Cechovic v. Hardin & Associates, Inc.
| Decision Date | 24 August 1995 |
| Docket Number | No. 94-028,94-028 |
| Citation | 902 P.2d 520,52 St.Rep. 854,273 Mont. 104 |
| Court | Montana Supreme Court |
| Parties | Bernard F. CECHOVIC and June C. Cechovic, Plaintiffs and Respondents, v. 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. |
Terry F. Schaplow, Bozeman, James H. Goetz and Robert K. Baldwin, Goetz, Madden & Dunn, Bozeman, for Hardin & Assoc., W.E. Hardin, and Bullock.
Brenda R. Cole and Kent R. Douglass, Swandal, Douglass, Frazier & Cole, Livingston, for Springall.
Calvin L. Braaksma, Landoe, Brown, Planalp & Braaksma, Bozeman, for Cechovics.
John K. Tabaracci, Sullivan, Tabaracci, & O'Rourke-Mullins, Missoula, for amicus Montana Association of Realtors.
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 We rephrase the issues on appeal as follows:
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
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?
In 1977, James Grizzard divided a parcel of land located in Park County and sold Tract 4, a 20-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 10-acre parcels--an east tract and a west tract. In 1980, the Savilles sold the east Tract, 4B, to Jim and Gwen Handl and kept the west Tract, 4A. Sometime in the early 1980s, Mr. Saville informed Handl that he could graze horses on Tract 4A if he would put up a temporary fence to keep them off the neighboring property.
Handl spoke to Grizzard about building a fence, and Grizzard agreed to allow Handl to construct the fence. Grizzard indicated the approximate location of the boundary pins that divided his land from the Savilles. Handl 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 Handl 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 Handl had constructed on the west end of the property was not located on the actual western boundary, a 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 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...
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