First United, Inc. v. Chicago Title Insurance Company, Hot Springs Title Company
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FIRST UNITED, INC. v. CHICAGO TITLE INSURANCE
COMPANY, Hot Springs Title Company
05796
___ S.W.3d ___
Supreme Court of Arkansas
Opinion delivered June 1, 2006
1.
INSURANCE – DEFECT IN TITLE – POTENTIAL LIABILITY FOR JUDGMENT DID NOT
CONSTITUTE DEFECT IN TITLE. – Where the appellant had the right to possess, control,
and dispose of the property, if it chose to take title to the land, and where there were
no conflicting claims to the property, the supreme court held that no defect in title
existed just because the pending judgment made the property unattractive to potential
purchasers; a loss in real estate value as a result of a purchaser’s potential liability as
a successorininterest under the Arkansas TimeShare Act, Ark. Code Ann. §§ 1814
101 – 1814703 (Repl. 2003), did not constitute a defect in title for purposes of title
insurance.
2.
PROPERTY –
MARKETABILITY OF LAND
–
JUDGMENT DID NOT MAKE LAND
UNMARKETABLE. – While it was possible to hold perfect title to land that was
valueless, where the appellant failed to appreciate the distinction between land that
was unmarketable and title that was unmarketable, and where the appellant’s
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DICKEY, J. 6
FIRST UNITED, INC. v. CHICAGO TITLE INS. CO.
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arguments emphasized factors that related to the lack of the economic value of the
land itself, rather than to a title that was unmarketable, the supreme court held that the
judgment in the case did not make title to the land unmarketable.
3.
APPEAL & ERROR – ADDITIONAL QUESTIONS NOT ADDRESSED. – Because the supreme
court concluded that the judgment was not covered by the title insurance policy,
which insured against defects in title and unmarketability of title, as opposed to the
unmarketability of the property itself, the supreme court did not address the additional
questions raised by the appellant of whether specific exclusions within the policy
applied to the judgment, and the trial court’s ruling was affirmed.
4.
PRINCIPAL & AGENT – ACTION AS AN AGENT – SUMMARY JUDGMENT WAS PROPER. –
The evidence was undisputed that appellee Hot Springs Title Company, which
actually issued the title insurance policy, informed appellant that it was acting as an
agent for its principal, appellee Chicago Title Insurance Company, which created the
policy, and there was no evidence that appellee Hot Springs Title Company did
anything that could be construed as being outside the scope of its agency in issuing
the title to the property to appellant; where appellant failed to meet proof with proof
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FIRST UNITED, INC. v. CHICAGO TITLE INS. CO.
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in regard to the agency question and where appellant did not demonstrate the
existence of a material issue of fact, the supreme court concluded that appellee Hot
Springs Title Company was acting as an agent of appellee Chicago Title Insurance
Company and affirmed the circuit court.
Appeal from Garland Circuit Court; Edward T. Smitherman, Judge; affirmed.
Coplin and Heuer, by: Sam T. Heuer, for appellant.
Rose Law Firm, by: Garland J. Garrett, for appellee Chicago Title Insurance
Company.
James M. Duckett and Hal Joseph Kemp, P.A., for appellee Hot Springs Title
Company.
BETTY C. DICKEY, Justice. First United, Inc., appeals the order of the Garland County
Circuit Court granting the motion for summary judgment by appellees, Chicago Title
Insurance Company and Hot Springs Title Company, on the grounds that a title insurance
policy written and issued by the appellees did not cover First United’s potential liability as
a successorininterest under the Arkansas Time Share Development Act. Jurisdiction in this
case is pursuant to Ark. Sup. Ct. R. 12(b)(1). We find no error and affirm.
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FIRST UNITED, INC. v. CHICAGO TITLE INS. CO.
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Page 4
The appellant, First United, Inc., owns a mortgage on a parcel of land in Garland
County that is insured by a title insurance policy written by appellee Chicago Title Insurance
Company. The policy was issued by appellee Hot Springs Title Company. A time share
development sits on the land, which is surrounded by the Lake Hamilton Resort and is
adjacent to a hotel. The time share development has been the subject of extensive litigation
over a period of years, which is chronicled in our decisions of National Enterprises, Inc. v.
Kessler, 363 Ark. 167, ____ S.W.3d ____ (2005), and National Enterprises, Inc. v. Lake
Hamilton Resort, Inc., 355 Ark. 578, 142 S.W.3d 608 (2004). There was a license agreement
between the original developer of the time share development and the ownership of the hotel,
whereby purchasers of time share interests were entitled to use the amenities of the hotel.
The time share developer sold the time share interests to purchasers with the promise that
they would be able to continue to use the amenities of the hotel. Eventually, both the time
share development and the hotel were sold at foreclosure. Litigation ensued, and on August
30, 1994, the Garland County Circuit Court ruled that the foreclosures had terminated the
license agreement. No longer able to use the amenities, the time share purchasers filed a
classaction suit against the time share developer’s successorsininterest for fraud. After a
long and tortured litigation, the Garland County Circuit Court ruled that the successorsin
interest, pursuant to the Arkansas TimeShare Act, Ark. Code Ann. § 1814101 – 1814703
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(Repl. 2003), owed damages of approximately $1.6 million, due to the fraud of the original
developer. That judgment was affirmed by this court in National Enterprises, Inc. v. Kessler,
supra. First United is a potential successorininterest to the original developer, although it
has not taken title to the property. If First United should take title, it would be exposed to
liability for the judgment, pursuant to our interpretation of the TimeShare Act.
On November 18, 2004, First United filed a complaint in the Garland County Circuit
Court, alleging that the appellees had breached the title insurance policy. The appellees
moved for summary judgment, and on June 10, 2005, the court granted the motion for
summary judgment, and dismissed the appellant’s claim with prejudice. First United appeals
that ruling.
The first point on appeal is: The trial court erred in granting summary judgment to
Chicago Title Company.
Summary judgment should be granted only when it is clear that there are no genuine
issues of material fact to be litigated, and the party is entitled to judgment as a matter of law.
Riverdale Dev. Co. v. Ruffin Bldg. Sys., Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). When
reviewing a grant of summary judgment, this court views the evidence in the light most
favorable to the nonmoving party, resolving all doubts and inferences against the moving
party. Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). Any ambiguities in an
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insurance policy are construed liberally in favor of the insured. Lewis v. MidCentury Ins.
Co., 362 Ark. 591, ___ S.W.3d ___ (2005).
The issue to be resolved in this case is whether the policy contractually obligates
Chicago Title to reimburse First United in the event that First United takes title to the land
and therefore becomes liable for the judgment. Thus, the decisive question is whether the
policy covers the judgment. The policy, in pertinent part, provides:
Subject To The Exclusions From Coverage, The Exceptions From
Coverage Contained In Schedule B And The Conditions And Stipulations,
Chicago Title Insurance Company, a Missouri corporation, herein called the
Company, insures, as of the Date of Policy shown in Schedule A, against loss
or damage, not exceeding the amount of insurance stated in schedule A,
sustained or incurred by reason of:
2. Any defect in or lien or encumbrance on the title.
3. Unmarketability of title. . . .
The appellant asserts that the liability for the judgment that it would assume, upon
taking title to the land, constitutes a defect in title, which is covered by the policy. The
appellees contend that statutory liability or loss arising from ownership is not a “defect”
covered by the policy. Defective title is defined as “a title that cannot legally convey the
property to which it applies, usually because of a conflicting claim.” Black’s Law Dictionary
1492 (7th ed. 1999).
In support of their argument, the appellees cite Chicago Title Insurance Co. v. Kumar,
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24 Mass. App. Ct. 53, 506 N.E.2d 154 (1987). There, a purchaser bought a tract of land
which harbored an ongoing, unknown, and illegal environmental hazard, and the court held
that the purchaser’s statutory liability for the hazard did not amount to a “defect in, or lien
or encumbrance on title.” Kumar, 24 Mass. App. Ct. at 56, 506 N.E.2d at 156. The appellees
also direct us to Hocking v. Title Insurance & Trust Co., 37 Cal. 2d 644, 234 P.2d 625
(1951), where the court held that the fact that the land purchased was in a state of non
compliance with existing statutes did not constitute a defect in title, even though that fact had
an adverse effect on the economic value of the land. In Hocking, the court noted, “One can
hold perfect title to land that is valueless; one can have marketable title to land while the land
itself is unmarketable.” Hocking, 37 Cal. 2d at 651, 234 P.2d at 629.
In the present case, the appellant does not dispute that, should it choose to take title
to the land, it would have the right to possess, control, and dispose of the property. There are
no conflicting claims to the property. Instead, the appellant is simply asserting that because
the pending judgment makes the property unattractive to potential purchasers, a defect in title
exists. We do not agree, and for the foregoing reasons, we hold that the loss in real estate
value as a result of a purchaser’s potential liability as a successorininterest under the Time
Share Act does not constitute a “defect” in title for purposes of title insurance.
The appellant also contends that the title is unmarketable, while the appellee argues
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that the appellant is confusing the marketability of the title with the marketability of the land
itself. In support of its argument, the appellees direct us to a treatise, Powell on Real
Property, § 92.05, which states that, “[M]odern cases emphasize the differences between
marketability of title and marketability of land.” In further support of the distinction, the
appellant cites Kumar, supra, where the court noted that marketability of title related to
“defects affecting legally recognized rights and incidents of ownership” and was distinct
from the lack of economic marketability of the land itself. The court in Hocking, supra, also
emphasized the distinction, stating,
Although it is unfortunate that plaintiff has been unable to use her lots for the
building purposes she contemplated, it is our view that the facts which she
pleads do not affect marketability of her title to the land, but merely impair the
market value of the property. She appears to possess fee simple title to the
property for whatever it may be worth. . . .
Hocking, 37 Cal. 2d at 652, 234 P.2d at 62930. The appellees also cite Lick Mill Creek
Apartments v. Chicago Title Insurance Co., 231 Cal. App. 3d 1654, 283 Cal. Rptr. 231
(1991), which relied on Kumar and Hocking to illustrate the distinction between the
marketability of land, as opposed to marketability of title.
Similarly, the appellant here appears to possess fee simple title to the land, whatever
it might be worth, and we agree that it is possible to hold perfect title to land that is
valueless. The appellant has failed to appreciate the distinction between land that is
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FIRST UNITED, INC. v. CHICAGO TITLE INS. CO.
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unmarketable and title that is unmarketable, and its arguments emphasize factors that relate
to the lack of economic value of the land itself, rather than to a title that is unmarketable. The
appellant is free to possess and control the land, or to sell it to whatever purchaser desires
to buy it. Accordingly, we hold that the judgment in this case does not make title to the land
unmarketable. Because we conclude that the judgment is not covered by the policy, which
insures against defects in title and unmarketability of title, as opposed to the unmarketability
of the property itself, we need not address the additional questions raised by the appellant
of whether specific exclusions within the policy apply to the judgment. The trial court’s
ruling on this point is affirmed.
The appellant’s second point on appeal is: The trial court erred in granting summary
judgment to Hot Springs Title Company
First United argues that Hot Springs Title, which actually issued the policy, was not
acting as an agent of Chicago Title, which created the policy. There is undisputed evidence
that Hot Springs Title informed First United that it was acting as an agent for its principal,
Chicago Title, and no evidence that Hot Springs Title did anything that could be construed
as being outside the scope of its agency in issuing the title to First United. An agent that acts
within the scope of its authority for a disclosed principal is not liable on an insurance
contract. McCullough v. Johnson, 307 Ark. 9, 816 S.W.2d 886 (1991). Once a moving party
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has established a prima facie entitlement to summary judgment, the opposing party must
meet proof with proof and demonstrate the existence of a material issue of fact. Wallace v.
Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). First United has not met proof with proof in
regard to the agency question, and has not demonstrated the existence of a material issue of
fact. Thus, we conclude that Hot Springs Title was acting as an agent of Chicago Title and,
accordingly, we affirm this point on appeal.
Affirmed.
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DICKEY, J. 6
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