Mularoni v. Bing

• Decision Date: 29 October 2001
• Docket Number: No. 00-766.,00-766.
• Citation: 34 P.3d 497,306 Mont. 405,2001 MT 215
• Parties: Humbert MULARONI, Sr., Mary Jo Mularoni, Humbert Mularoni, Jr., Edward Mularoni, Dean Mularoni, Marc Mularoni, and Peter Mularoni, Plaintiffs/Appellants, v. Douglas K. BING and Jodean M. Bing, Defendants/Respondents.
• Court: Montana Supreme Court

34 P.3d 497

2001 MT 215

306 Mont. 405

Humbert MULARONI, Sr., Mary Jo Mularoni, Humbert Mularoni, Jr., Edward Mularoni, Dean Mularoni, Marc Mularoni, and Peter Mularoni, Plaintiffs/Appellants, v. Douglas K. BING and Jodean M. Bing, Defendants/Respondents.

No. 00-766.

Supreme Court of Montana.

Submitted on Briefs April 19, 2001.

Decided October 29, 2001.

Christopher K. Williams, Bozeman, MT, For Appellants.

Allan H. Baris, Moore, O'Connell & Refling, Bozeman, MT, For Respondents.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Plaintiffs, Humbert Mularoni, Jr., Edward Mularoni, Dean Mularoni, Marc Mularoni, and Peter Mularoni (Mularonis), filed a complaint in the Eighteenth Judicial District Court in Gallatin County, seeking a declaratory judgment limiting the scope of Douglas and Jodean Bing's (Bings) easement across Mularonis' property. Bings counterclaimed for a declaration that the easement was a general access easement. The District Court entered judgment in favor of Bings, finding the easement was a general access easement and Bings were entitled to construct a road across it. The District Court awarded some costs to Bings, including the court cost associated with Bings' motion to compel, but concluded Mularonis were not responsible for the costs of the Humbert Mularoni Sr. deposition. Mularonis appeal the District Court's conclusions of law and judgment, while Bings cross-appeal the court's denial of the Mularoni deposition costs, and the District Court's failure to award attorney's fees and expenses associated with the motion to compel.

¶ 2 We restate the issues as follows:

1. Whether the District Court erred in construing the scope of the easement as a general access easement; and

2. Whether the District Court erred in determining which of the claimed costs and fees should be awarded to the prevailing party.

We affirm in part, and reverse and remand in part.

FACTUAL BACKGROUND

¶ 3 Neither party disputes the District Court's findings of fact. The tracts of land at issue in this matter are located in Gallatin County, approximately five miles north of Big Sky. The tracts are adjacent to one another, and are identified as Tract 1 (divided into Tracts 1-A and 1-B) and Tract A-1, with Tract A-1 situated directly south of Tract 1. Bings, the Defendants, currently own Tracts 1-A and 1-B (Tract 1), while Mularonis, the Plaintiffs, own Tract A-1. The easement at issue in this matter is located on Tract A-1, and is adjacent to Tract 1-B. A history of the lands' acquisition and subdivision is important to the resolution of the issues before us.

¶ 4 In 1986, Alvard and Venice Linford (Linfords) owned both Tracts 1 and A-1. In the fall of that year, Bings expressed an interest in purchasing a piece of Linfords' Tract 1 along with the buildings (house and guest house) located on the property. Because a portion of the guest house was located on Tract A-1, boundary realignment was necessary to ensure the building rested completely within the boundaries of Tract 1. In addition, Linfords agreed to divide Tract 1, (approximately a ten acre area) into two pieces, so Bings could purchase the southern three acres, which included the buildings. Bings reserved an option to buy the remaining acres of Tract 1 (i.e., Tract 1-A), and Linfords granted Bings right of first refusal on Tract A-1.

¶ 5 In October of 1986, Linfords retained Ray Center (Center), a registered land surveyor, to prepare certificates of survey (COSs) in preparation for the sale to Bings. Center simultaneously prepared two COSs (1348 and 1348A), which were signed by Center and Linfords on October 28, 1986, and recorded January 28, 1987. Center realigned the boundary between adjacent Tracts 1 and A-1, as evidenced by COS 1348. Center also subdivided Tract 1 into Tracts 1-A (northern portion) and 1-B (southern portion), as evidenced by COS 1348A. Center created the necessary easements for the subdivision, and noted them on each respective COS. We now describe the formation and creation of each COS.

¶ 6 As illustrated by COS 1348, (the boundary realignment between Tracts 1 and A-1), Center designated three easements affecting the tracts. First, Center drew in freehand an "EXISTING DRIVEWAY," that ran northward across Tract A-1 to the southern boundary of Tract 1. Second, near the middle of Tract A-1, Center designated a 90' × 140' rectangular easement and labeled it "EASEMENT FOR TRACT 1 ALTERNATIVE DRAINFIELD." Center testified that his intention in designating this easement was to create a replacement drainfield if the seepage pit, which was located closer to the guest house, failed.

¶ 7 The third easement Center designated was trapezoid-shaped and adjoined the northern boundary of the drainfield easement and the southern boundary of Tract 1. Center labeled this easement: "EASEMENT FOR ACCESS WEST OF GUEST HOUSE/GARAGE AND TO SEEPAGE PIT AND ALTERNATIVE DRAINFIELD FOR TRACT 1." The "EXISTING DRIVEWAY" easement connected to Tract 1 at the western triangular portion of the trapezoid easement. In addition to the maps of the tracts and easements, Center included the following granting clause on page two of COS 1348, under the heading "EASEMENT FOR ACCESS AND DRAINFIELD PURPOSES:"

The owners of Tract 1, Certificate of Survey No. 1348, Gallatin County, Montana, their heirs, and assigns, are hereby granted an easement for access and drainfield construction, maintenance, and replacement, as shown on the accompanying Certificate of Survey, over and across Tract A-1, Certificate of Survey No. 1348, Gallatin County, Montana.

This clause was signed by Linfords and Center on October 28, 1986. Center testified that in designating the trapezoid easement, he intended to create only access to the drainfield on Tract A-1, not to create a general access easement across Tract A-1 to Tracts 1-B or 1-A. It is this trapezoid easement which gave rise to this litigation.

¶ 8 Simultaneous to realigning Tracts 1 and A-1, Center subdivided Tract 1 into 1-A (northern half) and 1-B (southern half), which allowed Bings to purchase the three-acre portion of Tract 1 and the buildings (i.e., Tract 1-B). For this subdivision, Center prepared COS 1348A, and also provided the appropriate easements for the new tracts. On COS 1348A, Center designated a 30-foot road easement which appeared to connect with the "EXISTING DRIVEWAY" and the trapezoid easement, as noted on COS 1348. This 30-foot road easement extended east along the southern boundary of Tract 1-B, and then ran north across Tract 1-B to Tract 1-A. Center labeled this easement, "30' ROAD EASEMENT FOR FUTURE ROAD ACCESS TO TRACT 1-A." Center included the previously created easements from COS 1348 on this second COS. On COS 1348A, he labeled the rectangular easement as "EASEMENT FOR ALTERNATIVE DRAINFIELD FOR TRACT 1-B." His label for the trapezoid easement differed from COS 1348, and simply read, "ACCESS EASEMENT." Thus, after Tract 1 was subdivided, Tract A-1, to the south, was burdened by three easements: (a) the existing road/driveway; (b) the rectangular alternative drainfield site; and (c) the trapezoid shaped easement. [SEE APPENDIX A for drawing of the tracts.]

¶ 9 On October 29, 1986, Linfords conveyed Tract 1-B to Bings by warranty deed, which described the land conveyed as "Tract 1-B of Certificate of Survey 1348A." In reviewing the deed at closing, Douglas Bing studied COS 1348A, and felt comfortable that the trapezoid easement was a general access easement as he had negotiated with Linfords. When Bings purchased Tract 1-B, they had an option to purchase Tract 1-A to the north, and also a right of first refusal on Tract A-1 to the south.

¶ 10 In 1987, Linfords found a buyer for Tract A-1. Concerned about having a stranger for a neighbor, Bings contacted a family friend, John Malpeli, about purchasing Tract A-1 if Bings exercised their right of first refusal. Malpeli agreed, and on September 1, 1987, Linfords conveyed Tract A-1 to Bings by warranty deed, which described the property as "Tract A-1 of Certificate of Survey 1348." Bings then transferred Tract A-1 to Malpeli on September 2, 1987.

¶ 11 Two years later, Linfords conveyed Tract 1-A to Bings on October 10, 1989. The warranty deed described the property as "Tract 1-A of Certificate of Survey 1348A."

¶ 12 On December 31, 1990, Malpeli conveyed Tract A-1 to the Mularonis, the Plaintiffs and Appellants here. In this warranty deed, the land description refers to "Tract A-1 of Certificate of Survey 1348."

¶ 13 The deeds associated with conveying these tracts involved various references to COS 1348 and COS 1348A; however, none of the deeds specifically referred to the trapezoid easement on Tract A-1. All the deeds referred to the "existing driveway" easement that runs from the southern portion of A-1, north to the southern boundary of Tract 1-B, using language that noted this roadway easement was to be jointly used by the owners of Tracts 1-A and 1-B of COS 1348A and the owners of Tract A-1 of COS 1348. In addition, all three deeds conveying Tract A-1 (Linfords to Bings; Bings to Malpeli; and Malpeli to Mularoni) contained a covenant prohibiting construction of a residence on the hill in the northwest portion of Tract A-1.

¶ 14 In the spring of 1998, Bings informed Mularonis they intended to utilize the "access easement," as depicted on COS 1348A. Bings wanted access to an area on the northern part of their property, and felt the steep grade of the area where the existing driveway meets the 30' road easement on Tract 1-B prevented location of an access road at that position. Bings instead planned to build an access road connecting the existing driveway to the southern boundary of Tract 1-B by building across the trapezoid easement. The Mularonis objected and informed Bings they did not have authorization to do any work on Tract A-1.

¶ 15 In May, 1998, Bings constructed an access road across the trapezoid-shaped easement that ran from...