Moot? Not Really
In
2013, Ratliff filed a quiet title
action against Johnson (and others)
to determine the ownership of real property. In November 2013, Ratliff obtained
a default judgment declaring that he was the sole and rightful owner of the
property. Ratliff sold the property and a Warranty Deed transferring title to
the real property from Ratliff to a third-party was recorded on March 5, 2015.
In January 2016, over two years after the
default judgment was entered and nearly one year after the subsequent property
sale, Johnson filed a motion for relief from the judgment, asserting defective
service of the original complaint and a resulting lack of personal
jurisdiction. The trial court determined that Johnson's claim was moot because
of the intervening sale.
The Montana Supreme Court disagreed.
Citing to its own 2012 precedent that the mootness inquiry requires courts to
determine if "it is possible to grant some form of effective relief,"
the Court determined that although the property may not be capable of being
returned to Johnson in the event she prevailed, she might have a restitution
claim against Ratliff or, “depending on the doctrine of lis pendens, may
instead have a claim against the purchaser.” Ratliff v. Schleinz, et al, 2017 MT15N (memorandum-noncitable) (Jan. 24,2017).
Comment:
The
reference to “the doctrine of lis pendens” is most tantalizing to land
title folks. The court seems to be alluding to the common law and equitable
doctrine, rather than the modern-day statutory device. But if “lis pendens”
were applicable, why would Johnson need to proceed against the new owner? The
new owner should be bound by the judgment in the action once the default is
overturned and the litigation proceeds to its conclusion. Just another reason
why title insurers must be vigilant when confirming the reliability of service
in prior litigations!