Johnston v. Flying S Title

• Court: Montana Supreme Court
• Decided: April 9, 2024
• Docket: DA 22-0486
• Status: Unpublished

Opinion

ORIGINAL 04/09/2024

IN THE SUPREME COURT OF THE StATE OF MONTANA Case Number: DA 22-0486

DA 22-0486

GILBERT R. JOHNSTON and JUDITH A. JOHNSTON; STEPHEN R. GIBBS; SCOTT SHONE; DONALD S. SMITH and BRENDA J. SMITH, individually and as Trustees of the DONALD S. SMITH AND BRENDA J. SMITH AB LIVING TRUST; RACHELLE AMBER McCRACKEN; MICHAEL ALLEN McCRACKEN; SEAN JUSTIN SMITH; GERALD B. WOODAHL and ' SUSAN A. WOODAHL; JEFFREY M. HOLLENBACK; JIM S. FERGUSON; ERIC W. SMART and STEPHANIE NICOLE SMART; NANCY CORDIAL; EDS INVESTMENTS, LLC, an Arizona limited liability cornpany; NEWS DEVELOPMENT, LLC, a Montana , ORDER limited liability company; and JCO PROPERTlES, LLC a Montana limited liability cornpany,

Plaintiffs and Appellants,

v.

FLYING S TITLE & ESCROW, INC. f/k/a FIRST FILED AMERICAN TITLE COMPANY, APR - 9 2024 Bowen Greenwood Defendants and Appellees. Clerk of Supreme Court State of Montane

Gilbert and Judith Johnston et al. (collectively "Appellants") have filed a Petition

for Rehearing of this Court's Opinion entered February 42022. See Johnston v. Flying

S Title & Escrow, Inc., 2024 MT 39, 415 Mont. 332. Appellee Flying S Title & Escrow,

Inc. (Flying S), has responded in opposition.

This Court "will consider a petition for rehearing prèsenteld only upon [a showing]

[t]hat it overlooked some fact material to the decision; What it oterlooked some question presented by counsel that would have proven decisive to the case; or What its decigion

conflicts with a statute or controlling decision not addressed by the supreme court." M. R.

App. P. 20(1)(a). "A petition for rehearing is not a forum in which to rehash arguments

made in the briefs and considered by the Court." State ex rel. Bullock v. Philip Morris,

Inc., 217 P.3d 475, 486, 2009 Mont. LEXIS 443 (citing M. R. App. P. 20(1)(a)). Having I reviewed the Petition, we conclude that Appellants have n@t demonstrated the existence

any of the criteria, including an overlooked fact or a conflict with controlling authority,

which would warrant rehearing. M. R. App. P. 20(1)(a)(i)-(iii).

Appellants contend this Court rnisapprehended the fabts of the case when we stated

that "Flying S . . . provided, as it agreed, title insurance for, the transaction completed by

Appellants to purchase the lots." Opinion, ¶ 22 (empimsis added). According to

Appellants, no policy was ever issued for insurance on the lots,sand thus, the Court erred

in determining that Appellants had received title insurance for the lots. This reasoning is

misguided, however, as the existence of title insurance fot the lints is not dependent on

whether Flying S delivered a physical policy for the lots. Rathe'r, title insurance for the

lots existed by virtue of the parties entering a contract fir issuance of that insurance

precisely as predicated in the Lot Commitments, and closing thereon. Further, this case

did not involve a claim for title insurance of the lots, but for insurance of the parcels, which

the Opinion concluded did not exist, -and which Appellants do not challenge. Appellants'

remaining arguments are predominantly efforts to relitigate arguments already resolved the

Opinion and thus are unsuited for a rehearing. Therefore, 2 1 1

IT IS ORDERED that the Petition for Re iearing is DENIED and DISMISSED.

The Clerk of the Supreme Court is directe I to.provide a copy of this Order to counsel 1 of record. ctr , I DATED this I 4—day of April, 2024.

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