Morton v. Lanier

No. 01-305

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 214

JOANNE R. HANLEY MORTON, as Personal Representative
of the Estate of Robert W. Hanley, Deceased,

Plaintiff, Counterclaim Defendant,

v.

KEITH A. LANIER, SUE E. LANIER,

Defendants, Counterclaimants, Third Party Plaintiffs and
Respondents,

v.

JOANNE R. (JACOBSEN) HANLEY, Individually, and as
Personal Representative of the Estate of Robert Hanley, Deceased,

Third Party Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable Katherine R. Curtis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Kathleen O’Rourke Mullins, O’Rourke Mullins Law Offices, Missoula,
Montana

For Respondent:
John A. Mercer, Turnage, O’Neill & Mercer, Polson, Montana

Submitted on Briefs: February 21, 2002

Decided: September 19, 2002
Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 This action was initiated in the Twentieth Judicial District Court, Lake County,

by Robert Hanley (Robert) against his next-door neighbors, Keith and Sue Lanier

(Laniers). Robert sought to recover damages related to alleged breach of building

restrictions and interference with enjoyment of property. Laniers filed a counterclaim

alleging, among other claims, that Robert interfered with Laniers' right to a shared

access easement. Laniers filed similar third party claims against Robert's future wife,

Joanne Jacobsen (Joanne). Several pleadings were filed in this matter, including

Laniers' application for preliminary injunction against Robert and Joanne (hereinafter,

Hanleys).

¶2 On July 14, 1997, the District Court preliminarily enjoined Robert from interfering

with Laniers' enjoyment of their property in various respects, including displaying or

directing flood lights towards Laniers' residence. Following a bench trial on those issues left

unresolved by a previous order of partial summary judgment, the District Court entered its

Findings of Fact, Conclusions of Law and Judgment on March 27, 2001. The court

concluded that an amended plat signed by Robert and Laniers constituted an instrument in

writing sufficient to create a shared access easement for the benefit of both parties and

concluded that Hanleys interfered with Laniers' use of the shared easement. The court also

concluded that Hanleys interfered with Laniers' peaceable enjoyment of their property by

failing to redirect their flood lights as ordered under the preliminary injunction, and awarded

damages to Laniers. Joanne, acting as third party defendant and as representative for the

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estate of her late husband, Robert, appeals from the District Court's Order on Application for

Preliminary Injunction, entered July 14, 1997, and the court's Findings of Fact, Conclusions

of Law and Judgment, entered March 27, 2001. We affirm.

¶3 We restate the issues as follows:

1. Whether an undisputed and partially performed agreement between adjacent
property owners to relocate a common boundary and share an access easement, memorialized
by an amended plat and signed by both parties, violates the Statute of Frauds; and

2. Whether the District Court erred when it found Hanleys in contempt for violation
of the court's injunctive order and awarded damages to Laniers.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The properties at issue in this matter are two long narrow lake shore parcels on

Flathead Lake, near Dayton, Montana. The tracts slope down towards the lake at an

angle and are 100 feet at their widest point and approximately 725 feet in length.

Robert purchased his property (Lot 9) in 1979, which included an existing house and

carport. Laniers purchased their property (Lot 10) in 1970, but did not begin

constructing their home until the Spring of 1996. Prior to starting construction,

Laniers discovered that Robert's carport rested on the common boundary line between

the lots and that a rock wall extended beyond the boundary line onto Laniers' lot.

Subsequently, Laniers and Robert mutually agreed to relocate the common boundary

and also to share an access easement.

¶5 In the Spring of 1995, Steve Day (Day), a licensed surveyor, confirmed the boundary

encroachments and prepared an Amended Plat incorporating his recent survey. On the

Amended Plat, Day provided that the purposes for the survey were "to relocate the common

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boundaries between lots within a platted subdivision" and "to correct errors in construction

where a rock wall encroache[d] on neighboring property." Day also depicted on the

Amended Plat various roadways, including a road that ran down Laniers' lot along the

common boundary, angling onto Robert's property in a southeasterly direction, and then

continuing down towards the lake. Day labeled this road as a "20' SHARED ACCESS

EASEMENT.” On August 28, 1995, Laniers and Robert signed the Amended Plat and it was

recorded with the Lake County Clerk and Recorder on August 29, 1995.

¶6 Early in 1996, Laniers began the construction of their home, which was positioned in

part in front of Robert's house, but at a lower elevation. Robert was unhappy with the

placement of Laniers' new home, and relations between the parties quickly deteriorated.

Ultimately, Robert filed his Complaint on March 22, 1996, alleging claims of private

nuisance, easement of view by implication, breach of covenant, and negligence. Laniers filed

their Answer and Counterclaim on May 24, 1996, and asserted various defenses as well as

counterclaims including breach of covenant, trespass, and private nuisance. Leave was

subsequently given to join Joanne, who had lived with Robert since 1988 and throughout

these proceedings, as a third party defendant.

¶7 Laniers filed an Application for Order to Show Cause on July 29, 1996, seeking,

among other things, an injunction precluding Robert and others residing in his home from

directing blinking flood lights toward Laniers' home, and from directing flood lights at

Laniers' home at unreasonable hours. The court began the show cause hearing on Laniers'

application on August 7, 1996, and concluded it on September 30, 1996.

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¶8 On July 14, 1997, the District Court entered its Order on Application for Preliminary

Injunction and Rationale. The court preliminarily enjoined Robert from interfering with

Laniers' enjoyment of their property in several ways, including a prohibition from

"displaying on their residence blinking flood lights," and "directing flood lights from their

residence or boat toward [Laniers'] residence." Following entry of this order, relations

between the parties continued to deteriorate. Robert filed a Second Amended Complaint

on November 13, 1997. Joanne and Robert were married in the Fall of 1997, and near

that time, Robert was diagnosed with cancer and began medical treatment.

¶9 On February 20, 1998, Laniers filed a Motion for Partial Summary Judgment, directed

to all claims set forth in Robert's Second Amended Complaint. Later that evening, Robert

passed away. Ultimately, and after several more rounds of pleadings were filed, on October

19, 1999, the District Court granted Laniers' Motion for Partial Summary Judgment as to the

issues of private nuisance, easement by implication, negligence, breach of contract, and

attorney fees, but denied the motion for partial summary judgment as to the breach of

covenant claim. In this same order, the court ordered that Laniers' counterclaims and third

party complaint would be considered a third party pleading asserted against Joanne as an

individual and as personal representative of Robert Hanley's estate.

¶10 The District Court conducted a bench trial on May 22, 2000 on those claims left

unresolved by summary judgment. The court heard testimony from Keith and Sue Lanier,

Joanne Hanley, a friend of Hanleys who was familiar with the property, Day, a real estate

appraiser, and several guests who had visited Laniers' residence. Nearly a year later, on

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March 27, 2001, the District Court entered its Findings of Fact, Conclusions of Law and

Judgment.

¶11 Among other findings, the District Court concluded, based in part upon Robert's

deposition testimony, that one of the purposes of the Amended Plat was the creation of an

easement agreement with Laniers. The court went on to conclude that Hanleys interfered

with Laniers' use of the shared easement. The court also concluded that Hanleys engaged in

deliberate and conscious interference with Laniers' peaceable enjoyment of their property by

failing to redirect their flood lights in accordance with a previous court order and

accordingly, found them in contempt. The court found that Hanleys' failure to comply with

the injunction and Robert's willful and wrongful blocking of the shared easement interfered

with Laniers' peaceable enjoyment of their property and justified an award of damages in the

sum of $5,000 in favor of Laniers. Joanne appeals from the District Court's July 14, 1997

Order on Preliminary Injunction, and the March 27, 2001 Findings of Fact, Conclusions of

Law and Judgment.

STANDARD OF REVIEW

¶12 This Court reviews the findings of a trial court sitting without a jury to

determine if the court's findings are clearly erroneous. Guthrie v. Hardy, 2001 MT 122,

¶ 24, 305 Mont. 367, ¶ 24, 28 P.3d 467, ¶ 24 (citing Rule 52(a), M.R.Civ.P.). A district

court's findings are clearly erroneous if they are not supported by substantial credible

evidence, if the trial court has misapprehended the effect of the evidence, or if a review

of the record leaves this Court with the definite and firm conviction that a mistake has

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been committed. Guthrie, ¶ 24 (citing Engel v. Gampp, 2000 MT 17, ¶ 31, 298 Mont.

116, ¶ 31, 993 P.2d 701, ¶ 31). Additionally, in determining whether the trial court's

findings are supported by substantial credible evidence, this Court must view the

evidence in the light most favorable to the prevailing party. Guthrie, ¶ 24 (citation

omitted).

¶13 We review a district court's conclusions of law to determine whether those

conclusions are correct. Guthrie, ¶ 24 (citation omitted). See also, Steer, Inc. v. Department

of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. Finally, we review a

judgment of contempt to determine whether there is substantial evidence to support it. Marks

v. First Judicial Dist. Court (1989), 239 Mont. 428, 430, 781 P.2d 249, 250 (citation

omitted).

DISCUSSION

Issue 1

¶14 Does an undisputed and partially performed agreement between adjacent
property owners to relocate a common boundary and share an access easement,
memorialized by an amended plat and signed by both parties, violate the Statute of
Frauds?

¶15 In its Findings of Fact, Conclusions of Law and Judgment, the District Court

concluded that the Amended Plat constituted an instrument in writing sufficient to satisfy the

Statute of Frauds. Joanne appeals the court's ruling, arguing the Amended Plat did not

contain words of conveyance and thus failed to properly memorialize the agreement to create

a shared access easement. Laniers respond that only an instrument in writing is required to

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create an easement, not a conveyance in writing, and that the intended effect of the shared

easement is evident on the Amended Plat and from Robert's deposition testimony.

¶16 The Statute of Frauds is codified at § 28-2-903, MCA, and § 70-20-101, MCA.

Section 28-2-903(1)(d), MCA, provides that "an agreement . . . for the sale of real property or

of an interest therein," is "invalid unless the same or some note or memorandum thereof is in

writing and subscribed by the party to be charged." Similarly, § 70-20-101, MCA, provides

that:

No estate or interest in real property . . . can be created, granted,
assigned, surrendered, or declared otherwise than by operation of law or a
conveyance or other instrument in writing, subscribed by the party creating,
granting, assigning, surrendering, or declaring it or by his lawful agent
thereunto authorized by writing.
¶17 The question as framed by the parties is therefore whether the memorialized Amended

Plat was a sufficient “instrument in writing” to comply with the Statute of Frauds. Although

the parties have focused their arguments on this question, we find it unnecessary under the

facts presented here to reach it, as we conclude that, regardless of the answer to that question,

the Statute of Frauds would not in any event invalidate the parties' agreement to create a

reciprocal easement. We so conclude for two reasons.

¶18 First, both parties admitted there was an agreement to establish a shared access

easement. This Court has repeatedly taken the position that we "will not allow the statute of

frauds, the object of which is to prevent fraud, to be used to accomplish fraudulent purposes."

Hayes v. Hartelius (1985), 215 Mont. 391, 396, 697 P.2d 1349, 1353 (citing Ryckman v.

Wildwood, Inc. (1982), 197 Mont. 154, 641 P.2d 467; Hillstrom v. Gosnay (1980), 188 Mont.

388, 614 P.2d 466; and Farmers Elevator Co. of Reserve v. Anderson (1976), 170 Mont. 175,

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552 P.2d 63). In Hayes, the record established that the parties made an oral agreement for

the purchase of a home and we held that "it would be a fraud on the defendant to allow

plaintiffs to admit to the contract, and then allow them to avoid its obligations by asserting

the statute of frauds." Hayes, 215 Mont. at 396, 697 P.2d at 1353.

¶19 Here, The District Court was presented with undisputed testimony regarding the

circumstances leading to the easement agreement and preparation and filing of the Amended

Plat. During the bench trial, Keith Lanier (Keith) explained that he approached Robert after

discovering Robert's carport and rock wall encroached on the common boundary. Keith

further explained that the two of them reached an agreement that Laniers would adjust the

property line, thus slightly increasing the size of Robert's lot to accommodate the

encroachments, and in turn the parties would share the access road. In his deposition taken in

August, 1996, Robert testified that the Amended Plat acted as both "an easement agreement

and also a boundary realignment at the same time," and when asked if he thought the

Amended Plat was an easement agreement, Robert responded, "Yes." Robert also explained,

"That was the agreement that they would -- gave [sic] us an easement. We gave them an

easement here (indicating) and they would redo the boundary lines so I didn't have a problem

with my carport." The District Court was thus presented with undisputed testimony that

Robert and Laniers agreed to create a reciprocal easement. As we concluded in Hayes, we

will not allow Joanne to now deny the existence of the undisputed agreement to establish a

shared access easement.

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¶20 A second reason the Statute of Frauds does not render the shared easement agreement

invalid can be found in the doctrine of part performance. Section 70-20-102, MCA, provides

exceptions to the Statute of Frauds, and states in relevant part, "Section 70-20-101 must not

be construed to . . . abridge the power of any court to compel the specific performance of an

agreement, in case of part performance thereof." See § 70-20-102(3), MCA. See also, 7

Thompson on Real Property, Thomas Edition, § 60.03(a)(6)(i) (David A. Thomas et al. eds.,

1994) ("Some states have created an exception to the Statute of Frauds ‘and have allowed the

creation of easements by oral contract where the contract has been relied upon and acted

upon.’ ") (citation omitted). This Court has long recognized the doctrine of part

performance as an exception to the Statute of Frauds. Hayes, 215 Mont. at 396-97, 697

P.2d at 1353 (citations omitted) (the withholding of property from the market and

relinquishing possession for four years, and allowing plaintiffs to claim the tax

deduction on interest were sufficient acts to constitute part performance). The

sufficiency of acts to constitute part performance can be decided as a matter of law.

Quirin v. Weinberg (1992), 252 Mont. 386, 393, 830 P.2d 537, 541 (citing Schwedes v.

Romain (1978), 179 Mont. 466, 472, 587 P.2d 388, 391). For an act to be sufficient to

constitute part performance, it " 'must be unequivocally referable to the contract.' "

Quirin, 252 Mont. at 393, 830 P.2d at 541 (quoting Schwedes, 179 Mont. at 472, 587 P.2d

at 391).

¶21 Here, Robert and Keith both testified that they agreed that Laniers would adjust the

common boundary if the parties could agree to the shared access easement. Following that

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agreement, the parties signed the Amended Plat, which evidenced both the adjusted boundary

and the shared access easement. Moreover, both parties utilized the access road after

executing the Amended Plat, and Robert received the benefit of an expanded boundary line to

his property. In short, the parties performed their obligations under their agreement. Part

performance occurred, at least for a time. Thus, the Statute of Frauds could not defeat the

parties' agreement to share the access easement.

¶22 Based upon the foregoing reasoning, and under the factual circumstances presented

here, we conclude the District Court did not err when it determined that a shared access

easement was created. Although the District Court's conclusion was based on its

determination that the Amended Plat constituted a written instrument under the Statute of

Frauds, and not upon the grounds discussed here, we will uphold a court ruling if it is correct,

regardless of the reasons given below for the result. See Debcon, Inc. v. City of Glasgow,

2001 MT 124, ¶ 22, 305 Mont. 391, ¶ 22, 28 P.3d 478, ¶ 22 (citing Clark v. Eagle Systems,

Inc. (1996), 279 Mont. 279, 287-88, 927 P.2d 995, 1000).

Issue 2

¶23 Did the District Court err when it found Hanleys in contempt for violation of the
court's injunctive order and awarded damages to Laniers?

¶24 On July 14, 1997, the District Court entered its order on Laniers' Application for

Preliminary Injunction and Rationale, where it preliminarily enjoined Robert from:

(1) displaying on their residence blinking flood lights; (2)
directing flood lights from their residence or boat toward [Laniers']
residence; (3) posting on his property, directed at [Laniers'] residence,
signs containing fighting words . . . ; (4) stalking and staring into the

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 windows of [Laniers'] residence; and (5) speaking "fighting" words to
[Laniers] or their guests.

Relevant to this appeal, the court included the following rationale in its July 14, 1997

preliminary injunction:

The evidence from all parties supports that [Robert] has
approximately 6 bright lights on the deck of his residence that shine on
to [sic] the Lanier house. [Robert] testified that these lights have been
in the same location and at the same angle for approximately 15 years,
and that they are used to illuminate his property below his house for
security reasons. He testified that at one point he installed photocells so
the lights would automatically turn on and off according to the
surrounding natural light, and the photocells malfunctioned, resulting in
the lights blinking. At the time of the hearing he had removed the
photocells and manually operated the lights, but he testified that he
intended to reinstall the photocells which might result in more blinking.
....
The [District] Court further finds that flood lights directed at
[Laniers'] residence in the middle of the night, and particularly blinking
flood lights that illuminate [Laniers'] residence, are not necessary to
achieve the legitimate security purposes offered by [Robert], and would
unreasonably interfere with [Laniers'] peaceable enjoyment of their
property. However, [Robert] is entitled to illuminate his property for
security purposes. Therefore, it is appropriate to enjoin [Robert] from
directing flood lights at [Laniers'] residence and also to enjoin him from
operating blinking flood lights that illuminate [Laniers'] residence.

¶25 On March 27, 2001, following the bench trial, the court entered its Findings of

Fact, Conclusions of Law and Judgment, wherein it found that Hanleys' deck lights no

longer blinked and there had been no further incidents of spotlights shining up from

the lake. However, the court also found that Hanleys had not redirected the flood

lights as directed by the court's July 14, 1997 order, and found them in contempt. The

court noted that, "by and large, the flood lights on the Hanley property illuminate the

Lanier property much more than the Hanley property, and that they are on all the time,

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even when there is no one present at the Hanley residence." Although the court noted

Joanne was not subject to the court's preliminary injunctive order, it also found that

Joanne "obviously chose to continue directing the lights in a way previously found by

the [c]ourt to be a nuisance and an interference with [Laniers'] peaceable enjoyment of

their property."

¶26 Joanne contends the District Court erred when it found Hanleys in contempt

for violating the July 14, 1997 injunctive order, asserting that the court enlarged upon

the injunction when it found the Hanleys failed to redirect the flood lights away from

Laniers' residence and property, since the order only enjoined Robert from directing

lights toward Lanier's "residence." Joanne also contends that the court's 1997 order

was not directed to her at all.

¶27 In reviewing an appeal from an order of contempt, this Court's standard of

review is whether substantial evidence supports the judgment of contempt. See

Marks, 239 Mont. at 430, 781 P.2d at 250. During the trial, Joanne admitted that

neither she, nor Robert, had redirected their deck lights following the court's order and

also testified that the lights were sometimes left on all night or when she was not

home. Keith Lanier explained that while the blinking lights had ceased following the

court's 1997 injunction, the other lights remained unchanged and continued to

illuminate Laniers' property, not the Hanley property. Several witnesses testified

about the nature of the lights, describing them as spot lights, and explaining that the

lights were aimed directly at the Lanier residence, particularly the front entryway.

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¶28 Upon review of the preliminary injunction and the evidence presented during

the bench trial, we conclude the court did not err in finding Hanleys in contempt for

failing to comply with the injunction as to their deck lights. We also conclude that

there was no relevant distinction between Laniers' property and residence as asserted

by Joanne, given the close proximity between the houses and the court's previous

order and rationale. Therefore, we conclude that the District Court did not err in

assessing damages based on Hanleys' failure to comply with the preliminary

injunction. Finally, we conclude that Joanne's contention that she is exempt from the

provisions of the preliminary injunction is without merit.

¶29 Upon her substitution for Robert, her late husband, Joanne assumed

responsibility as personal representative of Robert's estate for any allegations

presented against Robert in Laniers' counterclaims, which included his failure to

comply with the court's injunctive order. Moreover, under § 27-19-105(4), MCA, an

order granting an injunction is "binding only upon the parties to the action; their

officers, agents, employees, and attorneys; and those persons in active concert or

participation with them who receive actual notice of the order by personal service or

otherwise" (emphasis added). In their Answer to Laniers' Second Amended

Counterclaim, filed November 6, 1997, both Robert and Joanne acknowledged the

court's preliminary injunction and admitted that it remained in effect. Joanne

also testified that she had received and read a copy of the order. Based on the

record before us, we conclude that Joanne participated and acted with her

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husband Robert in failing to follow the court's directives as to the deck lights,

and therefore conclude that Joanne was not exempt from the court's order

prohibiting Hanleys' deck lights from being directed towards Laniers' residence.

¶30 Accordingly, the District Court's Judgment is affirmed.

/S/ PATRICIA COTTER

We Concur:

/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JIM RICE

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