                                                                                              June 23 2009


                                          DA 08-0410

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 212



AMERIMONT, INC.,

              Plaintiff and Appellant,

         v.

FIDELITY NATIONAL TITLE INSURANCE
COMPANY; THE HERRICK CO.; MICHAEL
HERRICK,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DV-2005-530
                        Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Robert K. Baldwin, Jim Barr Coleman, Goetz, Gallik & Baldwin, P.C.,
                        Bozeman, Montana

                For Appellee:

                        Steven W. Jennings, Crowley Fleck PLLP; Billings, Montana



                                                    Submitted on Briefs: May 28, 2009

                                                               Decided: June 23, 2009


Filed:

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

¶1     Amerimont, Inc., appeals the decision by the Eighteenth Judicial District Court of

Gallatin County to grant Fidelity National Title Insurance Company’s motion for

summary judgment. We reverse and remand.

                                          ISSUE

¶2     While Amerimont raises two issues on appeal, the dispositive issue is whether the

District Court erroneously granted summary judgment to Fidelity after ruling on a

question of material fact.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     In 2003, Amerimont approached Allied Land Title, Inc.,1 an agent for Fidelity

National Title Insurance Company, seeking a title policy in the name of Monty Froehlich,

a prospective buyer of Amerimont’s property. Amerimont’s president Thomas Langel

claims that at that time, he told Michael Herrick that if Froehlich subsequently did not

purchase the property, Amerimont wanted the policy in its name. In July 2003, Allied

issued a commitment for title insurance naming Froehlich as the proposed insured. Later

that month or the following month, the deal with Froehlich fell through. Langel testified

that he cannot recall if he told Herrick again when he notified Herrick that the Froehlich

deal was off that he wanted the title policy issued in Amerimont’s name. In August 2003,

Allied issued an amended commitment deleting Froehlich’s name and putting “TBD” (to

be determined) as the proposed insured. The amended commitment contained a clause


1
 In 2005, Allied became The Herrick Company. Michael Herrick was the owner of both Allied
and The Herrick Company.


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that stated: “This Commitment shall be effective only when the identity of the proposed

Insured and the amount of the policy or policies committed for have been inserted in

Schedule A hereof by [Fidelity], either at the time of the issuance of this Commitment or

by subsequent endorsement.” It also indicated an effective date of July 8, 2003 (the same

effective date as the Froehlich commitment). Additionally, and unlike the Froehlich

commitment, the amended commitment deleted the requirement that Fidelity approve

issuance of the policy.

¶4     Allied sent the amended commitment to Amerimont. The commitment specified

that the premium for the policy was $1,423. Along with the commitment, Allied sent a

bill for $600 for title research. Shortly after receiving the commitment and title search

bill, Amerimont sent full payment for both. Allied accepted and cashed both checks.

¶5     In the summer of 2004, Amerimont realized that it had not received a copy of the

policy for its files. It contacted Allied and was told that the policy had not been issued

and that Allied’s file indicated that the property was not insurable. Allied had not

notified Amerimont that it had not issued the policy nor had it returned to Amerimont the

payments Amerimont had made.

¶6     In August 2005, Amerimont sued Fidelity and Allied (by then The Herrick

Company), seeking a declaratory judgment compelling Fidelity to issue the policy, and

damages arising from breach of contract and fraudulent conveyance. In December 2006,

The Herrick Company repaid Amerimont the premium amount of $1,423, explaining that

its acceptance and negotiation of Amerimont’s 2003 premium payment had been an

inadvertent error.


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¶7     In 2007, Fidelity filed a motion for summary judgment claiming that no valid

contract existed between the parties; therefore, it was entitled to summary judgment as a

matter of law. Fidelity asserted that Allied withheld its consent to enter into a binding

policy contract with Amerimont by listing “TBD” as the insured rather than naming

Amerimont.

¶8     The District Court, in its order ruling in favor of Fidelity, relied on the language of

the revised commitment which expressly provided that the commitment would be

effective “only when the identity of the proposed Insured” replaced the “TBD” reference.

The court determined that Amerimont accepted this offer as set forth in the Revised

Commitment when it paid the premium, but it failed to contact Allied with instructions to

change the name of the insured from “TBD” to Amerimont. The District Court pointed

out that the offer did not state that Fidelity would insert as the named insured the name of

the entity paying the premium.

¶9     The court held that consent is an essential element of a contract and that there was

no mutual consent between the parties as to who was to be the named insured under this

policy. The District Court ruled, therefore, that no valid contract existed and Fidelity was

entitled to summary judgment as a matter of law.

¶10    Amerimont filed a timely appeal.

                               STANDARD OF REVIEW

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

same criteria applied by the district court pursuant to M. R. Civ. P. 56(c). A district court

properly grants summary judgment only when no genuine issues of material fact exist,


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and the moving party is entitled to judgment as a matter of law. Pennaco Energy v. Bd.

of Environmental Rev., 2008 MT 425, ¶ 17, 347 Mont. 415, 199 P.3d 191 (citation

omitted).


                                      DISCUSSION

¶12    Did the District Court erroneously grant summary judgment to Fidelity after
       ruling on a question of material fact?

¶13    On appeal, Amerimont argues that the evidence established the existence of a

genuine issue of material fact—did Amerimont instruct Allied to issue the policy in

Amerimont’s name? Amerimont testified that it specifically told Allied that it wished to

take out the title policy in its own name if the Froehlich deal fell though. Herrick, on the

other hand, testified that Amerimont never told him that it wanted the policy issued in its

name, but, rather that it “may want” to get an owner’s policy. Herrick stated that he did

not have the file in front of him at the time he spoke with Langel and gave no thought to

whether a subsequent policy would be in Amerimont’s name or the name of some other

person or entity.

¶14    Amerimont also argued that placement of the name of the proposed insured into

the policy was a condition precedent, and that Fidelity had a good-faith obligation to

insert Amerimont’s name when Amerimont notified it that it wished to be the named

insured, and paid the policy premium.

¶15    Whether, and when, Amerimont instructed Allied to issue the title policy in

Amerimont’s name is a material fact that is disputed by the parties. While the District

Court concluded that Allied did not consent to the contract because it provided a


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commitment designating “TBD” as the proposed insured, Herrick’s testimony

unequivocally establishes that Allied and Amerimont disagree about whether Amerimont

instructed Allied to name it as the insured.       This is a factual dispute relative to

Amerimont’s breach of contract claim that precluded a resolution of this matter on

summary judgment. Moreover, as argued by Amerimont, whether parties consent to a

contract is also question of fact. In re Marriage of Rolf, 2000 MT 361, ¶ 26, 303 Mont.

349, 16 P.3d 345 (“[S]ince consent is an essential element of a contract, § 28-2-102,

MCA, and consent is not mutual unless all the parties agree upon the same thing in the

same sense, § 28-2-303, MCA, the extent and nature of the parties’ consents . . . are

questions of fact which must be first determined.”).

¶16   It is well established that on a motion for summary judgment, all reasonable

inferences must be drawn in favor of the non-movant and the district court may not make

factual findings or resolve factual disputes at the summary judgment stage. Dovey v.

BNSF Ry. Co., 2008 MT 350, ¶ 20, 346 Mont. 305, 195 P.3d 1223. Amerimont raised a

genuine issue of material fact and the District Court erred by granting Fidelity’s motion

for summary judgment.

                                    CONCLUSION

¶17   For the foregoing reasons, we reverse and remand to the District Court for further

proceedings consistent with this Opinion.



                                                /S/ PATRICIA COTTER




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We concur:

/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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