United States District Court, E.D. Arkansas, Eastern Division
FINDINGS AND RECOMMENDATION
following proposed Findings and Recommendation have been sent
to United States District Judge James M. Moody, Jr. You may
file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection, and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
Commonwealth Land and Title (“Commonwealth”) and
Mary Jo Bullard (“Bullard”) have filed separate
motions for summary judgment pursuant to Federal Rule of
Civil Procedure 56. See Docket Entry 31,
For the reasons that follow, the undersigned recommends that
the motions be granted.
David Friedeberg (“Friedeberg”) began this
diversity case by filing a pro se complaint. In it,
he alleged the following:
... [Friedeberg] purchased a home located at 203 [South
Seventh Street in] West Helena, Arkansas ... through Delta
Realty who represented both [Friedeberg] and [Bullard]. Delta
Realty used East Arkansas Title Insurance Company and their
attorney Charles D. Roscopf to handle closing. [Friedeberg]
was issued [an] owner title policy through [Commonwealth]
without a proper title exam and/or opinion rendered. Their
issuance of a policy without a proper title exam was in bad
... [The] property was not legally transferred to [Bullard]
and therefore [Friedeberg] does not have a clear title to 203
[South Seventh Street] ... This flaw of title should have
been detected by [Commonwealth] upon writing a title policy
without proper title examination.
See Docket Entry 2 at CM/ECF 4. Friedeberg asked
that he be awarded damages for the present value of the lot
and residence at 203 South Seventh Street, West Helena,
Arkansas, (“residence”), which he estimates to be
$125, 000.00; for the loss of securing an education for his
son; and for the loss of the enjoyment of the residence.
Commonwealth's motion for summary judgment.
the issues were joined, Commonwealth filed the pending motion
for summary judgment. In it, Commonwealth asked that
Friedeberg's complaint be dismissed for the following
On December 19, 2014, Commonwealth issued a title policy ...
to Friedeberg. Friedeberg later made a claim under that
Policy, and Commonwealth paid him the policy limits, which
terminates its obligations under the Policy. Nevertheless,
Friedeberg has sued Commonwealth seeking damages of $125, 000
in his complaint.
Friedeberg's complaint is unclear as to whether he is
suing in contract or for negligence. But he has no claim for
negligence for two reasons. First, Arkansas law does not
permit a negligence claim against title insurance companies
“for lack of reasonable care in searching and
disclosing the state of title to the property.” Ark.
Code Ann. 23-103-408(e)(1). The exclusive remedy in such
cases “is to file a claim against the title insurance
policy subject to the terms and conditions of the title
insurance policy.” Ark. Code Ann. 23-103-408(e)(2).
Second, even if a negligence claim were permitted, it would
be barred by the three-year statute of limitations. Ark. Code
Ann. 16-56-105. The Policy was issued December 19, 2014, so
any negligence by Commonwealth would have occurred before
that date. Friedeberg did not file his complaint until April
19, 2018, more than three years after any negligence would
The only possible claim that Friedeberg has is for breach of
contract and that claim fails as a matter of law because
Commonwealth's payment of $8, 000, which was the amount
of insurance provided under the Policy, terminated its
obligations under the terms of the Policy. That $8, 000 is
the most that Friedeberg can possibly recover under the
Finally, Friedeberg's bad faith claim fails as a matter
of law because he cannot prove that Commonwealth engaged in
any behavior sufficiently egregious to support a claim for
See Docket Entry 31 at CM/ECF 1-2.
filed a response to Commonwealth's motion. In the
response, he maintained that his complaint should be
liberally construed and the motion denied, in part, for the
... [Friedeberg] provided a copy of the Warranty Deed ...
which the closing attorney who prepared ... [the] legal
document stamped “This instrument prepared by
Roscoph & Roscoph, P.A. Attorneys, Helena, Arkansas, but
no title examination requested or title opinion
rendered.” ... [B]oth [Friedeberg] and ... Bullard
were charged for title search and owners policy. ... The
Warranty Deed being stamped by the closing attorney
“... no title examination requested or title
opinion rendered, ” clearly shows bad
faith and breach of contract on Commonwealth ... to
issue a policy without a title exam requested [or] opinion
rendered. [Friedeberg] purchased a title policy in good faith
and with full expectation of title work and review of title
company and any other agents of Commonwealth ... [He]
furthermore did not receive a certified copy of the Warranty
Deed and Title Policy until December 1, 2015 ...
[Commonwealth] claims [he] is time barred due to the statute
of [limitations] being only three years starting on December
19, 2014, however the closing attorney did not provide a
certified copy of the warranty deed and the title policy
until December 1, 2015 so at least the three years would have
run until December 1, 2018.
See Docket Entry 41 at CM/ECF 2-3. [Emphasis in
Bullard's motion for summary judgment. Bullard
also filed a motion for summary judgment. In it, Bullard
asked that Friedeberg's complaint be dismissed, in part,
for the following reasons:
... [Friedeberg's] complaint alleges that the subject
“property was not legally transferred” to ...
Bullard ... prior to sale and “therefore [Friedeberg]
does not have a clear title” to his purchased property
..., however, there are absolutely no allegations made
directly against Bullard or a request for relief against
Bullard in [Friedeberg's] complaint. ...
[Friedeberg's] complaint alleges he was issued an
Owner's title policy through ... Commonwealth ... without
a proper title exam or opinion rendered in bad faith.
Discovery in this case reveals a title exam was made by
Commonwealth and that an owner's policy was issued in the
amount of $8, 000.00, and there is no evidence of bad faith
on the part of any defendant ...
[Friedeberg's] complaint further alleges that the subject
property was not legally transferred to ... Bullard ... prior
to sale and therefore [Friedeberg] does not have clear title
to his purchased property ... Discovery has not revealed
anything more than what was already known to the parties and
of public record at the time of the sale. There is no
evidence Bullard withheld information regarding ownership of
the subject property and no evidence that Bullard did not
have legal title to the subject property at the time of sale.
There is also no evidence of anyone challenging
[Friedeberg's] title in and to the subject property or
that a thorough title search was not conducted.
[Friedeberg's] complaint alleges “the home was to
be used as an investment” to ensure funding for
son's college education. Response to discovery has
revealed [Friedeberg] was unable “to obtain an equity
line of credit” due to “concerns to transfer of
title, ” but [Friedeberg] has not revealed where he
applied for ...