file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm




                                                               No. 00-206

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 304

                                                             302 Mont. 391

                                                               15 P.3d 864

                                                  CHRISTOPHER K. DISLER,

                                                      Plaintiff and Respondent,

                                                                     vs.

                                            FORD MOTOR CREDIT COMPANY,

                                                     Defendant and Appellant.

                             APPEAL FROM: District Court of the Fifth Judicial District,

                                                In and for the County of Madison,

                                     The Honorable Frank M. Davis, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                               Kyle Larsen, Great Falls, Montana

                                                            For Respondent:

                                             Loren Tucker, Virginia City, Montana

                                               Submitted on Briefs: July 20, 2000
                                                  Decided: December 5, 2000

                                                                   Filed:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (1 of 9)3/30/2007 2:48:06 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm



                                    __________________________________________

                                                                     Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 This is an appeal by Ford Motor Credit Company (Ford) from the District Court's
March 22, 2000 Findings and Order granting summary judgment to Christopher K. Disler
(Christopher) in his quiet title action. We affirm the court's grant of summary judgment
and remand for further proceedings consistent with this opinion as to sanctions under Rule
32, M.R.App.P.

                                         Procedural and Factual Background

¶2 Christopher filed his complaint on October 20, 1999, to quiet title to land in Madison
County, Montana, legally described as:

        A tract of land situated in the NW¼ of Section 14, Township 9 South, Range 3
        West, P.M.M., more particularly shown and described as Tract A on Certificate of
        Survey filed in Book 7 of Surveys, page 453, records of Madison County, Montana.

Ford answered, claiming a judgment lien on the property. In due course, Christopher
moved for summary judgment and filed a supporting affidavit, brief, and Ford's answers to
Christopher's requests for admission and interrogatories. Ford opposed summary judgment
and supported its objection with a brief. Attached to Ford's brief, but without the benefit of
any supporting affidavit, were various documents apparently generated in connection with
Wilma Hudson's (Hudson) financing of an automobile purchase through Ford in the
summer of 1990 and in connection with Ford's attempt to collect Hudson's default on the
resulting loan. The District Court heard oral argument on Christopher's motion and, as
noted, subsequently granted summary judgment. Ford timely appealed.

¶3 The summary judgment record reveals the following undisputed--and dispositive--
material facts. Hudson entered into a contract for deed covering the subject real property
with Christopher's predecessor in interest, Kevin R. Disler, in July 1981. This transaction
was escrowed at the Ruby Valley National Bank. The contract for deed was paid off in
May 1988, and on June 8, 1988, the escrow agent sent to "Kevin R. Disler" at his address
in Hunertown, Indiana, the title insurance, warranty deed and certificate of survey.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (2 of 9)3/30/2007 2:48:06 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm


Christopher signed for these documents on June 13, 1988. The Hudson to Kevin Disler
deed, dated and signed July 22, 1981, was recorded on April 14, 1997, in Book 407, page
449, records of Madison County. A deed of distribution from the Kevin Disler estate to
Christopher was recorded later in Book 427, page 992. On May 3, 1994, Ford obtained a
default judgment against Hudson as a result of her failure to pay her automobile loan.

¶4 On this record, we consider two issues:

¶5 1. Did the District Court err in granting summary judgment to Christopher?

¶6 2. Is Christopher entitled to sanctions against Ford for a frivolous appeal?

                                                               Discussion

                                                Issue 1--Summary Judgment

¶7 "Summary judgment is proper when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law." Ash Grove Cement Co. v.
Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 88; Rule 56(c), M.R.Civ.P.
We review a district court's grant of summary judgment de novo, applying the same Rule
56(c), M.R.Civ.P. criteria as the district court. Ash Grove Cement Co., 283 Mont. at 491,
943 P.2d at 88 (citation omitted).

¶8 Ford contends that there exist material issues of fact concerning proper delivery of the
Hudson to Kevin Disler deed and the nature of Kevin Disler's possession of the subject
property. Ford questions why the deed was not recorded until 1997, and it raises various
equitable concerns with respect to Hudson's statements on her 1990 loan application and
which she made, subsequently, to Ford's collector--statements which Ford claims led it to
believe that Hudson owned the property. Ford maintains that it was Christopher's
obligation on summary judgment to offer evidence addressing and resolving the various
questions and concerns. We disagree.

¶9 While all reasonable inferences are to be drawn from the offered evidence in favor of
the party opposing summary judgment, where the record--here, the record made on
summary judgment by Christopher--discloses no genuine issue of material fact, the burden
then shifts to the party opposing summary judgment to present substantial evidence of a
genuine issue of material fact. This burden is not met by merely making conclusory or


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (3 of 9)3/30/2007 2:48:06 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm


speculative statements or by raising unsubstantiated concerns and theories in a brief. See
Erker v. Kester, 1999 MT 231, ¶ 17, 296 Mont. 123, ¶ 17, 988 P.2d 1221, ¶ 17.

¶10 If Ford believed that any of the matters which it argued to the trial court and now
argues on appeal would defeat summary judgment, then it was Ford's burden to place the
appropriate supporting affidavits or fruits of discovery into the summary judgment record.
This it failed to do. As we observed in Thornton v. Songstad (1994), 263 Mont. 390, 397,
868 P.2d 633, 637:

        proving [Thornton's] theory would benefit his case and defeat the defendants'
        motion for summary judgment; and, accordingly, [Thornton] had the affirmative
        duty to bring before the court substantial evidence and specific material facts
        supporting his theory by filing affidavits or through sworn deposition testimony or
        interrogatory answers in the record.

¶11 Moreover, as noted, the three loan documents were simply attached to Ford's
summary judgment brief without any supporting testimonial affidavit or sworn discovery
response from any person at Ford as contemplated by Rules 56(c) and (e), M.R.Civ.P.
Basically, without an affidavit or sworn discovery response of a Ford employee with
personal knowledge of the genuineness, relevance and contents of the documents, the
attachments to Ford's brief were little more than inadmissible hearsay. See Eberl v.
Scofield (1990), 244 Mont. 515, 519, 798 P.2d 536, 538; Thornton, 263 Mont. at 398, 868
P.2d at 638 (affidavits containing inadmissible hearsay may not be considered as meeting
the party's burden on summary judgment).

¶12 That said, we do note that Ford stated to the trial court at the summary judgment
hearing that it needed to conduct some discovery. However, we also note an absence in the
                                                          (1)
record of any Rule 56(f), M.R.Civ.P. affidavit or any apparent attempt by Ford to
conduct discovery between the time it filed its answer on December 3, 1999, and the time
Christopher filed for summary judgment over two and one-half months later--a time frame
during which Christopher apparently sent to Ford and received back answers to his own
interrogatories and requests for admission.

¶13 Here, the facts referred to in ¶ 3 above are the only facts actually established in the
pleadings, answers to interrogatories, and admissions on file in this case and in the public
record (of which the trial court was asked to take judicial notice). Accordingly, it is on
these facts that we base our decision. See Erker, ¶ 17.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (4 of 9)3/30/2007 2:48:06 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm



¶14 We must next determine whether Christopher was also entitled to judgment as a
matter of law on these facts. Rule 56(c), M.R.Civ.P. We agree with the District Court that
he was. Our decision in Hannah v. Martinson (1988), 232 Mont. 469, 758 P.2d 276, is
dispositive.

¶15 Hannah is more complicated factually than the case at bar but the principle of law is
the same. Hannah transacted a land sale to Pride under a contract for deed. Pride resold the
property under another contract to Martinson. Pride defaulted but Hannah honored his
contract with Martinson who continued to pay Hannah. Martinson then delivered a quit
claim deed and a warranty deed, both executed January 15, 1981, to Nichols. The quit
claim deed was recorded October 22, 1982; the warranty deed was recorded June 14,
1983. Nichols continued to make payments to Hannah until he defaulted on April 13,
1983. Hannah then repossessed the property and sued to quiet title. Hannah, 232 Mont. at
470, 758 P.2d at 277.

¶16 The only defendant to dispute Hannah's title was Klatt. Klatt had obtained a judgment
against Martinson on September 24, 1981, after Martinson had delivered his two deeds to
Nichols, but before the deeds were recorded. The District Court determined that Klatt's
judgment lien did not attach to the real property. Hannah, 232 Mont. at 471, 758 P.2d at
277-78. We affirmed in an opinion wherein we thoroughly discussed the issue of whether
a judgment lien attaches to real property which has been transferred to another party by
means of an unrecorded deed prior to the docketing of the judgment. Hannah, 232 Mont.
at 470, 758 P.2d at 277.

¶17 We stated the principle of law upon which we relied to resolve this issue in the
following language:

        A judgment lien can only attach to the actual interest of the judgment debtor. It can
        not attach to an interest which does not exist, nor can a judgment lien claim
        superiority as against a valid prior transfer.

        A judgment lien can only bind an interest in real property when the debtor himself,
        during the existence of the judgment lien, could voluntarily transfer or alienate the
        interest.

Hannah, 232 Mont. at 472, 758 P.2d at 278-79 (internal citations omitted).


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (5 of 9)3/30/2007 2:48:06 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm


¶18 In the case sub judice, some thirteen years prior to Ford obtaining its judgment against
her, Hudson entered into a contract for deed with Kevin Disler to sell the subject real
property. Some six years before entry of Ford's judgment, Hudson actually conveyed the
subject property to Kevin Disler by warranty deed when the contract was paid off. Plainly,
at the time Ford's judgment was entered on May 3, 1994, Hudson owned neither an
equitable interest nor a legal interest in the subject property. In fact, she had no interest at
all.

¶19 Under the rule set out in Hannah, as of May 3, 1994, Hudson had no actual interest in
the real property at issue; Ford's judgment lien could not attach to an interest of Hudson
which did not exist; nor could Ford's judgment lien claim superiority against Hudson's
valid prior transfer to Kevin Disler. Ford's judgment lien could only bind an interest of
Hudson in the subject real property if, on or after May 3, 1994, she, herself, could have
voluntarily transferred or alienated her interest. Obviously, having already sold and
conveyed away all of her equitable and legal title and interest in and to the subject
property years before Ford obtained its judgment against her, Hudson could not have
voluntarily transferred or alienated her interest in the property on or after May 3, 1994.
Hannah, 232 Mont. at 472, 758 P.2d at 278-79.

¶20 The fact that the Hudson to Kevin Disler deed was not recorded until April 1997, does
not change this result. "An unrecorded instrument is valid as between the parties and those
who have notice thereof." Section 70-21-102, MCA. See also Blakely v. Kelstrup (1985),
218 Mont. 304, 306, 708 P.2d 253, 254 (record title and legal title are not synonymous; a
property owner can have a valid legal title without recordation; recordation is a device to
establish priority but has nothing to do with conveying title; its purpose is to give notice to
subsequent purchasers and encumbrancers).

¶21 In summary, on the actual undisputed facts established in the record, Christopher was
entitled to judgment as a matter of law. The District Court's order granting summary
judgment is, therefore, affirmed.

                                                         Issue 2--Sanctions

¶22 On appeal Christopher argues that Ford's appeal was without substantial or reasonable
grounds. He maintains that Hannah was clearly on point and dispositive under the facts he
proved. Accordingly, Christopher requests that we award sanctions under Rule 32, M.R.
App.P. This rule provides:


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (6 of 9)3/30/2007 2:48:06 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm


If the supreme court is satisfied from the record and the presentation of the appeal in a
civil case that the same was taken without substantial or reasonable grounds, such
damages may be assessed on determination thereof as under the circumstances are deemed
proper.

¶23 "This Court does not readily impose sanctions upon parties for filing frivolous
appeals." Federated Mut. Ins. Co. v. Anderson (1996), 277 Mont. 134, 142, 920 P.2d 97,
102. However, we have imposed sanctions where the appellant has taken conflicting and
inconsistent positions, where it has miscited or misrepresented authority and where
arguments and positions taken are not supported by substantial and reasonable grounds.
See Federated, 277 Mont. at 142-46, 920 P.2d at 102-104.

¶24 Christopher contends that Ford took inconsistent positions in the trial court in its
response to his motion for summary judgment, first asserting that it had no knowledge that
Hudson had conveyed her property and then asserting that Hudson had not conveyed her
property. Christopher also claims that Ford inaccurately cited Kirgan v. Kirgan (1949),
123 Mont. 34, 207 P.2d 557, in its summary judgment brief. Finally, Christopher
maintains that, by reason of our decision in Hannah and its clear applicability to the case
at bar, Ford's appeal was without any substantial or reasonable grounds. Ford does not
respond to these arguments because it failed to file a reply brief on appeal.

¶25 As already noted, in his summary judgment submissions, Christopher established the
factual predicate for the applicability of Hannah. Moreover, he argued that case to the trial
court in his brief, and, while the court did not file a rationale with its order granting
summary judgment, presumably, the trial judge relied on Hannah for its ruling. Ford's
response to Christopher's summary judgment motion was largely to raise unsubstantiated
equitable concerns about Hudson applying for and receiving a loan from Ford, while
implying, in Ford's view, that she owned the subject property, even though it had been
previously sold and conveyed to Kevin Disler. Ford also raised questions about
Christopher's failure to immediately record the Hudson to Kevin Disler deed and as to his
claim of possession to the property. Ford also argued that Hannah was factually
distinguishable and cited Kirgan for the proposition that a person in dealing with another
person in respect to real property may rely on the record title in the absence of knowledge
of the actual title. Again, as noted, Ford argued, without supporting affidavits or sworn
discovery, that it relied on the record title to the real property in making its loan to Hudson
and that with discovery it could prove up its theories of fraud and unclean hands.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (7 of 9)3/30/2007 2:48:06 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm


¶26 The problem is, as we have already observed, that short of counsel's statements,
theories, and questions raised in Ford's brief and three loan documents attached to the
brief, Ford submitted nothing to meet its burden to demonstrate an issue of material fact.
Moreover, and notwithstanding Ford's attempts to distinguish Hannah, the case was and is
clearly on point. Finally, Ford's appeal tracks its approach in the trial court.

¶27 While Ford's conduct was and is not as egregious as was John Deere's in Federated,
nevertheless, having thoroughly reviewed the summary judgment record and having
carefully considered the briefs on appeal, we are hard-pressed to find any real merit in
Ford's defense of Christopher's summary judgment motion or in its case on appeal. We
conclude that on the record and briefing before us, Ford's appeal was taken "without
substantial or reasonable grounds" and, therefore, under Rule 32, M.R.App.P., Christopher
is entitled to his costs and attorney's fees in prosecuting this appeal.

¶28 We affirm the trial court's grant of summary judgment to Christopher. We remand,
however, for further proceedings to determine and to award judgment to Christopher for
his costs and reasonable attorney's fees on appeal.

¶29 Affirmed and remanded for further proceedings consistent with this opinion.

                                                    /S/ JAMES C. NELSON

                                                               We Concur:

                                                      /S/ KARLA M. GRAY

                                                /S/ WILLIAM E. HUNT, SR.

                                                         /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART

1. Rule 56(f), M.R.Civ.P., provides:

Should it appear from the affidavits of a party opposing the motion [for summary
judgment] that the party cannot for reasons stated present by affidavit facts essential to
justify the party's opposition, the court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained or depositions to be taken or

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (8 of 9)3/30/2007 2:48:06 PM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm


discovery to be had or may make such other order as is just.




 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-206%20Opinion.htm (9 of 9)3/30/2007 2:48:06 PM
