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Pennington v. Flaherty

Supreme Court of Montana

June 18, 2013

JANICE PENNINGTON, Plaintiff and Appellee,
v.
FRANK E. FLAHERTY and THE ESTATE OF MARGARET M. FLAHERTY, Defendants and Appellants, and JOSEPH C. BUNDI and MELVIN E. MATTINGLY, Defendants.

Submitted on Briefs: January 23, 2013

District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DV 08-033 Honorable David Cybulski, Presiding Judge

For Appellants: Steven T. Potts, Steven T. Potts, PLLC

For Appellee: Michael Talia, Mark Smith; Church, Harris, Johnson & Williams, P.C.

OPINION

Brian Morris, Justice

¶1 Appellants Frank E. Flaherty and the Estate of Margaret M. Flaherty (collectively Flaherty) appeal from an order entered by the Ninth Judicial District Court, Teton County that granted summary judgment in favor of Appellee Janice Pennington (Pennington) on Pennington's action to quiet title. We affirm.

¶2 We address the following issue on appeal:

¶3 Whether the District Court properly granted summary judgment to Pennington?

BACKGROUND AND HISTORY

¶4 Bruce Nelson (Nelson) subdivided property on Gibson Reservoir in Teton County in the early 1970s. Nelson filed a plat of the subdivision on June 11, 1973. The plat depicts approximately 44 tracts. Nothing in the plat indicates any prohibition on the development of Pennington's tract, or any other tract. In fact, the plat places only one restriction on the development of any tract, including Pennington's: that no property owner could install a sanitary facility on the lot until the county sanitarian approves the facility.

¶5 Nelson filed a separate document entitled "Restrictions" with Teton County on June 12, 1974. The Restrictions provide that tracts 16 and 17, now owned by Pennington, would be "combined into usage" as one tract. The Restrictions further provide that the installation of any drain field on the combined parcel would require approval from the county sanitarian "prior to construction on the combined parcel of the said two tracts."

¶6 Flaherty claims that he purchased tract 18 from Nelson on June 21, 1973, ten days after Nelson had filed the plat. Flaherty waited until January 27, 1975, to record the deed. Flaherty's deed declares that he takes title to tract 18 subject to "[r]estrictions dated June 4th, 1974 recorded June 12th 1974." T he delayed filing of Flaherty's deed until January 27, 1975, seems the only explanation as to how Flaherty's deed could subject the purchase to the Restrictions that were recorded in 1974. It remains unanswered from the record, however, how Flaherty's deed, ostensibly executed on June 21, 1973, could refer explicitly to Restrictions filed on June 12, 1974.

¶7 Flaherty alleges that, around the time of conveyance of his property, Nelson guaranteed, orally and in writing, that he would not sell adjoining tracts 16 and 17. Flaherty claims that Nelson intended tracts 16 and 17 to serve as a buffer zone to provide more privacy to tract 18 and thereby enhance tract 18's appeal. Flaherty filed a notarized "Declaration of Interest" (Declaration) with the Teton County Clerk and Recorder four years later in 1977.

ΒΆ8 The Declaration takes the form of an affidavit of Frank Flaherty, dated March 28, 1977. Flaherty attested that Nelson "orally and in writing guaranteed that the sites now known as Tracts 16 and 17 of Gibson Lake Tracts East would not be sold." T he Declaration further provides that the "covenant not to develop sites 16 and 17 was an integral part of my contract with Bruce Nelson." The Declaration further seeks "to put on actual and constructive notice any prospective purchase is subject to my interest." The Declaration concludes with a warning that Mr. ...


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