Submitted on Briefs: July 31, 2013
APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV-10-77 Honorable Ray J. Dayton, Presiding Judge.
For Appellant: Quentin M. Rhoades; Sullivan, Tabaracci & Rhoades, P.C.; Missoula, Montana, Nathan G. Wagner; Datsopoulos, MacDonald & Lind, P.C.; Missoula, Montana.
For Appellee First American Title Insurance Company: Ian McIntosh, Kelsey E. Bunkers, Brad Brown; Crowley Fleck, PLLP; Bozeman, Montana
For Appellee Powell County Title Company: Ted L. Mizner; Attorney at Law; Deer Lodge, Montana
PATRICIA O. COTTER JUSTICE
¶1 Tom Harpole, a former owner of real property in Powell County, sued First American Title Insurance Company and Powell County Title Company claiming they negligently misrepresented the status of the access road into his former property and thus foiled a potential sale of the property. The Third Judicial District Court granted summary judgment in favor of the title companies. Harpole appeals. We affirm.
¶2 A restatement of the issues on appeal is:
¶3 Did the District Court err in granting summary judgment in favor of the title companies?
¶4 In a companion case, did the District Court abuse its discretion when it required Harpole to post an appellate bond?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Tom Harpole moved onto a parcel of real property located near Avon, Montana, in Powell County in 1977. At that time, the property was owned by his grandfather's corporation and had been since 1931. In 1991, Harpole purchased the property from the family corporation. At the time of purchase, he obtained title insurance from First American Title Insurance Company (First American) through Powell County Title Company (Powell County Title). The 1991 title policy did not contain any exception for legal access. Harpole testified that since he moved onto the property, he had continuously accessed it without complication by way of what is now known as Harpole Road.
¶6 In 2006, Harpole began marketing the property for sale. He claims a prospective buyer made an offer to purchase the property for $800, 000 in 2008. In preparation for this sale, Harpole obtained a preliminary title commitment from Powell County Title. At the time Grace Foster was responsible for all title insurance work performed by Powell County Title and wrote insurance policies for First American. Prior to issuing the preliminary title commitment, Foster searched "the records located in the Powell County Treasurer's Office, Clerk and Recorder's Office, the Clerk of Court's office and the Commissioner's Office." Discovering that these records contained no indication that Harpole Road was a county road, Foster consulted with the Powell County Assessor who opined that Harpole Road was not an official county road. As a result, the 2008 preliminary title commitment contained an exception for "lack of right of access to and from the subject property."
¶7 Harpole visited Foster's office to discuss the title commitment. Foster explained to Harpole that Harpole Road had not been designated as a county road and there was no recorded easement establishing a road. Harpole then met with numerous county officials all of whom opined that Harpole Road was not a designated county road on the road map or in the county road book. He claims he was invited by county officials to conduct his own research and thus began an investigation that lasted three months and took him to Helena, Butte, Missoula and Billings. In his investigation, Harpole discovered several old maps and various historic documents including a 1903 road record document (1903 Road Record) which was located in a vault in the Clerk and Recorder's office at the Powell County Courthouse.
¶8 The 1903 Road Record, which contains a description of multiple road districts existing in Powell County in 1903, including the Avon area, stated "County Road No. 9" was declared a public highway in 1903. Based upon the description of County Road No. 9, Harpole concluded that Harpole Road was formerly known as County Road No. 9 ...