Kurtzenacker v. Davis Surveying, Inc., 2012 MT 105

Appellees own 9.25 acres near Troy, Montana, with a common western boundary with Northern Lights, Inc.; the parcel sits above Troy Dam on Lake Creek.
A 1994 predecessor survey (COS 2287) identified the eastern boundary of Northern Lights and the western boundary of the 9.25-acre tract; this survey was filed in 1995.
Davis Surveying conducted several surveys (COS 2530, 2591 in 1997; COS 2634 in 1998) for related property interests, with the 1995 Marquardt survey used as the basis in some later work.
From 1997–1998, Davis relied on the 1995 survey for the western boundary, and all surveys were recorded in Lincoln County records.
In 2006, Appellees purchased the 9.25-acre parcel from Osprey Bend; warranty deed referenced the prior surveys; Appellees later alleged Davis’s employee Clark misrepresented boundaries and flagged the boundary inaccurately; Northern Lights later advised they were trespassing; subsequent surveys confirmed Appellees owned no waterfront property; Appellees sued for negligent misrepresentation, negligence, and breach of contract via third-party beneficiary theory; the District Court found liability and awarded $140,344, which Davis appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Appellees had actual or constructive notice of recorded surveys defining boundaries	Kittleson asserts recorded surveys set the boundaries; purchase notice included those references	Davis contends notice as a matter of recordation precludes recovery	Issue declined to be addressed on appeal
Whether Appellees were intended third-party beneficiaries of a Davis Surveying contract	Appellees were intended beneficiaries of surveys for future sales	Appellees were incidental beneficiaries, not intended beneficiaries	District Court erred; Appellees lack standing as third-party beneficiaries; reversed on this issue
Whether damages were proper for negligent misrepresentation	Clark’s misrepresentations caused reliance and damages to Appellees	Evidence inconsistent; no reasonable reliance established	Damages affirmed; misrepresentation liability sustained for the District Court’s reasoning and evidence
Whether Kenneth Davis is personally liable for Davis Surveying, Inc.’s acts	Davis personally contributed to misrepresentation or perpetuated the misrepresentation	No personal involvement or employment relationship shown; vicarious liability lacking	No substantial evidence to hold Davis personally liable; reversed on this issue

Diaz v. Blue Cross & Blue Shield of Mont., ? MT 322 (2011 MT 322) (stands for third-party beneficiary principles (Restatement §302))
Harmon v. MIA Serv. Contracts, 260 Mont. 67, 858 P.2d 19 (1993) (defined intended beneficiary standards)
Ronning v. Yellowstone Co., 2011 MT 79, 360 Mont. 108, 253 P.3d 818 (2011 MT 79) (Restatement-based guidance on incidental beneficiaries)
Dick Anderson Constr., Inc. v. Monroe Constr. Co., LLC, 2009 MT 416, 353 Mont. 534, 221 P.3d 675 (2009 MT 416) (standing of a noncontracting party to sue on contract)
Klingman v. Mont. Pub. Serv. Commn., 2012 MT 32, 364 Mont. 128, 272 P.3d 71 (2012 MT 32) (Restatement-based intended beneficiary test applied)