                                                                                             April 9 2013


                                          DA 12-0117

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 89


MARY MCCULLEY,

              Plaintiff and Appellant,

         v.

AMERICAN LAND TITLE COMPANY
and U.S. BANK OF MONTANA,

              Defendants and Appellees.


APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DV-09-562C
                        Honorable John C. Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Mary McCulley (Self-Represented), Bozeman, Montana

                For Appellee American Land Title Company:

                        Steven Reida, Alex Roots, Landoe, Brown, Planalp & Reida, P.C.,
                        Bozeman, Montana

                For Appellee U.S. Bank of Montana:

                        Mark C. Sherer, Mackoff Kellogg Law Firm, Dickinson, North Dakota



                                                     Submitted on Briefs: January 31, 2013

                                                                Decided: April 9, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     In 2006, Mary McCulley purchased a condominium (Condo) in downtown

Bozeman, Montana, for $395,000. She sought a residential loan from Heritage Bank,

predecessor to defendant U.S. Bank of Montana (hereinafter U.S. Bank or the Bank) for

$300,000. American Land Title Company (ALTC) provided a Commitment for Title

Insurance. McCulley signed a Promissory Note (Note) and signed a Deed of Trust

(Deed) as collateral. The Deed indicated that the Condo was for “residential purposes

only.” Subsequently, however, and purportedly without McCulley’s knowledge, ALTC

changed the designated use of the Condo in the Deed from residential to commercial.

¶2     After closing in June 2006, McCulley asserts she discovered the Bank had issued

her an 18-month, $300,000 commercial property loan rather than the 30-year residential

property loan for which she applied.        When she was unable to obtain long-term

refinancing on the property, McCulley signed a Warranty Deed transferring ownership of

the Condo to the Central Asia Institute. She used the proceeds to pay off the loan. She

then sued ALTC and U.S. Bank for negligence, breach of contract, fraud, slander of title,

intentional infliction of emotional distress, and malice. All parties filed motions for

summary judgment. The District Court granted ALTC’s and U.S. Bank’s motions for

summary judgment and denied McCulley’s. McCulley appeals. We affirm in part and

reverse and remand in part.

                                          ISSUE

¶3     A restatement of the issue on appeal is:



                                             2
¶4     Did the District Court err in granting summary judgment to American Land Title

Company and U.S. Bank?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶5     In May 2006, Mary McCulley agreed to purchase a condominium on East Main

Street in downtown Bozeman, Montana. The Condo was located on the top floor of a

commercial building and was priced at $395,000. McCulley approached Heritage Bank

(later purchased by U.S. Bank) on May 25, 2006, and applied for a 30-year (360 month)

residential loan for $300,000, later revised to $200,000. On that same day, Heritage

Bank generated a Federal Truth-In-Lending Disclosure Statement indicating the

estimated monthly payment for the first 60 months, the estimated payment for the next

299 months, and the final payment due on July 1, 2036. It also issued a Good Faith

Estimate that expressly referenced 360 payments for McCulley’s proposed loan.

¶6     On the following day, the Bank ostensibly prepared an informational document

(“the letter”) utilizing a format typically used for internal interoffice correspondence or

documentation. There was no salutation, introductory paragraph, or signature line. The

document favorably analyzed McCulley’s credit-worthiness for a $300,000 loan, but

noted that while the Condo was “residential,” the lot upon which it was built was zoned

commercial B2.     The Bank stated in the document that such commercial zoning

precluded “the use of standard secondary market sources for financing a residential

condominium.” Consequently, the Bank categorized the proposed loan as an 18-month

“consumer bridge” loan. The Bank professes this “letter” was sent to McCulley at the

time it was generated and that she agreed to the new terms, including a loan maturity date

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of December 16, 2007.       McCulley strongly denies ever receiving this document or

agreeing to an 18-month finance term.

¶7     The loan closing was conducted less than three weeks later, on June 16, 2006. The

Promissory Note and the Disclosure Statement signed by McCulley at closing stated that

the $300,000 loan matured on December 16, 2007. Additionally, the Deed of Trust

signed by McCulley at closing indicated that the Condo was to be used for residential

purposes only. It is undisputed, however, that without McCulley’s knowledge, ALTC

subsequently changed the Deed prior to recording it to reflect that the Condo was to be

used for commercial purposes only.

¶8     McCulley made monthly payments to the Bank throughout 2006 and 2007. She

claims she thought she was making normal mortgage payments. The Bank claims she

was making the required monthly interest payments. In the fall of 2007, McCulley

received notice that a balloon payment on her 18-month loan was due in December 2007.

McCulley claims not to have known until that time that she did not have the 30-year

residential mortgage for which she had applied. While trying to resolve the issue with the

Bank, McCulley renegotiated the loan to extend the maturity date to June 16, 2008. She

did so again in June 2008, extending the maturity date to October 16, 2008. Ultimately,

unable to find suitable long-term residential financing, McCulley signed a Warranty Deed

transferring the Condo to the Central Asia Institute in June 2009, and paid off the note.




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¶9     In June 2009, McCulley, represented by counsel,1 filed her first complaint against

ALTC and U.S. Bank. She filed and served a first amended complaint in October 2009.

She claimed the defendants:     (1) were negligent in their loan dealing with her; (2)

breached the executed contracts; (3) committed fraud by misrepresenting the nature of the

loan; (4) slandered the title on the property by recording a Deed showing the Condo was

commercial property when she believed she had purchased residential property; and (5)

intentionally inflicted emotional distress upon her. She moved to amend the complaint

again in October 2010 to correct alleged errors former counsel had made in the first

amended complaint and to add a claim for actual malice. This motion was granted on

November 16, 2010.

¶10    McCulley moved for summary judgment. ALTC and the Bank also filed motions

for summary judgment. The District Court conducted a summary judgment hearing on

September 9, 2011. On January 12, 2012, the District Court issued its Order denying

McCulley’s motion for summary judgment and granting ALTC’s and U.S. Bank’s

motions. It subsequently entered judgment in favor of U.S. Bank and ALTC. McCulley

filed a timely appeal.

                              STANDARD OF REVIEW

¶11    We review a district court’s grant of summary judgment de novo, applying the

same criteria as the district court. A district court properly grants summary judgment

only when no genuine issues of material fact exist and the moving party is entitled to


1
  Counsel for McCulley withdrew in February 2010. McCulley represented herself for the
duration of the proceeding.
                                           5
judgment as a matter of law. Siebken v. Voderberg, 2012 MT 291, ¶ 16, 367 Mont. 344,

291 P.3d 572. If, however, genuine issues of material fact do exist in a case, it is not the

function of the district court to enter summary judgment; in fact, summary judgment is

precluded. Schmidt v. Washington Contrs. Group, Inc., 1998 MT 194, ¶ 26, 290 Mont.

276, 964 P.2d 34.

                                      DISCUSSION

¶12    Did the District Court err in granting summary judgment to American Land Title
       Company and U.S. Bank?

¶13    McCulley appeals the District Court’s ruling in favor of the Bank as it applies to

her claims that the Bank breached its contract and the covenant of good faith and fair

dealing, acted negligently, and committed fraud. She appeals the District Court’s ruling

in favor of ALTC as it applies to her claim that ALTC acted negligently and committed

fraud. She asserts the District Court erred in granting summary judgment to ALTC and

the Bank because genuine issues of material fact exist as to each of these claims. We

affirm the District Court’s rulings as to McCulley’s claims of breach of contract and

negligence against the Bank and her claims of negligence and fraud against ALTC. We

reverse the court’s ruling vis-à-vis McCulley’s claim that the Bank committed fraud in its

dealings with her.

Claims Against ALTC

¶14    We first address the court’s rulings pertaining to ALTC. It is undisputed that after

McCulley signed the original Deed stating the Condo could be used for residential

purposes only, ALTC changed the Deed to reflect that the Condo was to be used for


                                             6
commercial purposes only. ALTC then recorded the revised Deed. McCulley argued

that this change, unbeknownst to her, later caused her to be unable to obtain refinancing

through a conventional long-term residential loan. However, it is also undisputed that the

Bank and McCulley executed two subsequent modifications of the Deed of Trust, both of

which expressly reflected in the legal description of the property that the Condo was to be

used for residential purposes only.

¶15    The District Court determined that the legal description in the Deed of Trust and

any subsequent changes thereto did not diminish McCulley’s legal title to the Condo nor

did it change the use of the property or the zoning classification of the property. Noting

that the property on which the Condo was built was zoned commercial before McCulley

purchased the Condo, the court concluded that the change to the original Deed of Trust

did not prevent McCulley from obtaining conventional financing; rather, the property’s

zoning classification did. As such, the revised legal description was not the cause of her

inability to refinance her loan. The court further concluded that the Condo By-Laws

would control the use of the Condo, not the Deed of Trust. And lastly, the District Court

ruled that terms of the Promissory Note dictated whether the loan was residential,

commercial or construction, and McCulley had made no allegation that ALTC was

involved in the negotiation or creation of the Promissory Note.

¶16    Premised on the foregoing findings, the District Court determined that McCulley

failed to establish that ALTC’s change to the Deed proximately caused McCulley’s

damages. Consequently, her negligence claim must fail. As for her fraud claim against

ALTC, the District Court concluded there was no evidence to indicate that ALTC

                                            7
intended to misrepresent the legal description of the property, which is one of the nine

mandatory elements of fraud; therefore, McCulley was unable to establish fraud. For

these reasons, the District Court granted ALTC’s motion for summary judgment.

¶17    As noted by the District Court, while a Deed of Trust contains a legal description

of property subject to transfer, such description does not alter the use, nature, or zoning of

the property. Zoning in the City of Bozeman and in Gallatin County is controlled by

specific ordinances and regulations. Moreover, the Deed was subsequently revised—

twice—to correctly reflect the use of the Condo as residential. Therefore, the original

Deed was no longer controlling. Under these circumstances, McCulley failed to establish

that ALTC’s change to the original Deed breached a duty owed to her or that such breach

caused her injuries warranting damages. Consequently, the District Court did not err in

granting summary judgment to ALTC on this issue.

¶18    Addressing McCulley’s claim on appeal that ALTC committed fraud when it

revised the original Deed, we note that McCulley presents no legal argument or authority

to support her contention. McCulley’s entire argument before this Court vis-à-vis her

claim that ALTC committed fraud when it altered the original Deed is as follows:

              The record is clear as to ALTC’s admission with regard to altering
       the Deed of Trust after the execution and without having the relevant
       parties initial such change. Fraud seems clear. It should be an issue
       determined by a jury, not Judge Brown, as to if this change is a “scrivener’s
       error” or if it is fraud as well as to what extent [McCulley] was damaged by
       the same.

¶19    To establish a prima facie claim for fraud, a party asserting the claim must set

forth specific facts to satisfy the nine mandatory elements of actual fraud. See In re


                                              8
Estate of Kindsfather, 2005 MT 51, ¶ 17, 326 Mont. 192, 108 P.3d 487. Actual fraud is a

question of fact and a “mere suspicion of fraud” is insufficient. Franks, ¶ 18. While

certainly in many cases a jury sits in the role as “fact-finder,” in many cases, as in this

one, the trial judge assumes this role. H-D Irrigating, Inc. v. Kimble Props., Inc., 2000

MT 212, ¶ 55, 301 Mont. 34, 8 P.3d 95. McCulley failed to set forth the necessary facts

to establish the nine elements before the District Court and has not even attempted to

establish the elements on appeal. McCulley’s conclusory statement that “[f]raud seems

clear” is insufficient to sustain her claim.

¶20    As we have stated on numerous occasions, under M. R. App. P. 23 we are not

obligated to develop arguments on behalf of parties to an appeal, nor are we to guess a

party’s precise position, or develop legal analysis that may lend support to his position.

Botz v. Bridger Canyon Planning & Zoning Comm’n, 2012 MT 262, ¶ 46, 367 Mont. 47,

289 P.3d 180 (citing In re Estate of Bayers, 1999 MT 154, ¶ 19, 295 Mont. 89, 983 P.2d

339). Because McCulley has failed to develop any legal argument, authority or analysis

for her claim of fraud, we do not address the argument further. We therefore affirm the

District Court order of summary judgment in favor of ALTC on the issue of fraud.

Claims Against U.S. Bank

¶21    We now turn to McCulley’s various claims against U.S. Bank. McCulley alleges

the Bank engaged in negligence, fraud, breach of contract, breach of the covenant of

good faith and fair dealing, and infliction of emotional distress. To a significant extent,

McCulley attempts throughout her arguments to blame the Bank for the actions of ALTC.

The District Court rejected this proposition, as do we. McCulley appeals only the District

                                               9
Court’s rulings pertaining to breach of contract and the covenant of good faith and fair

dealing, negligence, and fraud. We address her claims against the Bank in turn.

¶22    Turning first to McCulley’s allegation of breach of contract, McCulley’s sole

argument in her Motion for Summary Judgment was that defendants ALTC and the Bank

breached the contracts “by failing to abide by the terms asserted therein, and rendered the

contract void by substantial alterations of the deed.” She opined that ALTC and the Bank

had “significantly altered” enforceable contracts rendering them unusable. The District

Court concluded that the Bank had “nothing to do with ALTC’s alteration of the usage

restriction change on the Deed of Trust.” As a result, the District Court ruled that

“[b]ecause US Bank did not alter the usage restriction on the Deed of Trust, US Bank did

not breach its contract with McCulley.” We agree with the District Court. Further, we

observe that the actual loan contracts were not breached. McCulley signed multiple

documents at the closing, comprised of close to 100 pages of fine print. In the three

places in the documents where the term of the loan was actually set forth, a maturity date

of “12-16-07” is reflected. Therefore, notwithstanding the potential viability of other

claims against the Bank, the Bank cannot be said to have breached the written contracts.

¶23    McCulley also argues on appeal that the Bank breached “the implied covenant of

good faith and fair dealing as well as its duty of ‘honesty in fact and the observance of

reasonable commercial standards of fair dealing in the trade.’ ” We reject this argument

because it was not presented in the District Court. While McCulley mentioned “implied

good faith and fair dealing” in passing, her argument in the District Court focused on her

contention that the Bank participated with ALTC in revising the Deed of Trust, a theory

                                            10
for which there is no factual support whatsoever. This Court generally refuses to address

a changed legal theory on appeal because it would be “fundamentally unfair to fault the

trial court for failing to rule correctly on an issue it was never given the opportunity to

consider.” Mt. W. Bank, N.A. v. Glacier Kitchens, Inc., 2012 MT 132, ¶ 13, 365 Mont.

276, 281 P.3d 600. As the District Court correctly ruled based upon the legal theory

presented by McCulley, we affirm the court on the issue of the Bank’s breach of contract.

¶24    As to McCulley’s claim of negligence against the Bank, McCulley argued to the

District Court that the defendants owed her a duty of care when preparing her loan

documents and in assuring the accuracy of the documents, and that both ALTC and the

Bank breached their duty by failing to assure the accuracy of the documents and in

performing their duties in good faith. Again, as noted by the District Court, the Bank

owed a duty to draw up the loan documents but there was no evidence that the Bank had

anything to do with the alteration of the Deed of Trust. The District Court therefore held

that McCulley’s negligence claim against the Bank failed.

¶25    On appeal, McCulley argues that a fiduciary duty arose between her and the Bank

when the Bank “became an advisor to [her] by substituting a short-term . . . loan for the

mortgage for which she applied.” She claims the Bank “owed her a fiduciary duty to

disclose to her the full terms of the loan that it unilaterally designed to get her business

and the short-term in which she would need to pay off the total principal.” She further

asserts that the Bank breached its fiduciary duty in providing her with a loan “designed

for her to fail in the first place.”



                                            11
¶26      McCulley did not argue in the summary judgment proceedings that the Bank

became an “advisor” to her and that this caused a fiduciary duty to arise. For the reason

explained above, we decline to address this legal theory for the first time on appeal. Mt.

W. Bank, ¶ 13. We therefore affirm the District Court’s ruling that there existed no

genuine issues of material fact as to McCulley’s claim that the Bank was negligent in its

dealings with her.

¶27      Finally, we address McCulley’s claim that the Bank committed fraud by engaging

in “bait and switch” tactics to change her approved 30-year residential mortgage to an

18-month balloon construction loan without her knowledge. She argued to the District

Court that the defendants initially represented to her that she was getting a residential

loan on a residential property. She further asserted that ALTC and the Bank “knowingly

made false representation as to the use and description of the property,” and that the Bank

referred to the loan “as a tradition [sic] mortgage in every document received by them.”

¶28      The District Court found that McCulley failed to state facts supporting each of the

nine elements of fraud. It reasoned that there was no admissible evidence in the record to

support a fraud claim against the Bank in that the Bank made no changes to the legal

description or use description of the Condo in the Deed of Trust.

¶29      On appeal, the Bank argues that McCulley predicates her fraud claim on her belief

that the Bank altered the Deed of Trust after she signed it, and because it did not,

McCulley’s claim fails. It further asserts that McCulley “has not and cannot offer facts to

support all nine elements of fraud,” and therefore the District Court’s decision should

stand.

                                             12
¶30    McCulley argues that the Bank was in possession of the Buy-Sell Agreement

wherein McCulley indicated that the zoning determination was a condition of purchase;

therefore, the Bank should have informed her from the beginning that the commercial

zoning of the property would preclude her from obtaining the residential 30-year

mortgage for which she applied. She asserts that had she been provided this information,

she would not have proceeded with the purchase transaction.

¶31    McCulley further argues that the Bank untruthfully claimed to have sent her the

“letter” dated May 26, 2006, “outlining the terms of her loan” and explaining that she

was getting an 18-month consumer bridge loan in the amount of $300,000. McCulley

adamantly denies ever having received such a document. She correctly notes that this

ostensible “letter” is formatted not as personal correspondence to her, but rather as an

interoffice memorandum. She further points out that the terms of this ostensible letter are

wholly contrary to the terms of the Truth in Lending Statement and Good Faith Estimate

documents sent to her by the Bank the day before, setting forth the terms and conditions

of a 30-year residential mortgage.

¶32    To establish a prima facie case for fraud, McCulley must establish:           (1) a

representation; (2) the falsity of that representation; (3) the materiality of the

representation; (4) the speaker’s knowledge that the representation is false; (5) the

speaker’s intent that the representation will be relied upon by the hearer to his or her

detriment; (6) the hearer’s ignorance of the representation’s falsity; (7) the hearer’s

reliance upon the truth of the representation; (8) the hearer’s right to rely upon the

representation; and (9) the hearer’s consequent and proximate injury or damages caused

                                            13
by their reliance on the representation. In re Adoption of S.R.T., 2011 MT 219, ¶ 16, 362

Mont. 39, 260 P.3d 177.

¶33    Generally speaking, once an agreement is reduced to writing, it is considered to

contain all terms of the agreement and extrinsic evidence concerning the intentions of the

parties is not admissible. Section 28-2-905(1), MCA. As noted herein, the documents

prepared by the Bank and signed by McCulley did in three locations reference an

18-month loan as opposed to a 30-year loan. However, this factor does not necessarily

preclude McCulley from presenting her fraud claims, as § 28-2-905(2), MCA, provides

that the statute “does not exclude other evidence of the circumstances under which the

agreement was made or to which it relates . . . or other evidence to explain an extrinsic

ambiguity or to establish illegality or fraud.”

¶34    McCulley testified that she had no idea that the Bank was extending only an

18-month commercial loan instead of a 30-year residential loan. Along with her realtor,

she attended the closing just three weeks after applying for her loan and receiving

documents from the Bank outlining the terms of the 30-year mortgage. Both McCulley

and her realtor swore under oath that no mention was made at the closing of the fact that

she was receiving an 18-month commercial loan, and that they both assumed that she was

closing on the 30-year residential loan as previously contemplated. In fact, she asserts

that she was unaware that she had received an 18-month loan until the Bank notified her

that her balloon payment was coming due in December 2007.

¶35    In light of the foregoing chronology of events, and in particular noting McCulley’s

arguably legitimate contention that the May 26 “letter” was not a letter to her at all, we

                                              14
cannot conclude that there is no genuine issue of material fact relative to McCulley’s

claim of fraud on the part of the Bank. McCulley maintains that the Bank sent her

documents outlining the terms of a 30-year residential mortgage and that it closed on the

loan not three weeks later without a mention that the terms of the loan were radically

different than those initially agreed to between the parties.2           Although inartfully,

McCulley has set forth sufficient facts to raise a genuine issue of whether a false and

material representation may have been made to her, that she acted upon it in ignorance of

the true facts, and that the Bank intended her to do so, resulting in damages. She

supported these claims with testimony in her deposition that she never received the

“letter” and that the Bank did not explain to her the change in the terms of her loan. It

bears repeating that summary judgment is precluded in cases in which genuine issues of

material fact exist. Schmidt, ¶ 26.

¶36    For these reasons, we reverse the District Court’s order of summary judgment in

favor of the Bank on the issue of fraud and remand the matter to the District Court for

further proceedings.

¶37    Finally, we note that McCulley claims she sustained damages as a result of the

Bank’s alleged fraud, including damages for emotional distress. The District Court can

address these claims on remand.

                                      CONCLUSION



2
 U.S. Bank Vice President Steve Fuert provided an affidavit in which he stated it is the Bank’s
procedure to explain the terms of the loan documents before they are executed, and that there is
nothing in the file to indicate these procedures were not followed.
                                              15
¶38   We affirm the District Court’s grant of summary judgment to ALTC and the

court’s grant of summary judgment to U.S. Bank as it pertains to the issues of breach of

contract and negligence. We reverse the court’s summary judgment ruling in favor of the

Bank as it pertains to McCulley’s allegation of fraud and remand this issue and the issue

of damages to the District Court for further proceedings.



                                                       /S/ PATRICIA COTTER


We concur:

/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ LAURIE McKINNON
/S/ BETH BAKER




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