BACHE v OWENS
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No. 96-413 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 LLOYD BACHE and VIRGINIA Plaintiffs MARK OWENS, d/b/a BACHE, and Respondents, 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, Heckathorn & Phillips, For Murphy, Robinson, Kalispell, Montana Respondents: Lon J. Dale, Milodragovich, & Binney, Missoula, Montana Submitted Steinbrenner on Briefs: Decided: Filed: November 7, 1996 December 10, 1996 Justice Terry The action in N. Trieweiler respondents, against the the District Lincoln they filed a Lloyd to alleged agreement entered Court and denied Owens' judgment of for the erred when District granted it issue judgment summary in on is motion favor of Owens buy-sell other relief. of Bathes, for the District whether the easement Owens appeals the for an the favor judgment. an in favor. of and filed Owens Logging, their in Court. District encroaching We affirm Owens' Mark Judicial parties on appeal in d/b/a judgment Court. denied summary the the Bathe, performance summary for of Virginia established between motion The dispositive from specific granted opinion Nineteenth Owens been into The District the enjoin counterclaim and Mark Owens, for had the Bathe appellant, Court County which delivered the Court. District summary the Court judgment, and Bathes. FACTUAL BACKGROUND The Bathes owned approximately County. In April for sale the Pursuant the to Bathes the 1988, and entered purchase Agreement promised they 34 acres of to 2.42 Sell into of property an agreement acres of and Purchase Bathes with their ("the Owens property. Agreement"), to: [C]onvey the real property by Warranty Deed, free liens and encumbrances except those described title insurance section of this agreement. The title in Lincoln insurance section of the Agreement of in provided all the that would: [Flurnish Buyer Title Insurance committing to insure merchantable title to the real property in the free all liens Buyer's name, and clear of and encumbrances except: encumbrances hereinabove mentioned, 2 the ordinances, in apparent zoning reservations easements no others. Subsequently, with regard to building and use restrictions, federal patents, beneficial utility or of record, easements of record, and a Preliminary the Title property, Insurance and provided Policy was issued 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 1657 6, 1988, ("COS No. COS No. retained (1) the executed a COS No. filed Lincoln the Certificate County two easements along thirty-foot-wide Bathes; Bathes describes On July Bathes with a by the day, The deed 1657") 1657 depicts property: same the and the 8, 1988, a Warranty 1991 property he 1992, and purchased contractor, Mike establishing the easement the twenty-four feet removal obstruction of of the in easement, of favor of Owens. 1657. transaction, examined site. filed Owens' their Bathes' an action and the cos and No. they building the reference a building He However, building on his 1657 to building prior to misidentified only six the the feet from encroached upon easement. in the and building, easement. makes constructed As a result, the also On that COS No. their Bathes. and constructed boundary. The Bathes the from building which Owens Helberg, boundary, property Deed of the 1657. During for Deed finalized border easement. and references parties Contract utility Number and Recorder. roadway private property, the Clerk the westerly (2) a public executed of Survey District contract Owens contended 3 They Court. remedies that sought for the no easement existed, and asserted breach of contract, slander of title, counterclaims a matter access the in Bathes judgment. law, that reservation the Rule the in Bathe I, valid to issues. ,judgment easement Court granted summary remaining Owens from create to partial an summary conclude, created as a matter an easement its by the denied judgment issues. the 267 Mont. in Bathes favor of again for the moved They requested with their created the of case remaining dismissal moved the the a 817. of for Owens' summary existence of an the Agreement. The summary judgment, and Bathes. for summary injunctive relief easement, 4 in 883 P.2d that provisions motion On appeal, of for favor to remanded Owens also claimed express Owens' 279, a motion judgment. He We then in pursuant documents determination filed favor. final appeal. sale Bathes. judgment as of land the Bathes summary purposes for interfering for judgment parties' of Subsequently, the the contradicts District Court its favor the his motion partial for by summary in not that, Bathes. granted Bachev. Owens (19941, counterclaims did documents Court On remand, documents own certified that District title, He contended sale M.R.Civ.P., in quiet favor. and easement the District land Court we held the the their Bathes, 54(b), of deceit, judgment. sale their asked The District of land filed They summary favor and performance, damages. partial law, of easement The of for specific fraud and punitive Owens moved as estoppel, for and to judgment require to on enjoin him to remove his building. attorney fees. certified its They also The District judgment requested Court granted an the award Bathes' of their and motion, as final. DISCUSSION Did the summary District Court judgment, and err when granted it denied judgment summary Owens' in motion favor for of the Bathes? judgment provides, in is relevant Summary governed by Rule 56(c), M.R.Civ.P., which 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 economy through summary of judgment controversy P.2d it is well elimination not is to encourage of any unnecessary a substitute for Reavesv.Reinbold entitled to established to the demonstrate BankofMssoula that judgment show a complete D Agostinov.Swanson defeat judgment trial (1980), if judicial trial. However, a genuine 189 Mont. 284, factual 288, 615 898. is required is exists. 896, It the summary (1990), the that a genuine absence of factual 44, party law. of any genuine 435, 442, party nonmoving 241 Mont. moving a matter 240 Mont. motion, (19901, as the must issue 46, must exists. 785 P.2d that To do this, it factual issues. 784 P.2d set prove forth 919, facts 924. is To which O Bagvv.FirstInterstate 190, 191. on appeal, it denied Owens maintains counterclaims. his that On that summary judgment for summary judgment should, instead, address each will, therefore, the Bathes the District Court basis, he be reversed, should be granted of his erred in when contends that and his that favor. asserted on mention counterclaims We the appeal. SPECIFIC The Agreement Bathes' easement. contract which among the parties Owens maintains establishes subsequent creation modification. This was not PERFORMANCE the of the that terms mutual consent. entitled to specific Relevant to our explicitly the Agreement the is performance he of the a binding and that the constitutes invalid and was not Therefore, is sale, easement he asserts, by consideration, parties' not of Bathes' modification, supported did because a product contends strict a it of the he is that terms of the Agreement the case doctrine, consideration which of Owens' argument is the law of 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, 637 120, 779 P.2d 489, 492). In conveyance: Bathe I, (1) (citing we Zavarelliv.Might stated the that there Agreement to 6 (19891, were Sell 239 Mont. four and instruments Purchase 124, of ("the Agreement"); (4) the Certificate interpreted a valid those easement 883 P.2d at Warranty Deed; of (2) Survey Number four in favor favor in is, BacheI. established on Owens' requiring the Bathes. for No. that of We at they to contrary the the of Agreement, Agreement, that attack decision, of a valid cannot to a collateral the easement now be compelled, forfeit that with to Owens' in their by an order assertions, the Bathes interest. complied nor on our the terms there of the was not was one necessary. Bathes promised to: of all in the insurance section of the Agreement provided that 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, building and use restrictions, zoning ordinances, in federal patents, beneficial utility reservations easements apparent or of record, easements of record, and no others. (Emphasis 286, added.) The title Bathes and established 267 Mont. [Clonvey the real property by Warranty Deed, free liens and encumbrances except those described title insurance section of this aqreement. (Emphasis Deed; 1657"). they BacheI, essence, As a result Bathes Therefore, Pursuant in performance, Furthermore, a modification ("COS and held the existence property; specific Agreement. the Contract 822. holding successfully of the 1657 instruments, Owens ' counterclaim prior (3) added.) the Subsequently, required It a Preliminary by the provided Agreement, Title Insurance was issued with Policy, regard which to the was property. 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 prior to filed COS No. 1657, which closing, and in accordance Insurance Policy. Both the Warranty reference COS No. Bathes was, of 1657. the Preliminary with Deed and the the As a result, "of their easement, Title Contract easement in for favor of and Owens had constructive record," Deed the notice existence. its in fact, contains BREACH OF CONTRACT Owens maintains of the Agreement, that and parties' contract. specific performance, the have, This Bathes did therefore, comply breached counterclaim and fails not is for with the subsumed the terms by the the estopped of the claim for same reasons. are terms ESTOPPEL Owens that the knowledge he changed result, the We begin estoppel is our not evidence." P.2d 1006. would position analysis favored convincing 1002, his the they that Bathes that He contends easement. with asserts with Bathes for the concealed be acted the from upon, claiming material and an facts that, as a worse. principle and will be sustained Duchamv.Tuma (1994), that, only 265 Mont. u [elquitable upon 436, clear 441, and 877 The follows six required elements of equitable estoppel are as : There must be conduct, acts, language or silence 1) the estopped party amounting to a representation concealment of facts; by or these facts must be known to the estopped party the time of the conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to the estopped party; at 2) the truth concernins other oartv claiminq time they were acted 3) the the these facts the benefit upon; must be unknown of the estoooel to at 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; 4) the 5) and conduct the other 6) manner as to worse. Ducham , 265 Mont. Owens has support party change at did be relied to 877 P.2d present reference at clear elements. not upon by the must in fact act the other party's 441-42, failed these of commitment must upon it position 1006 in Bathes' the party; such a for the (emphasis and convincing Although the other added). evidence preliminary easement, it in title 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 issuance Lincoln Bathes of title County Agreement, complied the 1657 created these documents with insurance, Clerk provision they filed Deed, the COS No. Contract easement in favor of conveyance, when, prior for of Deed, the the with the held, the Bathes. Owens had constructive 9 to 1657 As we have previously and Recorder. Warranty a valid this and COS No. Based notice on of the easement, and his estoppel claim necessarily fails as a matter of law. FRAUD & DECEIT Owens' failure This of claim of the claim law, the 1657, As easement to to the time that of existence of deceitfully of result, by operation documents, the we held the interest was in is not easement. as a matter They easement of the had no affirmative virtue of the duty conveyancing now assert which was fraudulently entitled to decision a in and title. that case, and title, They do not Their and his his In right, property. easement. quiet BacheI. legitimate on Owens' title, the TITLE he is have have a valid that Bathes. that easement COS was "of notice cannot by our on Owens' reference was a fact Bathes their a cloud alleged Owens by the resolved Bathes' constructive by record. easement the an easement. Deed both the had was, Owens claims that their for The Bathes law. which suppressed claim of the and fails, closing, QUIET This upon claim, Contract Owens of public Finally, based existence estoppel Deed and the a disclose the is same reason. and at record." and deceit to disclose similar The Warranty No. fraud Bathes is for for easement, claim fails claim therefore, as a matter of law. We conclude and that Accordingly, the that Bathes we hold there are that are no genuine entitled the issues to judgment as District Court did 10 of material a matter not err fact, of law. when it denied Owens' judgment motion in favor The judgment for summary judgment, of the Bathes. of the District Court We concur: Chief and granted Jkstice Justices 11 is affirmed. summary Justice W. William I dissent Court for Owens' of Bathe. claim as as of that the time property "free section there of when. Despite the date as to contemplated section of Agreement and clear of all the fact that of the closing, whether, in easements as to there signing of record is the the intent (1994), Johnson v. Nyhart closing. (1995), 269 Mont. 12 The title Bathes would except speaks of easements is, "of record" as easement was "of record" as a genuine issue of the parties only 1988 date of the as of the April 281, the "of When there 275, convey Agreement, the becomes a question 268 Mont. original and encumbrances as opposed to an easement which was recorded two days before a those described that that time; Bathes' would except provided liens in a valid by the agreement." When the Agreement is an ambiguity easement does not preclude Bathes this Contract created contemplated and encumbrances the of record. record," Dettman instruments that The upon our holding a valid however, provided liens of free easements contract, these claim. Agreement, created of closing, insurance title Agreement Survey, that which of all title insurance convey the Buy/Sell such an easement was not Agreement the that of contract attacks collateral of The fact Buy/Sell fact claims I in which we held easement of to the breach Deed and Certificate favor in dissenting. regard with treats in Bathe Leaphart, for is 379, 387, on July an ambiguity the jury. 886 P.2d material 416, in Klawitter 420; 6th, the v. see also _- 889 P.2d 1170, 1174. I would reverse remand for Justices dissent. trial Karla the summary judgment on that as to breach of contract and issue. M. Gray and James C. Nelson 13 join in the foregoing
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