Fid. Nat'l Title Ins. Co. v. Doubletree Partners, L.P., Case No. 4:08–CV–00243.

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Writing for the CourtAMOS L. MAZZANT
Citation866 F.Supp.2d 604
PartiesFIDELITY NATIONAL TITLE INSURANCE COMPANY, successor by merger to Lawyers Title Insurance Corporation v. DOUBLETREE PARTNERS, L.P.
Decision Date05 October 2011
Docket NumberCase No. 4:08–CV–00243.

866 F.Supp.2d 604

FIDELITY NATIONAL TITLE INSURANCE COMPANY, successor by merger to Lawyers Title Insurance Corporation
v.
DOUBLETREE PARTNERS, L.P.

Case No. 4:08–CV–00243.

United States District Court,
E.D. Texas,
Sherman Division.

Oct. 5, 2011.


[866 F.Supp.2d 609]


Mark Talbot Davenport, Amanda Sotak, Amber M. Grand, Donald Colleluori, Figari & Davenport, LLP, Dallas, TX, for Fidelity National Title Insurance Company.

J. Edwin Martin, Attorney at Law, Dallas, TX, Christopher A. Kalis, The Law Office of Christopher Kalis, Plano, TX, for Doubletree Partners, L.P.


MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, United States Magistrate Judge.

Pending before the Court is Doubletree Partners' First Motion for Partial Summary Judgment and Brief in Support (Dkt. # 117), Lawyers Title Insurance Corporation's Motion for Summary Judgment on Contract Claims and Brief in Support (Dkt. # 118), Lawyers Title Insurance Corporation's Motion for Summary Judgment on Extra–Contractual Claims and Brief in Support (Dkt. # 119), Lawyers Title Insurance Corporation's Motion to Exclude Expert Testimony of Mark McPherson and Brief in Support (Dkt. # 121), Lawyers Title Insurance Corporation's Motion to Exclude Expert Testimony of George “Mick” Ulakovic (Dkt. # 122), Doubletree Partners' Second Motion for Partial Summary Judgment and Brief in Support (Dkt. # 125), Lawyers Title Insurance Corporation's Motion to Exclude Expert Testimony of Peter J. Phalon (Dkt. # 127), Lawyers Title Insurance Corporation's Objections to and Motion to Strike Defendant's Summary Judgment Evidence and Brief in Support (Dkt. # 135), Lawyers Title Insurance Corporation's Second Objections to and Motion to Strike Defendant's Summary Judgment Evidence and Brief in Support (Dkt. # 156), and Doubletree Partners' Motion to Strike and Brief in Support (Dkt. # 157).

Having considered the relevant pleadings, the responses thereto, and the oral arguments in a hearing held before the undersigned on September 13 and 14, 2011 (Dkt. # 164), the Court finds the following:

BACKGROUND1

The background facts are generally uncontested by the parties. Doubletree Partners, L.P. (“Doubletree”) is a limited partnership formed by Fred Placke (“Placke”) for the purpose of purchasing and developing the property made the subject of this case (Dkt. # 123, Tab 58 at 1056). The property at issue consists of approximately thirty-six (36) acres (the “Property”) located in the City of Highland Village (the “City”) (Dkt. # 123, Tab 16 at 161). At the time of purchase, Doubletree intended to develop the Property into a luxury retirement community for seniors, consisting of approximately eighteen (18) multi-story buildings with multiple units (Dkt. # 123, Tab 58 at 1061). The Property development would also entail various landscaping, building a community center, and other amenities (Dkt. # 123, Tab 36 at 510).

On or about April 7, 2006, Doubletree closed on its purchase of the Property with the seller, Duncan Duvall (“Duvall”), for a purchase price of $3.45 million (Dkt. # 123, Tab 15 at 149). In conjunction with the purchase of the Property, Doubletree and Duvall escrowed the sales contracts for the

[866 F.Supp.2d 610]

Property with Lawyers Title Insurance Corporation (“Lawyers Title”), acting through their agent American Title Company,2 to close the transactions (Dkt. # 123, Tab 7 at 90). Doubletree purchased a title insurance policy from Lawyers Title, and paid an additional premium of $2,540.70 to obtain added survey coverage (Dkt. # 117–8 at 28).

The Property is encumbered by various easements and restrictions; however, only two encumbrances are relevant to the issues before the Court. First, an easement granted in 1956 (the “Flowage Easement”), gives the United States of America the right to flood, overflow, and submerge areas of the Property that lie below 537 feet in elevation. (Dkt. # 117–7, Exhibit 8 at 20; Dkt. # 123, Tab 3). The Flowage Easement prohibits construction of both structures intended for human habitation located below the 537–foot elevation, and any other structures below the 537–foot elevation, without written consent. Id. There are approximately nine (9) acres of the southern portion of the Property affected by the Flowage Easement (Dkt. # 117–8, Exhibit 122 at 52; Dkt. # 123, Tab 2).

Second, portions of the Property are also within the 100–year flood plain (the “Flood Plain”), as identified on various flood insurance rate maps and maps created by the City of Highland Village (Dkt. # 123, Tab 4; Dkt. # 123, Tab 5 at 34). Development of portions of the Property within the Flood Plain, which is described as land below an elevation of 537 feet, is prohibited by the City of Highland Village without a building permit (Dkt. # 123, Tab 59 at 1135–1136). The City requires an applicant to submit a development plan, which is then sent to the Federal Emergency Management Agency (“FEMA”) for approval. Id. The development plan must be approved by FEMA prior to obtaining City approval for a building permit. Id. Land within the Flood Plain can be developed by using fill dirt to raise the elevation above 537 feet of elevation; however, an offsetting amount of land volume, or valley storage, must be set aside to replace the land volume removed from the Flood Plain (Dkt. # 123, Tab 59 at 1137–1139; Dkt. # 157–7 at 16–19). The parties agree that a substantial amount of the land located within the Flowage Easement is also located within the Flood Plain, but disagree about the implications of these restrictions for development, and the value of the Property after considering the restrictions.

Lawyers Title issued four (4) title commitments to Doubletree or its representatives insuring title to the Property (Dkt. # 117–7 at 49–100; Dkt. # 123, Tab 8–11). The final title commitment, effective on March 21, 2006, listed all the encumbrances, including the Flowage Easement, as exceptions from coverage in Schedule B (Dkt. # 117–7 at 77–83; Dkt. # 123, Tab 11). At the closing on or about April 7, 2006, Doubletree signed a sales contract with Duvall, the vesting deed, and a lease back agreement with Duvall (Dkt. # 123, Tab 7, Tab 16, Tab 17). These documents all reference the same list of encumbrances, including the Flowage Easement, excepted from coverage on the final commitment provided to Doubletree. Id. In addition, the documents indicate that survey coverage was purchased by Doubletree, and that the coverage would

[866 F.Supp.2d 611]

be reflected in the title policy issued to Doubletree. Id.

On April 18, 2006, Lawyers Title provided Doubletree with its title insurance policy (the “Original Policy”) (Dkt. # 117–8 at 29–38; Dkt. # 123, Tab 12). A software error in the computer system caused the Original Policy to print without listing the encumbrances as Schedule B exceptions to coverage, and failed to include the agreed-upon modification for the survey coverage purchased by Doubletree (Dkt. # 123, Tab 12). In October of 2006, Doubletree submitted a lost policy affidavit to Lawyers Title, indicating that it could not locate the Original Policy (Dkt. # 117–7 at 26; Dkt. # 123, Tab 20). The Original Policy was re-printed and sent to Doubletree 3 (Dkt. # 117–8 at 39–45; Dkt. # 123, Tab 21). The software error again caused the policy to print without the encumbrances listed as Schedule B exceptions, and without the agreed-upon modifications for survey coverage. Id.

In August 2007, Doubletree submitted a request to the City of Highland Village for a zoning change for the Property to accommodate its senior retirement community (Dkt. # 123, Tab 22). During the process of obtaining the appropriate zoning, Doubletree learned of a discrepancy between the actual location of the Flowage Easement, and the “approximate location” depicted on the survey 4 (Dkt. # 123, Tab 5 at 11). The original survey of the Property obtained by Doubletree indicated the “approximate location” of the Flowage Easement, which covered a small portion of the Property on the southern edge (Dkt. # 117–8 at 46). In reliance on that survey, Doubletree designated that area for landscaping, or “green space,” in an effort to comply with the restrictions on building within the Flowage Easement (Dkt. # 117–8 at 48; Dkt. # 117–8 at 55). In finding the “approximate location” of the Flowage Easement, Mark Paine (“Paine”), the surveyor, relied on flood insurance rate maps (“FIRM”) (Dkt. # 123, Tab 60 at 1151). Doubletree later discovered that the original survey did not depict the totality of the area encumbered by the Flowage Easement (Dkt. # 117–8 at 52). Doubletree filed a complaint against Paine with the Texas Board of Professional Land Surveying (Dkt. # 123, Tab 5). The Board determined that while Paine could have been more cautious when describing which document he used to locate the “approximate location” of the Flowage Easement on the survey, Paine did not violate any professional standards while conducting the survey (Dkt. # 123, Tab 24). The additional area encumbered by the Flowage Easement that was not revealed on the original survey is the subject of the present dispute between the parties.

In March of 2008, Doubletree filed a claim on the title insurance policy with Lawyers Title (Dkt. # 123, Tab 27). The parties dispute whether the basis of the claim made by Doubletree was for the discrepancy in the actual location and “approximate location” of the Flowage Easement identified on the survey, or the eighteen (18) encumbrances not listed as Schedule B exceptions to coverage. Relevant portions of the claim are as follows:

Schedule B to the Owner Policy, however, includes no listed exceptions. In reliance

[866 F.Supp.2d 612]

on the insured title and pursuant to the Owner Policy, Doubletree closed on the Insured Property, paid $3,450,000.00 as the purchase price, and began plans to improve and develop the Insured Property ...

Most notable of these [exceptions] is a blanket easement across the entire Insured Property, as well as a...

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5 practice notes
  • Patek v. Alfaro (In re Primera Energy, LLC), CASE NO. 15–51396–CAG
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • 29 Diciembre 2017
    ...entering into the contract; and (5) the reliance caused Plaintiffs' injury. Fidelity Nat. Title Ins. Co. v. Doubletree Partners, L.P. , 866 F.Supp.2d 604, 632 (E.D. Tex. 2011) (citing Tex. Bus. & Com. Code § 27.01(a) ). As stated herein, the Court has found that Plaintiffs have proven the f......
  • Ass'n of Taxicab Operators v. City of Dall., Civil Action No. 3:10–CV–769–K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • 28 Marzo 2012
    ...1983 claim would also be proper. However, the Court has given due consideration to ATO's claim of preemption under the Supremacy Clause [866 F.Supp.2d 604]and has found that ATO's claims fail in toto. The Court need not address other statutes highlighted by ATO in its Verified Complaint and......
  • Patek v. Alfaro (In re Primera Energy, LLC), CASE NO. 15-51396-CAG
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • 29 Septiembre 2016
    ...related or a means of facilitating a conveyance of real estate.’ " Fidelity Nat. Title Ins. Co. v. Doubletree Partners, L.P. , 866 F.Supp.2d 604, 632 (E.D. Tex. 2011) (quoting Windsor Village, Ltd. v. Stewart Title Ins. Co. , 2011 WL 61848, at *5 (Tex. App.–Houston [14th Dist.] March 17, 20......
  • Dac Surgical Partners P.A. v. United Healthcare Servs., Inc., CIVIL ACTION NO. 4:11-CV-1355
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 8 Diciembre 2016
    ...Schwartz v. Gregg, 2010 WL 2977479, at *3-7 (Tex. App. Jul. 28, 2010) and Fidelity Nat'l Title Ins. Co. v. Doubletree Partners, L.P., 866 F. Supp. 2d 604, 631 (E.D. Tex. 2011). As was discussed above,Page 17 the DAC plaintiffs have pointed to no evidence of a genuine issue of material fact ......
  • Request a trial to view additional results
5 cases
  • Patek v. Alfaro (In re Primera Energy, LLC), CASE NO. 15–51396–CAG
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • 29 Diciembre 2017
    ...entering into the contract; and (5) the reliance caused Plaintiffs' injury. Fidelity Nat. Title Ins. Co. v. Doubletree Partners, L.P. , 866 F.Supp.2d 604, 632 (E.D. Tex. 2011) (citing Tex. Bus. & Com. Code § 27.01(a) ). As stated herein, the Court has found that Plaintiffs have proven the f......
  • Ass'n of Taxicab Operators v. City of Dall., Civil Action No. 3:10–CV–769–K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • 28 Marzo 2012
    ...1983 claim would also be proper. However, the Court has given due consideration to ATO's claim of preemption under the Supremacy Clause [866 F.Supp.2d 604]and has found that ATO's claims fail in toto. The Court need not address other statutes highlighted by ATO in its Verified Complaint and......
  • Patek v. Alfaro (In re Primera Energy, LLC), CASE NO. 15-51396-CAG
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • 29 Septiembre 2016
    ...related or a means of facilitating a conveyance of real estate.’ " Fidelity Nat. Title Ins. Co. v. Doubletree Partners, L.P. , 866 F.Supp.2d 604, 632 (E.D. Tex. 2011) (quoting Windsor Village, Ltd. v. Stewart Title Ins. Co. , 2011 WL 61848, at *5 (Tex. App.–Houston [14th Dist.] March 17, 20......
  • Dac Surgical Partners P.A. v. United Healthcare Servs., Inc., CIVIL ACTION NO. 4:11-CV-1355
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 8 Diciembre 2016
    ...Schwartz v. Gregg, 2010 WL 2977479, at *3-7 (Tex. App. Jul. 28, 2010) and Fidelity Nat'l Title Ins. Co. v. Doubletree Partners, L.P., 866 F. Supp. 2d 604, 631 (E.D. Tex. 2011). As was discussed above,Page 17 the DAC plaintiffs have pointed to no evidence of a genuine issue of material fact ......
  • Request a trial to view additional results

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