliance by a buyer on misrepresentations
of the seller and its realtor." Wagner v. Cutler (19881, 232 Mont.
332, 336, 757 P.2d 779, 782 (citing Parkhillv.Fuselier (19811, 194 Mont.
415, 419, 632 P.2d 1132, 1135. We added in Wagner that where a
plaintiff relied on a realtor's misrepresentations, the seller is
liable based on agency principles set forth in 5 28-10-602, MCA.
Wagner, 757 P.2d at 702.
Substantial evidence indicates that the Cechovics justifiably
relied on Bullock's representations regarding the property boundary
and that the promontory where the Cechovics ultimately built their
home was on the property Bullock represented for sale on behalf of
her principal. Mr. Cechovic stated that he did not conduct an
independent investigation because he was confident that Bullock's
representations were accurate.
Hardin and Bullock claim that the error was obvious because
the records indicate over 160 feet less river frontage than the
fence boundary would have indicated. However, they do not explain
how their oversight in this regard was reasonable if the
14
discrepancy was so obvious. In light of the fact that Hardin and
Bullock, who are licensed real estate professionals, did not
discover the error, it would be unjust to impose that requirement
on the Cechovics who claim they relied on Bullock's
representations.
We conclude that substantial evidence supports the jury's
determination that the Cechovics relied on, and were justified when
they relied on, Bullock's misrepresentations. Contrary to Hardin
and Bullock's assertions, and assertions made by the Montana
Association of Realtors, our decision does not mean that a broker
is responsible to have property surveyed in every case. We merely
conclude that, based on the evidence presented in this case, there
was an adequate factual basis for the jury's finding that these
defendants negligently misrepresented the boundary of the property
purchased by Bernard and June Cechovic.
ISSUE 2
Did the District Court abuse its discretion when it refused
Hardin and Bullock's proposed jury instructions?
The District Court has discretion when it decides how to
instruct the jury, taking into consideration the parties' theories,
and we will not overturn the court's decision absent an abuse of
discretion. Arnoldv.BoiseCascadeCorp. (1993), 259 Mont. 259, 267, 856
P.2d 217, 222. When we examine whether jury instructions were
properly given or refused, we consider the instructions in their
entirety, as well as in connection with the other instructions
15
given and the evidence at trial. Story v. City of Bozeman (1993) , 259
Mont. 207, 222, 856 P.2d 202, 211 (citing Fellerv. Fox (1989), 237
Mont. 150, 156, 772 P.2d 842, 846).
Hardin and Bullock contend that the District Court erred when
it failed to instruct the jury about the Cechovics' duty to
investigate, their actual investigation, and their right to rely on
representations of the boundary location. Their arguments are
similar to arguments made regarding the first issue and will not be
repeated at length.
Hardin and Bullock contend that the District Court erred when
it refused their proposed instructions H-8 and H-10. Proposed
instruction H-8 stated:
A purchaser of property is under a duty to make a
reasonable investigation of the property prior to
purchasing it.
Proposed instruction H-10 stated:
The buy/sell signed by the Plaintiffs contained an
independent investigation clause which reads as follows:
"Purchaser enters into this agreement in full
reliance upon his independent investigation and judgment.
Prior verbal representations or agreements do not modify
or affect this agreement."
If YOU find that the Plaintiffs had ample
opportunity to investigate the property for themselves,
they may not rely on any alleged misrepresentation of the
Defendants.
The District Court refused H-8 because it concluded that Battenv. Watts
Cycle&Marine, Inc. (1989), 240 Mont. 113, 783 P.2d 378, which was
cited by defendants as authority for that instruction, did not
stand for the principle stated in the instruction. The District
16
Court refused H-10 after concluding that it was a comment on the
evidence.
Hardin and Bullock claim that the court removed from the
jury's consideration the question of whether the Cechovics had the
opportunity to, or did engage in, an independent inquiry, and
whether they actually or reasonably relied on the alleged
misrepresentation in light of their own investigation. That
argument is belied by the facts that the jury was instructed
regarding contributory negligence; that issue was argued to the
jury; and, it found the Cechovics partially at fault for their own
damages.
We agree with the District Court's conclusion that Batten does
not stand for the proposition set forth in proposed instruction
H-8. in Batten, we recognized that the defects complained of were
discoverable upon a reasonable inspection and concluded that the
plaintiff failed to indicate sufficient facts that any
representations were false. Therefore, we concluded that the core
element of fraud, constructive fraud, and negligent
misrepresentation was missing. Batten, 783 P.2d at 381-82. Our
statement that the defects were discoverable was not the basis for
our holding in Batten since we concluded that factual misrepresenta-
tions were not proven. Even if Batten had stood for the proposition
for which it was cited by Hardin and Bullock, we have held that
language from this Court's opinions is not intended for use as jury
17
instructions. Hunsacker v. Bozeman Deaconess Foundation ( 19 7 8 ) , 17 9 Mont .
305, 333, 588 P.2d 493, 509. We conclude that the District Court
did not abuse its discretion when it refused proposed instruction
H-8.
Hardin and Bullock also claim that the District Court erred
when it refused their proposed instruction H-10. That instruction
contained a direct quote from the buy-sell agreement Cechovics
signed. Cechovics objected, and the District Court agreed, that
H-10 commented on the evidence. The District Court stated that
Hardin and Bullock were entitled to argue to the jury about the
contractual language in support of their contention that the
Cechovics should have inquired, but stated that it would be
improper for the court to comment on the evidence. We agree with
the District Court.
If the District Court allowed the instruction it would have
repeated and emphasized a direct quote from the buy-sell agreement
that was admitted as an exhibit at trial. To have done so would
have violated principles that prohibit a district court from
impermissible comments on the evidence. See Rule 614(b), M.R.Evid.,
Clarkv. Norris (1987), 226 Mont. 43, 53, 734 P.2d 182, 188 (stating
that the District Court cannot comment on the evidence).
We hold that the District Court did not abuse its discretion
when it refused Hardin and Bullock's proposed instructions H-8 and
H-10. After examining the instructions in their entirety, and as
18
a whole, we conclude that the District Court adequately explained
the legal principles advanced by the parties at trial.
ISSUE 3
Did the District Court err when it denied Hardin and Bullock's
motion for summary judgment based on the statute of limitations, or
when it declined to instruct the jury on that subject?
A summary judgment order is interlocutory, but is appealable
after a final judgment is rendered. Riley v. Curl (1981), 191 Mont.
128, 131, 622 P.2d 228, 230. Our standard of review of a district
court's summary judgment ruling is denovo. Spain-Morrow Ranch, Inc. v. West
(1994), 264 Mont. 441, 444, 872 P.2d 330, 331 (citing Minniev. Cityof
Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214).
Hardin and Bullock contend that the Cechovics' claim is barred
by the three-year statute of limitations for negligence which
should apply to this case. Section 27-2-204(l), MCA. They assert
that the elements necessary for a claim of negligent misrepresenta-
tion accrued in 1987 when the property was purchased, and since
suit was not filed until 1991, the District Court erred when it
denied their motion for summary judgment. In the alternative, they
claim that the statute of limitations raised a factual issue about
which the jury should have been instructed.
Cechovics respond that their claim was not barred by any
statute of limitations because the elements of their claim did not
occur until they were damaged in March 1991. They argue that the
two-year statute of limitations for fraud set forth at § 27-2-203,
19
MCA, applies, and the discovery rule tolls the statute until the
fraud or misrepresentation is discovered. Since the boundary
problem was not discovered until the spring of 1991, they contend
that their complaint was filed on time.
Neither party's position is entirely correct. We have, in the
past, applied the two-year statute where it was either directly, or
by inference, agreed upon by the parties. See Williams v. DeVinney
(19931, 259 Mont. 354, 362-63, 856 P.2d 546, 551-52; R.H. Grover, Inc.
v. FlynnIns. Co. (1989), 238 Mont. 278, 286, 777 P.2d 338, 343; Whitev.
Lobdell (1984), 208 Mont. 295, 306, 678 P.2d 637, 642. We have also
previously stated that in Montana an action for negligent
misrepresentation is an action for fraud. Bushnell v. Cook (1986) , 221
Mont. 296, 301, 718 P.2d 665, 668. Finally, as the Cechovics
indicate, the Federal District Court for the District of Montana
has stated that a claim for negligent misrepresentation is governed
by the two-year statute of limitations. Shupak v. New York Life Ins. Co.
(D. Mont. 1991), 780 F. Supp. 1328, 1333.
However, these statements in our previous cases are
inconsistent with our recognition that negligent misrepresentation
is similar to other negligence causes of action. See Barrett, 845
P.2d at 717-18. Negligent misrepresentation requires proof of
elements that are obviously different than the elements required to
prove fraud. Indeed, as we have stated, negligent misrepresen-
tation involves breach of a reasonable standard of care, not
20
intentional misrepresentation. Because negligent misrepresentation
is couched in terms of negligence, we conclude that the three-year
statute of limitations for negligence applies.
However, we also conclude that the District Court correctly
denied Hardin and Bullock's motion for summary judgment because
damages were not sustained in this case until 1991; a cause of
action does not accrue until all elements of the claim have
occurred; and the period of limitations begins to run when the
cause accrues. Section 27-2-102(l) (a) and (2), MCA. In Montana,
a claim or cause of action arises when all elements exist or have
occurred. We recently reiterated this principle and recognized
that in negligence cases the earliest date a cause of action could
accrue is when a person suffers damages from the alleged negligent
conduct. Uhlerv. Doak (Mont. 1994), 885 P.2d 1297, 1303, 51 St. Rep.
1315, 1319.
The Survco survey in 1991 revealed that the property on which
the Cechovics built their home in fact belonged to Grizzard. At
that point, the Cechovics were forced to move their home. Prior to
that time, Cechovics had no cause of action against Bullock. Uhler ,
885 P.2d at 1303. Their complaint was filed later in 1991, well
within the three-year statute of limitations.
We hold that the District Court was correct when it denied
Hardin and Bullock's motion for summary judgment based on the
statute of limitations.
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Hardin and Bullock claim, in the alternative, that the
District Court erred because it failed to instruct the jury
regarding the statute of limitations. They contend that when
evidence conflicts, the issue of whether a cause of action is
barred by a statute of limitations is a question for the jury.
&?gg V. %agg (1931), 90 Mont. 180, 300 P. 539; Hill v. Squibb & Sons
(1979), 181 Mont. 199, 592 P.2d 1383.
However, based on our previous discussion, we conclude that
there was no conflict in the evidence. We conclude that the
District Court did not abuse its discretion when it refused to give
Hardin and Bullock's proposed jury instructions regarding the
statute of limitations.
ISSUE 4
Was the jury's damage award supported by substantial credible
evidence?
The amount of damages awarded is properly left to the jury and
this Court will not substitute its judgment for the jury's unless
the amount awarded is so grossly out of proportion that it shocks
the conscience of this Court. Simchuck v. Angel Island Comm. Ass’n ( 19 9 2 ) ,
253 Mont. 221, 230, 833 P.2d 158, 163 (citing Gunning v. General Motors
Corp. (1989), 239 Mont. 104, 107, 779 P.2d 64, 66). In Simchuck, we
also reiterated the principle that this Court will review the
record in the light most favorable to the prevailing party to
determine if substantial evidence supports the jury's verdict.
Simchuck, 833 P.2d at 163 (citing Gunning, 779 P.2d at 67).
22
Hardin and Bullock contend that the jury improperly awarded
damages for lost river frontage based on testimony from Jim Burke,
the Cechovics' expert appraiser. They assert that the Cechovics
received the exact acreage and amount of river frontage that they
thought they were getting, based on the plat of the land they
reviewed, and therefore, have sustained no damages for lost river
frontage. Saville joins in this contention. We disagree.
In Montana, every person who suffers detriment from another's
unlawful act or omission may recover damages. Section 27-l-202,
MCA. Detriment is defined as a loss or harm suffered in person or
property. Section 27-l-201, MCA.
Cechovics point out that a primary attraction of the land was
Bullock's representation that the river front promontory was
included, and that there is no comparable location on the property
they eventually received. Jim Burke testified that the most
valuable feature of the property was the river frontage. He stated
that when parties purchase river front property they buy it for the
river frontage, not the acreage behind it. In addition, the jury
viewed the property pursuant to § 25-7-401, MCA. As a result, the
jury not only heard expert testimony, but observed the views and
quality of the Cechovics' homesite before and after they moved
their home.
Interpreting the evidence in a light most favorable to the
Cechovics, we conclude that substantial evidence supports the
23
jury's damage award and the award does not shock this Court's
conscience
ISSUE 5
Did the jury properly award Pamela Saville damages?
The jury's verdict and damage award in favor of Saville
against Hardin and Bullock must be upheld if supported by
substantial evidence. Simchuck, 833 P.2d at 163. Saville filed a
cross-claim against Hardin and Bullock in which she claimed damages
based on §§ 37-51-321, and -323(2), MCA. The District Court
instructed the jury on this issue and the jury awarded Saville
$7110, which was three times the amount of Hardin and Bullock's
commission for sale of her property.
Hardin and Bullock contend that the court erred when it
instructed the jury on this issue and, in the alternative, that the
jury's verdict and judgment are not supported by the evidence
They claim that Saville was not a "person aggrieved" pursuant to
§ 37-51-323(2), MCA, and that a real estate licensee is not liable
for honest or natural mistakes. Van&fingerv. Puppin (1978), 180 Mont
1, 13, 588 P.2d 988, 996.
Section 37-51-323(2), MCA, provides:
In case any person in a civil action is found guilty of
having received any money or the equivalent thereof as a
fee, commission, compensation, or profit by or in
consequence of a violation of any provision of this
chapter, he shall in addition be liable to a penalty of
not less than the amount of the sum of money so received
and not more than three times the sum so received, as may
be determined by the court, which oenaltv mav be
24
recovered in any court of competent jurisdiction by any
person aqqrieved.
(Emphasis added.) Violations which are forbidden are listed in
§ 37-51-321(l), MCA. The jury was instructed about the following
violations:
(b) making any false promises of a character likely
to influence, persuade, or induce;
iii 'offering real property for sale or lease
without the knowledge and consent of the owner or the
owner's authorized agent or on terms other than those
authorized by the owner or the owner's authorized agent
.
The District Court's Instruction No. 33 stated that if the jury
found that Bullock or Hardin engaged in conduct prohibited by
either of the above two enumerated subsections, then Saville was
entitled to recover a penalty of one to three times the commission
she paid to the realtors.
Hardin and Bullock claim that based on our decision in Van
Ettinger , Saville was not a "person aggrieved" pursuant to
5 37-51-323, MCA. In Van Ettinger, the buyer sued the broker who
represented to the buyer that an easement appurtenant with the
property for sale included the right to use a swimming pool.
However, prior to closing, the buyer discovered that the neighbor,
upon whose property the pool was located, refused to allow the
buyer to use the pool. The buyer filed suit against the broker for
fraud for representing the easement for use of the pool. This
Court held that the buyer could not recover because he had waived
his rights and had independent knowledge, before closing, which
25
precluded reliance on the broker's statements. Van Ettinger, 588 P. 2d
at 995. We also stated that the buyers were not aggrieved persons
under the Real Estate License Act because they failed to establish
that the easement did not exist and added that the buyers could not
recover because they closed the transaction with knowledge of
problems concerning the easement. Finally, we stated that while
the Real Estate License Act should be construed to lend maximum
efficacy to the enforcement of fiduciary relationships in the real
estate profession, penalty provisions would certainly envision
willful misconduct as opposed to a natural or honest mistake.
Van Ettinger , 588 P.Zd at 996.
Here, unlike Van Ettinger, the Cechovics did not know about the
misrepresentations before closing the transaction, and did not
waive their rights to rely on Bullock's statements. In addition,
the evidence in this case warrants the jury's finding that Bullock
breached fiduciary duties she owed to Saville, her principal.
Furthermore, we conclude that the Montana Real Estate License
Act envisions penalties without proof of willful misconduct. The
Act states that any person aggrieved may recover a statutory
penalty from the licensee. Section 37-51-323(2), MCA. Likewise,
that Act prohibits a licensee from making any false promises of a
character likely to influence, persuade, or induce a buyer and from
offering real property for sale without the knowledge and consent
of the owner or on terms other than those authorized by the owner.
Section 37-51-321, MCA. Evidence was introduced that a jury could
26
interpret to be violative of these provisions. Accordingly, the
District Court did not abuse its discretion when it instructed the
jury on this issue.
We also conclude that Saville was a person aggrieved under the
plain language of the statute. Hardin and Bullock are subject to
provisions of the Montana Real Estate License Act. We have held
that the Real Estate License Act provisions set a standard of
conduct that licensees must conform to, and a violation is
sufficient reason to deny a broker a commission. Lyle v. Moore
(1979), 183 Mont. 274, 599 P.2d 336; Carnellv. Watson (1978), 176 Mont.
344, 349, 578 P.2d 308, 311. Substantial evidence was introduced
to indicate that Hardin and Bullock violated the Real Estate
License Act and their duty to Saville. After their misrepresen-
tation was discovered, Cechovics' complaints named Saville as a
party who should be held liable for Bullock's alleged misrepresen-
tation. We have already concluded that the Cechovics' misrepresen-
tation claim was supported by substantial evidence and caused
Cechovics' damages. Therefore, we conclude that Saville was a
person aggrieved from a licensee's violation of provisions of the
Montana Real Estate License Act.
We also conclude that, contrary to our statement in VanEttinger,
in order to recover the statutory penalty, Saville was not required
to prove an intentional or malicious violation of the Act's
provisions. We affirm the District Court's decision to instruct
27
the jury regarding this issue and its judgment in accordance with
the jury's verdict.
CROSS-APPEAL ISSUE
Did the District Court err when it denied Pamela Saville's
motion for her attorney fees?
Saville filed a cross-claim against Hardin and Bullock in
which she requested her attorney fees. This Court has stated that
attorney fees are not normally recoverable unless a specific
statute or contractual provision provides for recovery of attorney
fees. Lanev.Smith (1992), 255 Mont. 218, 226, 841 P.2d 1143, 1148.
Saville has not indicated a statute which mandates that she recover
her attorney fees. She does, however, claim that a contractual
provision in the listing agreement she signed with Hardin and
Bullock provides for recovery of attorney fees. The relevant
language of the listing agreement states:
In the event of any suit or action on this contract, it
is agreed between us that the court, whether trial or
appellate, may allow the prevailing party therein such
sum as may be adjudged that party's reasonable attorney's
fees.
Use of the word "may" ordinarily renders a court's award of
attorney fees to a prevailing party discretionary. See Gaustad v. City
ofColumbus (19941, 265 Mont. 379, 383, 877 P.2d 470, 472. Here,
however, the District Court determined that, while Saville
prevailed, the action was not "on the contract;" on that basis, the
court concluded that the attorney fee provision was inapplicable.
We review a court's legal conclusions to determine whether they are
28
correct. InreMarriageofBarnard (19941, 264 Mont. 103, 106, 870 P.2d
91, 93.
Saville asserts that she is entitled to fees based on our
prior decision in Lane, 841 P.2d at 1148. In Lane, the underlying
claim was based on a breach of the listing agreement. On that
basis, the district court awarded attorney fees to the prevailing
party under a contract provision substantially similar to that at
issue here. We affirmed.
The District Court in this case rejected Saville's claim for
attorney fees because the action was not for breach of the listing
agreement. In her cross-claim, Saville did allege that she entered
a contract with Hardin and Bullock who breached fiduciary duties,
as well as statutory provisions of the Montana Real Estate License
Act, and requested statutory penalties, as well as her attorney
fees. However, the Cechovics' underlying claim was based on
misrepresentation. In her cross-claim, Saville pleaded that if the
Cechovics' allegations of misrepresentation were true, then Hardin
and Bullock breached duties they owed her. Her claims are
necessarily based on the Cechovics' claims which sound in tort, not
contract. Therefore, we affirm the District Court's decision not
to award Saville's attorney fees.
We affirm the judgment of the District Court. For the reasons
set forth above, we also conclude that the District Court did not
abuse its discretion when it denied Hardin and Bullock's motion for
29
a new trial and judgment as a matter of law pursuant to Rules 50
and 59, M.R.Civ.P.
We concur:
30