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Sometimes a case comes along
that shows the folly of legalese better than any
made-up example. This is one. It's Kohlbrand
v. Ranieri, 2005-Ohio-295. It was decided
Jan. 28, and will soon be published. The
footnotes (citations only) have been omitted for
space reasons.
Mark P. Painter,
Judge
In both life and law,
sometimes the sum of the parts is greater than
the whole. And sometimes it is less. In the
present case, it is exactly the same.
Third-party
defendant-appellant Monfort Supply Co. appeals
the trial court's grant of summary judgment. We
affirm.
This dispute centers on
whether Monfort has the duty to defend and
indemnify the third-party plaintiffs-appellees,
Giovanni, Susanne, Leonardo, Eliza, Nicola, and
Tracy Ranieri, in a dispute about a real estate
conveyance and a long-existing easement. The
procedural complexity leading up to the current
dispute belies the simplicity of the answer:
when one party warrants that it will indemnify
another "against all claims of all
persons" and does not make any exceptions
to that guarantee - well, we think the answer
should be obvious.
I.
A Parcel, A Pipeline, And A Promise
Nearly 50 years ago - all the
way back in 1955 - Monfort purchased a parcel of
land from Norbert and Edna Frey, and the deed
was properly recorded in Hamilton County. The
Frey deed stated that the parcel was subject to
an "easement for construction and
maintenance of an oil pipeline to defendant
Mid-Valley Pipeline Co., as recorded in Deed
Book 2832, Page 38 of the Hamilton County Ohio
Deed Records."
The pipeline was indeed under
the land (it ran from Texas to Lima, Ohio), but
the easement was not recorded in Deed Book 2832.
It was actually in Deed Book 2382. The easement
called for a 50-foot area surrounding the
pipeline to remain free from any obstruction so
that Mid-Valley could obtain access to and
repair the pipeline if necessary.
Monfort subdivided the land
into smaller parcels suitable for single-family
homes. In 1986, Monfort sold the lot involved in
this case to the Ranieris. That deed warranted
that the "title so conveyed is Clear, Free
and Unincumbered [sic]; And further, That [Monfort]
does Warrant and will Defend the same against
all claims of all persons whomsoever." The
deed also described an easement for septic
purposes, but did not contain any description of
the pipeline easement. It also referred to a
plat book, which, in turn, referred to an
easement for a pipeline "as recorded in D.B.
2832, PG 38." Again, the easement was
actually in Deed Book 2382, not 2832.
In 2001, plaintiffs Gerald
and Deborah Kohlbrand purchased the same plot
from the Ranieris. Their deed made no mention of
the pipeline easement. Soon after their
purchase, the Kohlbrands discovered the pipeline
easement. They sued the Ranieris and eventually
sued Mid-Valley, alleging that fraudulent
nondisclosure of the pipeline easement had
resulted in damages. In response, the Ranieris
filed a third-party complaint against Monfort,
claiming that Monfort was obligated to indemnify
and defend the Ranieris because of the general
warranty contained in the deed to them. The
Ranieris moved for, and were granted, summary
judgment on this limited issue. The trial court
was correct.
II.
Legalism At Its Lowest
Monfort now appeals, claiming
in its sole assignment of error that summary
judgment was inappropriate.
We review summary-judgment
determinations de novo, without deference to the
trial court's ruling. Summary judgment is
appropriately granted when (1) there is no
genuine issue of material fact; (2) the moving
party is entitled to judgment as a matter of
law; and (3) it appears from the evidence that
reasonable minds can only come to a conclusion
adverse to the non-moving party when viewing the
evidence in the light most favorable to the
non-moving party.
The facts of this case are
basically undisputed. While the issues of
damages and attorney fees remain undecided,
neither is before us in this appeal. All that
concerns us is whether Monfort has a duty to
defend and to indemnify the Ranieris in the
underlying case. Monfort now argues that the
deed referred to the plat, which referred to the
easement, which meant that the easement was
incorporated by reference into the deed. Not so.
We decline to impose a rule
that would require grantees to skip around the
county recorder's office looking for any
encumbrances that might exist on a prospective
purchase where there is no mention of any
encumbrance - and especially when there is a
warranty against any encumbrance. Deeds
subject to an easement should disclose the
easement on the face of the deed. If Monfort had
wanted to create an exception for the pipeline
easement, it simply could have added
"subject to" and referred to the
easement in the general warranty section of the
deed. But it did not.
And even if the plat
reference had been incorporated by reference,
the reference to the easement in the plat was
wrong.
III.
The Normans Strike Again
Monfort contends,
"Although a 'clear title' is one that is
not subject to any restrictions, the case at bar
involved a 'free and clear' title, which is the
same as a marketable title." So, according
to Monfort, a free and clear title is worse than
a clear title. Say what?
Would that Harold had not
lost the Battle of Hastings.
Free and clear
mean the same thing. Using both is an
unnecessary lawyerism. Free is English; clear
is from the French clere. After the
Norman Conquest, English courts were held in
French. The Normans were originally Vikings, but
after they conquered the region of Normandy,
they became French; then they took over England.
But most people in England, surprisingly enough,
still spoke English. So lawyers started using
two words for one and forgot to stop for the
last nine hundred years.
So free and clear do
not mean separate things; they mean, and were
always meant to mean, exactly the same thing.
Just as null and void and due
and payable mean the same thing. All of
these couplets are redundant and irritating
lawyerisms. And they invite just what has
happened here - an assertion that they somehow
have different meanings.
The Norman Conquest was in
1066. We can safely eliminate the couplets now.
And this case involved a
"clear, free and unincumbered" title.
Would Monfort argue that this, too, provides
less protection than a clear title? Black's Law
Dictionary defines "clear" as
"free from encumbrances and claims."
And "incumbrance" means the same thing
as "encumbrance," so we can deduce
that "unincumbered" means the same
thing as "unencumbered." So it is only
logical that "clear, free and
unencumbered" is a mere redundancy for
clear or for "free from encumbrance."
An easement for an oil
pipeline is certainly an encumbrance. And any
title that is subject to an easement is not a
clear title. Despite its warranty to the
contrary, Monfort did not actually convey the
land "free, clear and unencumbered,"
and it therefore had a duty to indemnify and
defend the Ranieris. Not only was summary
judgment appropriate, but any other result would
have stretched the bounds of legalese to
ridiculous proportions.
If the answer's glaring
simplicity were not enough, the Eighth Appellate
District addressed a nearly identical case some
20 years ago in Katana v. Harbin. There,
an older deed had listed a sewer easement, but
the newer deed did not. But the newer deed
contained a general warranty that the land was
free of encumbrances with exceptions for
building, zoning, or other easements - but not
for the sewer easement. The court held that the
exception to the covenant in the newer deed
"should not be extended beyond the plain
and ordinary meaning of its terms. Therefore,
what is written on the face of the deed must
control."
We could not agree more. What
is written on the face of the Monfort deed is
that that the conveyance was unencumbered and
that Monfort would defend the Ranieris against
any claims to the contrary. The conveyance
wasn't, and Monfort didn't. There are no genuine
issues of material fact; there are no issues of
fact whatsoever. This was a simple case of legal
interpretation that any first-year law student
should be able to answer: a "free, clear
[sic] and unencumbered title" is the same
as a "clear title." Monfort warranted,
in the plainest of language, that the land was
unencumbered and that it would defend the
Ranieris against any claims to the contrary.
Summary judgment was therefore appropriate.
IV.
The Normans Conquer Lorain County
Monfort cites Zilka v.
Central South Limited, a Ninth Appellate
District case that distinguished a clear title
from a free and clear title in much the same way
that Monfort now argues. "In short, while
'clear title' cannot have any encumbrance or
restriction whatsoever, 'free and clear' title
is a marketable title ..." We are,
thankfully, unable to find any case that has
cited this aberration - the Norman invasion has
not progressed any farther south in Ohio.
We may consider Zilka
and give it the weight that we consider
appropriate. And we consider it inappropriate to
give Zilka any weight at all.
The Normans and Zilka have
also corrupted an Ohio real-estate treatise -
namely, Baldwin's Ohio Real Estate Law. In the
section defining "marketable title,"
the treatise states, "Title that is 'free
and clear' is not the same as 'clear title.'
Rather, 'free and clear title' means title that
is unencumbered by any liens and is
marketable." It then cites Zilka.
Before Zilka, we are
sure that Baldwin's made no such claim. Another
venerable Ohio treatise (published before Zilka)
states it properly: "['Clear title']
usually refers not to the title itself but to
the absence of liens or encumbrances against the
real estate. The term typically appears in the
following context: The seller agrees to convey
to the purchaser marketable title, 'free and
clear' of liens and encumbrances." So the
sample used to define "clear title"
used the term "free and clear" title.
But Monfort argues that they are two different
things. Is it any wonder that lawyers get a bad
rap?
Nine hundred years later,
courts in Ohio are still dealing with the
consequences of the Norman invasion. We can only
hope that some day logic will prevail over silly
tradition.
Since the trial court got it
right, we affirm the trial court's judgment.
Doan, P.J., and Sundermann, J., concur.
Readability
In each column, I list the
two major readability statistics - remember that
you can program Word to tell you these and more.
Statistics for this column: 17 words per
sentence, 8 percent passive voice. (Remember the
1818 Rule - no more than an average of 18 words
per sentence and 18 percent passive-voice
sentences.)
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