Ackerson v. Ackerson
| Decision Date | 31 January 1990 |
| Docket Number | No. 88-4166,88-4166 |
| Citation | 895 F.2d 1416 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Truman ACKERSON, Plaintiff-Appellant, v. Edward ACKERSON; George Ackerson; Allin Cheetham; and County of Chouteau, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before SCHROEDER, BOOCHEVER and BEEZER, Circuit Judges.
This is a diversity case arising out of a longstanding dispute between two brothers. In this case there is much to be said for what was described at oral argument as a Montana aphorism, "let sleeping dogs lie." Nevertheless, we hold that the district court should have granted appellant Truman Ackerson's motion for JNOV on the issue of slander of title, and we remand for additional proceedings as to damages on that claim only. We affirm in all other respects.
The dispute centers on Thelen Place, a parcel of land located in Chouteau County, Montana, originally belonging to Ruth Ackerson, mother to plaintiff-appellant Truman and defendant-appellee Edward Ackerson. Prior to her death in 1983 Ruth apparently gave Thelen Place to Truman. Litigation resolved ownership of the property in Truman's favor.
At some time Edward came into possession of three quitclaim deeds which were blank except for the signature of Truman. Truman had executed these deeds sometime in 1940 before departing for military service in World War II. The parties dispute how Edward came into possession of the deeds; Truman claims Edward found them among his mother's possessions, and Edward claims his mother gave them to him following his son's "rescue" of his mother from maltreatment at the hands of Truman. During this time Truman was negotiating with one Bob Bailey to sell Thelen Place to Bailey.
Cheetham is the part-time county attorney for Chouteau County; he is also a private attorney. In 1984 Cheetham was approached by Edward Ackerson and his son George, given the blank deeds, and asked to complete them by inserting George Ackerson as grantee and inserting the legal description of Thelen Place into the deed. Cheetham filled in at least one deed, dated it, and deposited it at the Clerk and Recorder's Office on May 16, 1984. The Clerk called to his attention that the deed was unacknowledged but Cheetham requested that she file it anyway, and she did so. Edward contends that George also asked Cheetham to file some affidavits prepared by attorney Richard Martin, explaining the circumstances under which Ruth gave Edward the blank deeds. This Cheetham did not do. Edward claims that Cheetham told him the deed could not cloud the title to Thelen Place because it was not a legal document.
Sometime after recordation of the deed, Bailey backed out of the deal to buy Thelen Place. Bailey testified he did so because he feared the recorded deed clouded the title. Truman further claims that the property's value has since then dramatically depreciated and its value remains below what he could have received for it had he sold it to Bailey.
Thereafter, Cheetham filed a quiet title action on behalf of Edward and George to establish the validity of the deed that he had recorded and to establish George as the owner of Thelen Place. Truman filed a cross-claim against George and a third-party complaint against Edward. That action was dismissed without prejudice, following which Truman filed the present action. Truman brought suit against Edward, Cheetham, and Chouteau County, alleging six counts, including negligence on the part of Cheetham in recording an unacknowledged deed, negligence of Chouteau County in failing to supervise Cheetham and the Recorder's Office employees, slander of title to Thelen Place, civil conspiracy among the defendants to deprive Truman of Thelen Place, intentional infliction of emotional distress, and fraud. Edward and Cheetham each cross-claimed against the other.
The district court granted summary judgment against Truman on the counts of Cheetham's negligence, the County's negligence, and emotional distress. Truman settled with Cheetham during trial on the counts of slander of title, civil conspiracy, and fraud. As part of the settlement, Truman agreed not to appeal the summary judgment dismissal of the emotional distress count against Cheetham. The County moved for and was granted summary judgment in its favor on all counts. Truman moved for a directed verdict on the issue of slander of title and tortious interference with a contract. The case went to the jury with Edward as the sole defendant. The jury found in favor of Edward on all counts, and Truman requested a judgment notwithstanding the verdict on those issues for which he had earlier moved for directed verdict.
Truman appeals the grant of summary judgment in favor of Cheetham and the County on the issue of negligence, the conduct of the trial that led to the verdict for Edward, and the district court's refusal to enter judgment for Truman as a matter of law.
Truman claims that Cheetham as Edward's attorney owed Truman as well as Edward a legal duty of adequate care in the performance of Cheetham's actions as Edward's lawyer. This claim has no merit. While the Montana courts have never passed on this issue, the parties do not dispute the general rule that attorneys owe no duty of care to adverse parties in litigation. Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 509, 254 Cal.Rptr. 336, 348, 47 Cal.3d 863 (1989) (in bank). Truman relies upon cases holding that attorneys may owe duties to third parties who are intended beneficiaries of the attorney's services. E.g. Heyer v. Flaig, 74 Cal.Rptr. 225, 228, 449 P.2d 161, 164, 70 Cal.2d 223, 228 (1969) (); Morales v. Field, DeGoff, Huppert & MacGowan, 160 Cal.Rptr. 239, 243-44, 99 Cal.App.3d 307, 314-15 (1979) (). Even if Montana recognized these cases, Truman could not explain how he could conceivably have been a "beneficiary" of Cheetham's filing of the deed against him.
Truman claims that Cheetham's negligence can be attributed to the County because Cheetham is the County's agent. Truman further claims that the County was negligent in failing to supervise Cheetham's activities and those of the Recorder's office in recording an unacknowledged deed. This claim has no merit. As discussed above, Cheetham owes no duty to Truman for which Cheetham could be said to be negligent. Moreover, there is no indication that Cheetham was acting as county attorney and not as a private attorney when he filed the deed, or that his status as county attorney caused the recorder to file a document she would not otherwise have filed. The deputy Recorder filed an affidavit in which she states that Cheetham's status as county attorney made no difference to her decision to file the deed. Against this affidavit we have only Truman's unsupported allegation that Cheetham was acting as county attorney, which is insufficient. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In Montana, a county attorney is not supervised by the county board of supervisors, but by the state Attorney General. See Mont.Code Ann. Sec. 2-15-501(5). Further, it was not negligent for the County Recorder to accept the unacknowledged deed for recording, so no negligence exists to impute to the County. The arrangement of the statutes supports the defendants' argument that the statute upon which Truman relies, Mont.Code Ann. Sec. 70-21-203, which provides that an instrument must be acknowledged before being recorded, is not intended to guide the County Recorder in her duties, but rather to establish a requirement for document filers before their documents will be considered recorded. The group of statutes spelling out the duties of the County Recorder, which are codified in a different section from the statute cited by Truman, demonstrate that the County Recorder is required to accept all documents presented for recordation. Mont.Code Ann. Sec. 7-4-2613(1). The statute explicitly requires acknowledgments of leases and abstracts, but only of those two items. Id. Deeds are mentioned as documents which must be recorded, but no requirement of acknowledgment is given for them. See id. Where the statutes impose a requirement on the Recorder before recordation of deeds, such requirements are explicit. See, e.g., Mont.Code Ann. Sec. 7-4-2618 ().
In Montana, a cause of action lies for "slander of title." Slander of title is a tort requiring proof of four elements: (1) the uttering and publication of the slanderous words by the defendant; (2) the falsity of the words; (3) malice; and, (4) special damages. First Security Bank of Bozeman v. Tholkes, 169 Mont. 422, 427, 547 P.2d 1328, 1331 (1976). There is no question that the deed Cheetham recorded published false words. However, Edward argues that there was no malice in his actions because he was attempting to carry out his mother's donative intent. Moreover, Edward argues Truman suffered no special damages as Bailey backed out of the deal because of a change in the Federal Crop Program, and not as a result of the cloud on Truman's title...
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Ackerson v. Ackerson
...jury found for Edward on both claims. Truman appealed and this court affirmed as to all issues save one. Ackerson v. Ackerson, 895 F.2d 1416 (9th Cir.1990) (unpublished disposition). We reversed the judgment in favor of Edward on the slander of title claim, ruling that the district court sh......