Pichon v. L. J. Broekemeier, Inc.

• Decision Date: 05 October 1978
• Docket Number: No. 12541,12541
• Citation: 99 Idaho 598,586 P.2d 1042
• Parties: Mary PICHON, Plaintiff-Appellant, v. L. J. BROEKEMEIER, INC., a corporation, Colwell Mortgage Trust, a corporation, Sawtooth Title Co., Inc., a corporation, and Lawyers Title Insurance Corp., a corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1042

586 P.2d 1042

99 Idaho 598

Mary PICHON, Plaintiff-Appellant, v. L. J. BROEKEMEIER, INC., a corporation, Colwell Mortgage Trust, a corporation, Sawtooth Title Co., Inc., a corporation, and Lawyers Title Insurance Corp., a corporation, Defendants-Respondents.

No. 12541.

Supreme Court of Idaho.

Oct. 5, 1978.

Rehearings Denied Dec. 5, 1978.

Stanley D. Crow, Boise, for plaintiff-appellant.

Bruce J. Collier, of Kneeland, Laggis, Korb & Collier, Ketchum, for defendant-respondent Colwell Mortgage Trust.

James L. Kennedy, Jr., and R. Michael Redman, of Walker & Kennedy, Twin Falls, for defendant-respondent L. J. Broekemeier, Inc.

William J. Langley, Twin Falls, for defendants-respondents Sawtooth Title Co., Inc. and Lawyers Title Insurance Corp.

SHEPARD, Chief Justice.

Prior to oral argument respondents filed a motion to dismiss the instant appeal on the contention that the orders for which review is sought are nonappealable. Decision thereon was reserved. For the reasons that follow, the appeal is dismissed.

Plaintiff-appellant Pichon was a vendor of land in Ketchum, Idaho. L. J. Broekemeier, Inc., defendant-respondent, was the vendee. Broekemeier intended to build condominium units on the subject land. Colwell Mortgage Trust, also a defendant-respondent, assisted Broekemeier with financing for this venture. Sawtooth Title Co., another defendant-respondent, insured the title and acted as escrow agent for the vendor and vendee. Lawyers Title Insurance Corp., still another defendant-respondent, authorized Sawtooth to act as its agent to write title insurance in Blaine County. Under the contract of sale, Pichon agreed to convey 11/2 acres of the 3 acre tract when Broekemeier had paid approximately one-half the total purchase price. At the plaintiff's election she could take part of the purchase price in the form of three units within the proposed project. She exercised that option and took possession of the three units but has never received title to those units.

Colwell Mortgage Trust desired greater security from Broekemeier for its investment. To assist Broekemeier, Pichon executed a warranty deed to Broekemeier covering approximately the 11/2 acres of the tract on which the corporation was building the condominium units. Pichon also executed a "consent to encumber" to the entire property, subject to her interest therein. This allowed Colwell to take a deed of trust on the property from Broekemeier. According to Pichon, she was told by Mr. Broekemeier, an officer of L. J. Broekemeier, Inc., that the consent to encumber would be recorded but that the warranty deed would not be recorded but would be held by the escrow agent. She contends that she did not let Mr. Broekemeier take the warranty deed with the understanding that it would be recorded. In fact the deed was recorded and respondents contend that "delivery" of the deed is presumed both from recordation and Mr. Broekemeier's possession of the instrument. Sawtooth, according to the appellant, breached its escrow duty by recording the warranty deed in favor of Broekemeier when the purchase price therefor had not yet been paid.

Broekemeier subsequently defaulted on its obligations to Colwell Mortgage Trust. Colwell then foreclosed on the deed of trust executed in its favor by Broekemeier. In addition, Broekemeier has not completed making the payments called for under its contract with Pichon. Pichon has demanded and Colwell Mortgage Trust has refused to convey title to the three condominium units which appellant claims under her contract with Broekemeier.

In her complaint Pichon set out four "counts" against the four defendants. In Count I the appellant sought to quiet title to the 11/2 acres covered by the warranty deed to herself. On an order of partial summary judgment, the trial court dismissed appellant's claim for quiet title and instead quieted title in Colwell Mortgage Trust. In so ruling, the trial court determined that the appellant had "delivered" the above mentioned warranty deed for purposes of passing title. Although the trial court's dismissal of Pichon's Count I does not expressly state, we assume that this Count was dismissed as to all four defendants as neither the two title companies nor Broekemeier assert any claim of right or title against Pichon in the property covered by the quiet title claim. Appellant characterizes Count II as "intentional interference with economic relations;" Count III as "action to vacate the foreclosure;" and Count IV as "recovery of unpaid contract price" damages for breach of contract. Partial summary judgment was entered in favor of respondent Lawyers Title on Counts II, III and IV. As stated by appellant, "Pichon does not contend, on this appeal, that summary judgment in favor of Lawyers was in error as to Count III and Count IV. Partial summary judgment was entered in favor of respondent Sawtooth Title Co. on Count II." Partial summary judgment was also entered in favor of respondent Broekemeier on Counts I, III and IV, except to the extent that Count IV seeks damages for breach of contract.

With regard to each of the foregoing orders of partial summary judgment, except as to respondent Sawtooth Title Co., the trial court made findings pursuant to Rule 54(b), "that there is no just reason for delay in the entry of judgment . . . and its entry as a final judgment is hereby directed." The trial court's orders of partial summary judgment do not comply with Rule 56(d) in that there is no statement of what facts were found to be without genuine controversy and what facts remain to be determined at trial. We note, however, that the trial court's finding that Pichon had "delivered" the deed to Mr. Broekemeier with regard to appellant's quiet title claim appears to be contradicted by the trial court's other ruling that Pichon in Count IV for damages can raise the issue of whether Broekemeier had tricked the deed out of her. On the record before us we cannot tell how the apparent contradiction is to resolve itself, but in view of our determination of the case it is unnecessary for us to reach the question.

Pichon has appealed the trial court's order of partial summary judgment in favor of Sawtooth Title Co. Since no Rule 54(b) certification was made in respect to that order, the order is nonappealable and the appeal thereon is dismissed. Athletic Round Table, Inc. v. Merrill, 98 Idaho 852, 574 P.2d 540 (1978). Counts II, III and IV were dismissed against respondent Lawyers Title Insurance Co. In addition, it appears, and for the purpose of this appeal we assume, that Count I was also dismissed against Lawyers Title. Thus, the trial court disposed of all the appellant's claim against Lawyers Title and all such orders were accompanied by Rule 54(b) certifications. Idaho's version of Rule 54(b) ¹ was different from the corresponding federal Rule 54(b) ². Idaho's rule permitted certification only when there was more than one claim for relief and one or more but less than all of those claims were disposed of against all parties against whom those claims were made. The federal rule permits certification in the same situation as well as in the situation where there are multiple parties and all claims against one or more but less than all parties are disposed of. Were the federal rule applicable to this case, certification as to the disposition of appellant's claims against Lawyers Title might have been possible on the latter contingency provided for in the federal rules. ³ As a result of certification affecting Lawyers Title under Idaho's rules must be considered on a claim-by-claim basis. The district court's orders of partial summary judgment in this case left some aspect of claims II, III and IV outstanding against one or more defendants. Under our version of Rule 54(b), then, there was no proper basis for certifying dispositions of those claims against Lawyers Title. The district court was without power to certify those dispositions as final, appealable orders. The same may be said of the district court's dispositions of Claims III and IV against Broekemeier. Appeals from dispositions of these claims are unauthorized under I.R.C.P. 54(b) and appeals from these dispositions are accordingly dismissed. See Southland Produce Co. v. Belson, 96 Idaho 776, 536 P.2d 1126 (1975).

The only claim which the trial court's orders arguably disposed of in whole was Count I. We will treat the Rule 54(b) certification made by the trial court in reference thereto as applying to all four defendants. The trial court ordered that a final judgment be entered on Count I with the express determination that there was no just reason for delay in such entry. "In the absence of circumstances not presented here . . . an action may be appealed only upon an express determination by the trial court that there is no just reason for delay." John Deere Co. v. Kunzler, 97 Idaho 921, 921, 557 P.2d 199, 199 (1976). The trial court's determination that there is no just reason for delay is not, however, binding on the appellate court when it appears the lower court abused its discretion in so finding. Baca Land & Cattle Co. v. New Mexico Timber, Inc., 384 F.2d 701 (10th Cir. 1967).

Idaho's Rule 54(b) is patterned after the federal rule as it was amended in 1946. Southland Produce Co. v. Belson, supra. The Committee Note accompanying the federal amendment noted that the purpose of allowing appeals from partial dispositions of a whole case was "to avoid the possible injustice of a delay in judgment of a distinctly separate claim." The Committee added that a Rule 54(b) certification would be improper where a trial remained to be had "on other claims similar or identical with those disposed of." 6 Moore's Federal Practice P 54.01(6) at 52.54. That is precisely the situation which exists in this case. Although the trial court determined Pichon had delivered the deed to Broekemeier in denying Pichon's request for a decree of quiet title...