12/10/2024
DA 23-0554 Case Number: DA 23-0554
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 297N
GARY TAYLOR,
Plaintiff and Appellant,
v.
GEORGE ANTHONY TAYLOR and ANNE MARIE TAYLOR,
Defendants and Appellees.
APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DV-2019-110 Honorable Luke Berger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kevin E. Vainio, Attorney at Law, Butte, Montana
For Appellee:
Caitlin T. Pabst, Pabst Law Firm, Bozeman, Montana
Submitted on Briefs: August 21, 2024
Decided: December 10, 2024
Filed:
__________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Gary Taylor (Gary) appeals a series of Fifth Judicial District Court orders against
him in a property dispute with his son and daughter-in-law. We affirm the court’s orders
quieting title and granting possession and reverse and remand its damages award for further
analysis as directed.
¶3 Gary owned land in Jefferson County, Montana. His son, George Anthony Taylor
(Tony), lives in Nevada with his wife, Anne Marie Taylor (collectively, “the Taylors”).
Gary divided the property into two parcels (B-1 and B-2) via family transfer. On May 13,
2013, Gary conveyed B-1 to Tony via quitclaim deed, which was recorded in Jefferson
County on May 17, 2013. It appears from the record that Gary lived on the property and
still owned B-2.
¶4 Both parties allege different verbal agreements were the basis of the land transfer.
Gary alleges that he transferred the property to Tony via quitclaim deed to use the family
transfer process to develop a subdivision and that Tony orally agreed he would transfer the
land back to Gary once the subdivision was approved. Tony denies any such agreement
but alleges that in September 2017 he verbally agreed Gary would perform general property
2 maintenance and install a private roadway in lieu of paying rent. The record shows that
Gary sold B-2 and continued living on B-1 and that Tony and the B-2 neighbor signed a
one-year easement agreement allowing Gary to access B-1 via B-2. In October 2017, Tony
signed a quitclaim deed transferring ownership of the property to himself and his wife
(Anne Marie) as joint tenants with rights of survivorship.
¶5 On October 13, 2019, Tony sent a letter to Gary via certified mail that restated in
writing their alleged verbal rental agreement and provided that Tony would start charging
Gary monthly rent at $2,000 per month beginning January 1, 2020, because he had failed
to build the road. The Taylors allege that Gary finished installing the road by early
December 2019, although it is unclear from the record who built the road and when it was
finished.
¶6 On December 23, 2019, Gary filed an action to quiet title against the Taylors in
Jefferson County District Court, claiming he acquired the property through adverse
possession and “equitable contract.” The Taylors moved to dismiss the claim, stating Gary
could not prove he had paid taxes all five years as required to succeed on an adverse
possession claim and the statute of frauds precluded a land transfer based on verbal
agreement under §§ 28-2-903(1)(d), and 70-20-101, MCA (requiring an agreement to
transfer an interest in real property be in writing). In his response, Gary asserted only that
there was no statute of frauds issue because a claim for adverse possession falls outside the
statute of frauds. He advanced no other argument, except to say that “after discovery he
may amend his complaint to include claims of fraud and implied or equitable contract.”
3 Because both parties attached documents outside the pleadings to their filings, the District
Court converted the motion to dismiss into a motion for summary judgment under M. R.
Civ. P. 12(d).
¶7 In his briefing on the converted summary judgment motion, Gary again focused on
why adverse possession was not subject to the statute of frauds. On June 18, 2020, the
District Court granted the Taylors’ motion for summary judgment, thus quieting title in
their favor.
¶8 On August 7, 2020, the Taylors filed an eviction action against Gary in Jefferson
County Justice Court alleging claims for possession, breach of contract, and unjust
enrichment. The complaint was verified and signed by the Taylors and included the
October 2019 letter as an exhibit. Gary counterclaimed in the Justice Court action, alleging
claims of “equitable contract” under a promissory estoppel theory, unjust enrichment, and
quantum meruit. The parties then stipulated to consolidate the cases in District Court. Each
side moved for summary judgment. Gary sought partial summary judgment on his
“equitable contract and promissory estoppel” claim and on his unjust enrichment claim.
The Taylors moved for summary judgment on all of their claims and on Gary’s unjust
enrichment claim. On January 11, 2022, the court granted the Taylors’ possession claim
and denied all other summary judgment claims. The Taylors then moved to amend the
court’s January 11, 2022 order under M. R. Civ. P. 60. They argued that the court erred in
denying summary judgment on their breach of contract and unjust enrichment claims
4 because it overlooked two documents that came from the consolidated justice court record.1
Gary opposed. On March 28, 2022, the court granted the Taylors’ motion and awarded
them summary judgment for breach of contract and unjust enrichment.
¶9 After the court issued the Rule 60 order and two years into litigation, Gary’s counsel
withdrew. Tony’s counsel sent a notice to Gary under § 37-61-405, MCA, and Montana
Uniform District Court Rule 10 (MUDCR). On May 18, 2022, the District Court signed a
writ of assistance requiring Gary to move off the property. On June 21, 2022, the District
Court entered judgment in favor of the Taylors and against Gary for $60,000 in unpaid
rent. On July 11, 2022, Gary’s current attorney entered a notice of appearance. Gary then
filed motions to alter or amend the judgment under M. R. Civ. P. 59(e) and 60(a) and
requested the court consider a new statement under penalty of perjury which stated there
was no agreement (oral or written) that Gary would pay rent. He also moved to stay the
judgment and writ of assistance. The District Court denied these motions. Gary moved to
set a scheduling conference on his unresolved claims of equitable contract/promissory
estoppel and unjust enrichment. The District Court determined there was an outstanding
question whether Gary could succeed on his unjust enrichment claim as a matter of law.
On August 28, 2023, the District Court found Gary could not succeed on this claim as a
1 The Taylors titled this motion a Rule 60(b)(6) motion but cited and argued the applicability of Rule 60(a). In their reply, the Taylors acknowledged this typographical error. The parties argued only Rule 60(a)’s applicability in their motions.
5 matter of law.2 The Court entered judgment in favor of the Taylors on the previously
decided issues.
¶10 On appeal, Gary raises four issues, which he has re-framed in his argument body
into fifteen separate issue headings. See M. R. App. P. 12(1)(b) (encouraging parties to
limit the number of issues on appeal to four or fewer). First, we analyze the resolution of
the title and possession issue. We then analyze the resolution of the damage claims.
¶11 This Court reviews appeals of summary judgment orders de novo, applying the
standards in M. R. Civ. P. 56. Barrett, Inc. v. City of Red Lodge, 2020 MT 26, ¶ 6,
398 Mont. 436, 457 P.3d 233. “[T]he district court should grant summary judgment if ‘the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.’” Alfson v. Allstate Prop. & Cas. Ins. Co., 2013 MT 326, ¶ 9, 372 Mont.
363, 313 P.3d 107 (quoting M. R. Civ. P. 56(c)(2)). “Conclusive or speculative statements
are insufficient to raise a genuine issue of material fact.” Gen. Ins. Co. of Am. v. Town
Pump, Inc., 214 Mont. 27, 35, 692 P.2d 427, 431 (1984). “[M]ere disagreement about the
interpretation of a fact or facts does not amount to genuine issues of material fact for
summary judgment purposes.” Gliko v. Permann, 2006 MT 30, ¶ 25, 130 P.3d 155, 331
Mont. 112.
2 The District Court also held that the Taylors could not succeed on a separate unjust enrichment claim for alleged rent payments that Gary was collecting from another person on the property. That issue is not on appeal, and we do not discuss it. It is relevant only to clarify that the District Court resolved all outstanding claims in its August 28, 2023 order. 6 ¶12 Gary does not appeal the District Court’s ruling on his adverse possession claim,
and we do not address it. Gary instead argues that the District Court erred by granting the
Taylors summary judgment for possession of the property before resolving his equitable
claims to the property.
¶13 The statute of frauds prohibits oral agreements to transfer property, subject to certain
exceptions. Sections 28-2-903(1)(d), and 70-20-101, MCA. During the quiet title portion
of the action, Gary failed to develop or advance any equitable claim other than to argue
that adverse possession was not subject to the statute of frauds. It was only after the District
Court quieted title in favor of the Taylors that Gary started to develop a promissory estoppel
claim.
¶14 “The policy behind converting a motion to dismiss into a motion for summary
judgment when a court considers outside information, is to notify the parties of the
additional evidence considered, allow ample opportunity for the parties to prepare
information countering the additional evidence, and avoid surprise.” Lozeau v. Geico
Indem. Co., 2009 MT 136, ¶ 11, 350 Mont. 320, 207 P.3d 316 (citations omitted). Once a
court considers matters outside the pleadings on a motion to dismiss under M. R. Civ.
P. 12(b)(6), “the motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given reasonable opportunity to present all
materials made pertinent to such motion by Rule 56.” Meagher v. Butte-Silver Bow
City-Cnty., 2007 MT 129, ¶ 16, 337 Mont. 339, 160 P.3d 552 (citation omitted); see also
M. R. Civ. P. 12(d).
7 ¶15 The District Court properly followed the required procedures under M. R. Civ.
P. 12(d). It provided notice to the parties and allowed additional briefing. Gary had the
opportunity to develop any number of claims and present evidence as to why his allegations
of an oral agreement to reconvey the property was not subject to the statute of frauds. He
did not do so.
¶16 “[A]n order on summary judgment is a ruling on the merits which terminates a
complainant’s district court proceedings with prejudice,” while dismissal of a complaint is
not a “terminal” ruling and allows the complainant to file his complaint anew as long as it
is done within the period of limitations. Meagher, ¶ 17. Gary’s equitable claims to title of
the property were resolved on June 18, 2020, when the District Court granted summary
judgment to the Taylors and quieted title in their favor. Our de novo review of the record
reveals that Gary did not meet his burden or sufficiently develop his claim at the District
Court level. He did not show why, outside his adverse possession claim, the supposed oral
agreement for Tony to transfer the property back to him was not precluded by the statute
of frauds.
¶17 Gary developed a promissory estoppel argument to contest the Taylors’ possession
only after the District Court quieted title in favor of the Taylors. The District Court
distinguished the case law that Gary argued, reasoned it already had held that Gary did not
have a claim to title, and concluded that Gary had failed to support the contention that he
has any right to possession of the property. The District Court accordingly granted the
Taylors’ claim for possession. The District Court reasoned that because it already had
8 quieted title in favor of the Taylors and Gary had not presented any evidence that allowed
him to continue possessing the property, the Taylors were entitled to an order for
possession. Contrary to Gary’s assertion, the District Court did resolve his equitable claims
to title or possession of the property, both on June 18, 2020, and on January 11, 2022.
¶18 Gary advances several other claims to possession on appeal that he did not develop
before the District Court. We will not address on appeal a theory different from that
advanced in the trial court. Graveyard Creek Ranch, Inc. v. Bell, 2005 MT 172, ¶ 17,
327 Mont. 491, 116 P.3d 779; see also Ellenburg v. Chase, 2004 MT 66, ¶ 18, 320 Mont.
315, 87 P.3d 473 (“This Court has repeatedly held that a party may not change its theory
on appeal from the one advanced in the district court.”). Gary’s arguments for a
constructive trust, implied gift presumption, or any other exceptions to the statute of frauds
or equitable right to possession therefore fail on appeal. He advanced a claim of adverse
possession at the District Court, and belatedly, a claim of promissory estoppel, which the
District Court correctly held failed as a matter of law. Gary’s repeated arguments about
the District Court’s failure to address other legal theories incorrectly conflates his burden
with that of the judge. If Gary wanted to advance other arguments at the District Court as
to why he had an interest to the title in equity, the burden was on him to develop those
arguments at the appropriate time. Flood v. Kalinyaprak, 2004 MT 15, ¶ 33, 319 Mont.
280, 84 P.3d 27 (“We do not consider arguments a party failed to preserve because it is
unfair to fault the trial court on an issue it was never given an opportunity to consider.”).
9 Gary was not deprived of his right to prove something that he failed to allege or support in
the first place.3
¶19 Gary also argues (without citation to case law or supporting authority) that the
premature possession judgment improperly narrowed the scope of his equitable claims. He
maintains that the District Court’s order granting possession to the Taylors was
procedurally improper because the writ of assistance was entered before judgment. M. R.
Civ. P. 70(d) states that “[o]n application by a party who obtains a judgment or order for
possession, the clerk must issue a writ of execution or assistance.” The District Court had
resolved all of Gary’s claims to title or possession of the property by the time it issued the
writ of assistance on May 18, 2022. Gary has not developed this argument or carried his
burden to establish error by the District Court. McCulley v. Am. Land Title Co., 2013 MT
89, ¶ 20, 369 Mont. 433, 300 P.3d 679 (“[W]e 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.”).
¶20 Gary argues that the District Court erroneously issued a writ of assistance within the
mandatory 21-day stay of proceedings required by MUDCR 10. Gary asserts that he was
evicted “before his equitable rights to the property were fully adjudicated,” and summary
judgment in favor of Tony for possession of the property must be reversed. We have held
3 The case on which Gary relies to support these arguments is not on point. In Campanello v. Mercer, this Court held that a constructive trust resulted when the plaintiff and occupier of the property had given the defendant the money to purchase the property. Campanello v. Mercer, 124 Mont. 528, 531, 227 P.2d 312, 313-14 (1951). Unlike in Campanello, Gary did not advance any money to Tony to purchase the property. Gary signed over the property to Tony via quitclaim deed. 10 that when an attorney does not comply with the notice requirements, the proceedings in the
case are tolled until notice requirements are met. See Quantum Elec., Inc. v. Schaeffer,
2003 MT 29, ¶ 21, 314 Mont. 193, 64 P.3d 1026. The Taylors’ attorney complied with the
notice requirements. Any rights Gary had to the property were fully adjudicated when he
was represented by his first counsel. Gary is incorrect that he was evicted before his
equitable rights to the property were fully adjudicated. Because Gary has not established
any right to title or to possession of the property, we will not disturb the District Court’s
writ of assistance.
¶21 Having held that the District Court properly quieted title in favor of the Taylors and
did not err in its handling of Gary’s equitable claims to title or possession, we now turn to
the competing unjust enrichment claims. Gary alleges that, if he does not have title to the
property, then the Taylors were unjustly enriched by Gary’s tax payments and
improvements to the property. The Taylors argue that Gary breached the contract to install
a road within a year and was unjustly enriched by his failure to pay rent.
¶22 Gary first argues that the District Court erred by using M. R. Civ. P. 60 to grant the
Taylors summary judgment on their breach of contract and unjust enrichment theory.
Because we reverse and remand the District Court’s order for unpaid rent on other grounds,
we do not address this argument.
¶23 Gary next argues the District Court erred by not allowing him to present additional
evidence when it denied his motions under M. R. Civ. P. 59(e) and 60(a). We review a
11 trial court’s ruling on Rule 59(e) and Rule 60(a) motions for abuse of discretion. In re
Marriage of Schoenthal, 2005 MT 24, ¶ 9, 326 Mont. 15, 106 P.2d 1162.
¶24 A motion to alter or amend “cannot be used to raise arguments which could, and
should, have been made before judgment issued [or] routinely give litigants a second bite
at the apple.” Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 76, 304 Mont. 356, 22 P.3d 631.
The October 2019 letter was attached as an exhibit in the District Court documents and was
authenticated in the Justice Court file. Gary’s attorney during the summary judgment
proceedings in the District Court was the same attorney in Justice Court who responded to
the complaint with the authenticated documents. The District Court correctly reasoned that
the information on which Gary now relies was relevant prior to its first ruling, Gary was
aware of that information at the time, and his request is more akin to asking for a second
chance after seeing the court’s thoughts. The District Court did not abuse its discretion in
denying his motions to present additional evidence.
¶25 Gary last argues that the District Court erred when it granted summary judgment on
the Taylors’ claims for their contract and unjust enrichment for unpaid rent and concluded
as a matter of law that Gary could not recover for improvements made on the property.
¶26 The Taylors advanced a breach of contract claim based on an oral agreement to
build the road and a separate claim of unjust enrichment for failure to pay rent. Though it
initially denied summary judgment on these claims, the District Court’s March 28, 2022
order found that the October 2019 letter supported the existence of a contract and thus “the
terms of the contract are also deemed valid.” The court granted summary judgment to the
12 Taylors on both their breach of oral contract and unjust enrichment claims. The court
rejected Gary’s argument that the Taylors failed to establish terms of the rental agreement
or damages for unjust enrichment for failure to pay rent. When the Taylors requested entry
of judgment in the amount of $60,000, they relied on the terms of the October 2019 letter,
claiming that Gary had missed thirty rent payments as of June 2022 at $2,000 per month.
Accepting this calculation, and without further explanation, the District Court entered
judgment against Gary “in the amount of $60,000 for unpaid rent[,]” plus additional
amounts for fees and costs.
¶27 Recovery under a theory of unjust enrichment is only available absent a legal
contract. Missoula Cnty. v. State, 2024 MT 98, ¶ 31, 416 Mont. 340, 547 P.3d 1268; see
also Mont. Dig. LLC v. Trinity Lutheran Church, 2020 MT 250, ¶ 11, 401 Mont. 482, 473
P.3d 1009). “This is because a ‘valid contract defines the obligation of the parties as to
matters within its scope, displacing any inquiry into unjust enrichment.’” Missoula Cnty.,
¶ 31 (quoting Ass’d Mgmt. Servs. v. Ruff, 2018 MT 182, ¶ 67, 392 Mont. 139, 424 P.3d
571). Unjust enrichment thus would apply in this situation “only when a party renders a
valuable performance or confers a benefit upon another under a contract that is invalid,
voidable, or otherwise ineffective to regulate the parties’ obligations.” Missoula Cnty.,
¶ 31 (citations and internal quotations omitted).
¶28 “To prevail on a claim of unjust enrichment, the aggrieved party must establish that
(1) a benefit was conferred upon the recipient by the claimant; (2) the recipient knew about
13 or appreciated the benefit; and (3) the recipient accepted or retained the benefit under
circumstances rendering it inequitable for the recipient to do so.” Missoula Cnty., ¶ 31.
¶29 The Taylors allege the parties had a verbal agreement for construction of the road
in lieu of rent. The October 2019 letter on which they rely, however, does not define the
duration of the alleged agreement. The assessment for thirty months’ rent presents its own
statute of frauds problem. See 28-2-903(1)(d), MCA (an agreement for a leasing period
longer than one year is invalid if not in writing and subscribed by the party to be charged).4
If the damages were because of Gary’s failure to build a road in lieu of rent, then it is
additionally unclear why Gary was charged $60,000 for unpaid rent when, allegedly, the
road has been completed.5 It is possible, but not explained in the record or in the Taylors’
briefing on appeal, that the court based its damage award on twelve months of missed
contractual rental payments per the oral agreement and eighteen months in the same
amount for unjust enrichment. But the court did not articulate the basis for its award and
made no findings to support the amount of any unjust enrichment.
¶30 Regarding Gary’s competing claim, the District Court reasoned that Gary could not
recover damages because under § 70-28-110, MCA, he could not show color of title and
improvements made in good faith. Gary accurately argued before the District Court,
4 The Taylors argue this oral agreement is not subject to the statute of frauds because the road was supposed to be constructed within a year, but then do not explain why the finding for 30 months of unpaid rent is not subject to the statute of frauds prohibitions, thus highlighting the confusion as to what the terms of the alleged contract were. 5 The Taylors also advance a landlord-tenant theory to recover damages. We have considered these arguments and conclude that the provisions of Title 70, Chapter 24, MCA (the residential Landlord and Tenant Act of 1977) do not apply here. 14 however, that our holding in Pritchard Petroleum Co. may allow him to recover some of
the money spent making improvements on the land. Pritchard Petroleum Co. v. Farmers
Coop. Oil & Supply Co., 121 Mont. 1, 190 P.2d 55 (1948). Pritchard held that “a good
faith trespasser who placed permanent improvements on the land may counterclaim in
equity for damages setoff to ‘recoup the value of the improvements’ to the extent they
‘enhanced the value of the land’ regardless of limitations of § 70-28-110, MCA.” Davis v.
Westphal, 2017 MT 276, ¶ 18, 389 Mont. 251, 405 P.3d 73 (citing Pritchard, 121 Mont. at
15-16, 190 P.2d at 62-63).6 If Gary does owe damages for wrongfully occupying the land
without an agreement of rent payment, he may recover a setoff if he can prove that, as a
good faith trespasser, he made the improvements and that the improvements enhanced the
value, not to exceed the damages amount assessed for wrongful occupancy of the property.
Pritchard, 121 Mont. at 15-16, 190 P.2d at 62-63.
¶31 We affirm the District Court’s order quieting title in favor of the Taylors and
granting them possession. We reverse and remand for the District Court to make additional
findings and conclusions regarding the terms of the alleged contract and the proper
damages for its breach. If the District Court determines that the Taylors cannot recover the
amount of their claimed damages under a contract theory, it must make findings on the
elements of unjust enrichment. Gary may offset any damages assessed if he can prove the
required elements under Pritchard. We reverse only for the District Court to consider the
6 Pritchard interpreted a statutory remedy allowing recovery for wrongful occupancy under what is now codified as § 27-1-318, MCA. See Martin v. Randono, 191 Mont. 266, 623 P.2d 959 (1981). The Taylors did not advance an argument under that statute, and we do not address it. 15 evidence and arguments already presented or to take additional evidence as the District
Court deems necessary, and to develop its findings and conclusions.
¶32 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent.
/S/ BETH BAKER
We Concur:
/S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ JIM RICE