Dew v. Dower

888 P.2d 421, 269 Mont. 286, 51 State Rptr. 1388
CourtMontana Supreme Court
DecidedDecember 16, 1994
Docket94-232
StatusPublished
Cited by2 cases

This text of 888 P.2d 421 (Dew v. Dower) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dew v. Dower, 888 P.2d 421, 269 Mont. 286, 51 State Rptr. 1388 (Mo. 1994).

Opinions

JUSTICE GRAY

delivered the Opinion of the Court.

Robert Dew appeals from the findings of fact, conclusions of law, and final judgment of the Eighth Judicial District Court, Cascade County, concluding that he was entitled to fifty percent of the personal damages arising from Alice Dower’s fraud and determining the amount of his damages to be approximately $36,000. We affirm the District Court’s conclusion regarding the percentage of damages to [288]*288which Robert Dew is entitled, but reverse and remand for recalculation of the amount of those damages.

Prior to August 1983, Robert and Sally Dew acquired six tracts of land in a subdivision south of Great Falls, Montana, from the Dowers under six individual contracts for deed. Each tract, consisting of slightly more than twenty acres, sold for $l,000/acre. The Dews entered into a contract for deed for a seventh tract in February 1984. Alice Dower, a licensed real estate broker, represented to Robert Dew that the purchase price was based on plans to upgrade two access roads to “county grade” standards.

When the Dowers failed to improve the access roads to county grade standards, the Dews and other purchasers brought suit against the Dowers alleging, among other things, fraud. Their allegations of fraud were based on Alice Dower’s representations concerning improvements to be made to the roads. The Dowers moved for a directed verdict at the close of the Dews’ case-in-chief and, at that point, the Dews’ attorney asked the District Court to dismiss Sally Dew’s claims. The court dismissed her claims with prejudice and entered a directed verdict in favor of the Dowers. Robert Dew appealed. We reversed the directed verdict and remanded the case for a new trial, holding that a jury question existed on the issue of whether Alice Dower fraudulently induced Robert Dew into purchasing the tracts. Dew v. Dower (1989), 237 Mont. 476, 480, 774 P.2d 989, 991.

In 1990, between the first appeal and the second trial, Sally Dew quitclaimed her one-half interest as co-tenant in the seven tracts to Robert Dew, resulting in his one hundred percent ownership of the tracts. On remand, the District Court found that Alice Dower had defrauded Robert Dew and awarded him one hundred percent of the damages. The Dowers appealed, arguing that Dew was not entitled to one hundred percent of the damages because he had owned only a one-half interest in the total fraud claims before the District Court. We reversed the District Court and remanded for recalculation of damages for plaintiffs who were before the court. Dew v. Dower (1993), 258 Mont. 114, 128, 852 P.2d 549, 558 (.Dew II).

On remand, the District Court concluded as a matter of law that Robert Dew, by virtue of his one-half interest in the property, was entitled to one-half of the damages resulting from Alice Dower’s fraud. The District Court offset the balances owing on the individual contracts for deed by the corresponding damages and prejudgment interest. Robert Dew appeals.

[289]*289Robert Dew’s first assertion of error relates to the District Court’s conclusion of law that Robert, the sole owner of the property at the time of judgment against the Dowers, was entitled to only fifty percent of the damage award. Dew argues that, as the sole owner of the property at the time of judgment, he is entitled to one hundred percent of the damages resulting from Dower’s fraud. We disagree.

The District Court’s conclusion that Robert Dew was not entitled to one hundred percent of the total damages was premised on two bases. First, because Sally Dew had withdrawn her claims against the Dowers and the court had dismissed those claims with prejudice during the first trial, she retained no right to damages and, thus, the quitclaim deeds did not result in Robert Dew acquiring Sally’s right to claim damages. Second, the court relied on our decision in Van Ettinger v. Pappin (1978), 180 Mont. 1, 588 P.2d 988, in concluding that Robert had acquired Sally’s interest in the properly knowing of the claimed fraud and, as a result, had waived the right to bring an action for damages based on that interest. We review a district court’s conclusion of law to determine whether it is correct. Pacificorp v. Dep’t of Revenue (1992), 254 Mont. 387, 397, 838 P.2d 914, 920.

Regarding the first basis for the District Court’s conclusion, Robert Dew argues that although Sally Dew was not defrauded, she had not relinquished her right to transfer ownership interest in the property to Robert Dew. Therefore, when Sally Dew quitclaimed her interest in the property to Robert Dew, he obtained the right to recover one hundred percent of the property damages arising from the fraud. Robert Dew misunderstands our holding in Dew II.

Our decision in Dew II included the implied, if not direct, holding that this was an action for personal damages, not property damages, arising from Alice Dower’s fraud. We specifically stated that “[wlithout deciding whether a single co-tenant may sue for tort damages for injury to the property itself and recover the entire amount, we hold that the court in this case erred in awarding damages for injury to the personal interests of per sons who were not plaintiffs at the time of judgment.” Dew II, 852 P.2d at 557 (emphasis added).

Sally Dew’s fraud claims were the same as those brought by Robert Dew and were in the nature of a personal action. See Dew II, 852 P.2d at 557. On dismissal of Sally Dew’s claims with prejudice, however, the District Court lost jurisdiction over her interest in the property. Dew II, 852 P.2d at 557; citing Rule 41(a), M.R.Civ.P., and Miller v. Northern Pac. Ry. (1904), 30 Mont. 289, 296, 76 P. 691, 694. That dismissal had the same effect as if the District Court had rendered a [290]*290judgment against Sally Dew on the merits of her fraud claim. See Higham v. City of Red Lodge (1991), 247 Mont. 400, 403 ,807 P.2d 195, 197. Accordingly, any interest that Sally Dew had for personal damages as a co-tenant ceased to exist at that point.

Furthermore, Sally Dew’s lack of an interest in personal damages effectively prevents her from transferring such an interest to Robert Dew via quitclaim deeds. It is axiomatic that a “quitclaim deed transfers and is designed to transfer only such title and interest as the grantor had when [the grantor] delivered the title.” Lodge v. Thorpe (1947), 120 Mont. 226, 229, 181 P.2d 598, 599-600. When Sally Dew quitclaimed her interest in the seven parcels to Robert Dew, she possessed a fifty percent ownership interest in the property, but no longer possessed any right to sue for personal damages arising from Alice Dower’s fraud. We conclude that while Robert Dew succeeded to Sally Dew’s fifty percent ownership interest in the tracts, he did not, and could not, succeed to her nonexistent right to sue for personal damages.

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Cite This Page — Counsel Stack

Bluebook (online)
888 P.2d 421, 269 Mont. 286, 51 State Rptr. 1388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dew-v-dower-mont-1994.