No. 93-452 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JAMES FIEDLER, 

Plaintiff and Respondent, 

- ..,. vs . 

JOSEPH FIEDLER, 

Defendant and Appellant, A% 1 1 1994 

and 

JOSEPH FIEDLER. 

plaintiff ' on Counterclaim and Appellant, 

JAMES FIEDLER AND JUDITH FIEDLER, 

Defendants on Counterclaim and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert T. Cumins and James P. Greenan, Helena, 

Montana 

For Respondent: 

Michael G. Barber and Donald L. Ostrem, Great Falls, 

Montana 

Filed: 

Submitted on Briefs: April 14, 1994 

Decided: AU~US~ 11, 1994 
Justice Fred J. Weber delivered the Opinion of the Court. 

James Fiedler brought this action in 1982 for dissolution of 

a partnership and for an accounting for purposes of distribution. 

Joseph Fiedler appeals from the Order of the District Court of the 

Eighth Judicial District, Cascade County, which divided and 

apportioned real and personal partnership property between him and 

James Fiedler pursuant to the findings of a Special Master. We 

affirm. 

The issues presented for review are restated as follows: 

I. Did the District Court err in finding that real property 

located in Montana is a partnership asset? 

11. Did the District Court err in finding that real property 

located in Wisconsin is a partnership asset? 

111. Did the District Court comply with the requirements of 

Rule 53 (e) (2), M.R.Civ.P.? 

IV. Did the District Court err in determining that Joseph and 

James Fiedler operated the Taylor Ranch Corporation as a part of 

the partnership? 

James and Joseph Fiedler are twin brothers who began a farming 

and ranching business in approximately 1950, operating as a family 

partnership under the name of "Fiedler Ranch Partnership." 

Testimony indicated that other family members were also involved, 

although all are now deceased. These family members were their 

older brother, William Frances Fiedler, and their parents, Frank 

and Katherine Fiedler. 
The partnership farmed and raised sheep and cattle on 

properties in Judith Basin County near Stanford, Montana known as 

the Home Place, the Campbell Ranch, the Vann Ranch, Sleepy Hollow, 

160 acres known as the "Isolated 160" and the Taylor Ranch. The 

Taylor Ranch was purchased with partnership funds in 1954 and was 

originally formed as a corporation with shares issued to James and 

Joseph Fiedler and their wives. The Taylor Ranch Corporation has 

since been dissolved by the Secretary of State and the Fiedler 

brothers have operated it as part of the partnership. Other 

property which the brothers inherited from their parents and which 

is located in Wisconsin has been leased with the income from the 

leases deposited in partnership accounts and included as income on 

partnership tax returns. 

James and Joseph Fiedler operated the cattle operation 

together until 1968. Joseph Fiedler has since raised sheep on the 

Home Place and Sleepy Hollow while James has managed the cattle 

operation on the remaining properties. Joseph Fiedler testified at 

trial that he deposited income from the sheep operation in an 

account in a Lewistown bank under the name of Fiedler Ranch. He 

also testified that this was a joint account with access by both 

himself and James Fiedler. James Fiedler testified that he had no 

knowledge of this account and no documentation was provided 

relative to this account despite requests from the Special Master 

appointed by the court. 

James Fiedler placed funds derived from the cattle operation 

primarily in a joint account under the name of Fiedler Ranch 
Partnership in the Basin State Bank in Stanford, Montana. James 

Fiedlerls cattle operation was extremely successful and the money 

deposited in this account primarily came fromthe cattle operation. 

Both brothers made draws from this account. Testimony provided 

that in the period from January 1978 up to the time of the trial, 

Joseph Fiedler withdrew $455,343 from this account, $289,189 more 

than James Fiedler withdrew. 

The relationship between the twin brothers became strained as 

years passed. In 1982, James Fiedler filed a complaint asking for 

dissolution of the partnership and an accounting for distribution 

purposes. Joseph Fiedler filed an answer and a counterclaim also 

asking for an accounting for distribution purposes. The parties 

agreed to the appointment of a Special Master to determine the 

final disposition of the partnership assets. On September 2, 1983, 

the District Court appointed Jack Stevens as Special Master. 

Mr. Stevens was recommended by the appellant Joseph Fiedler 

and approved by both Joseph and James Fiedler. In preparing his 

Special Master's Report, Mr. Stevens relied on George Campanella, 

a Certified Public Accountant who had prepared partnership tax 

returns for over twenty years as the accountant for the 

partnership; James Volk, a certified real estate appraiser; and 

Bass Auction Company, which conducted the equipment appraisals. 

Mr. Stevens also considered the recommendations of Barry Dutton, a 

natural resource consultant hired by Joseph Fiedler after Joseph 

Fiedler disagreed with Mr. Stevens1 preliminary findings. 

The Special Master was asked to determine equitable 
distributions of partnership assets. Mr. Stevens proposed two 

methods for distributing real property and other assets. The first 

method--preferred by the Special Master and chosen by the District 

Court--essentially maintained the operations of both brothers and 

provided additional cash to compensate Joseph Fiedler for the 

additional real estate apportioned to James Fiedler. The second 

proposal awarded equal land values to each brother with more cash 

awarded to James Fiedler. 

Mr. Stevens testified that among his reasons for recommending 

the first proposal were the comparative stewardship abilities of 

the parties over the preceding twenty years, and he specifically 

noted James Fiedler's management of the property which created a 

large amount of assets for the partnership as contrasted to the 

relatively poor fiscal management of other assets by Joseph 

Fiedler. Other testimony, including that of a banker who had done 

business with James Fiedler concerning partnership business for 

over twenty years, provided that James Fiedler was regarded as a 

sound financial manager and profitable rancher. 

Despite requests, Joseph Fiedler did not provide documentation 

to the Special Master to support his testimony about his sheep 

operation. Other evidence presented at trial indicates that James 

Fiedler has successfully managed the vast majority of the real 

estate owned by the parties for more than twenty years, that there 

was no mismanagement on the part of James Fiedler involving any of 

the partnership assets and that there had been no commingling of 

partnership and personal assets by James Fiedler as had been 
alleged by Joseph Fiedler. Testimony also indicated that Joseph 

Fiedler and his wife Olivia had not filed income tax returns since 

1982 and that they might need additional cash to cover their tax 

liability. This was one of the reasons stated by the District 

Court to support the adoption of the Special Master's preferred 

proposal. 

Other facts will be provided as necessary throughout this 

opinion. 

STANDARD OF REVIEW 

This case involves a review of findings of fact and 

conclusions of law. For conclusions of law, the standard of review 

is whether the district court correctly interpreted the applicable 

law. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 

474, 803 P.2d 601, 603. This Court applies a clearly erroneous 

standard using a three-part test to review a district court's 

findings of fact. The Court first reviews the record to determine 

if the findings are supported by substantial evidence; second, if 

the findings are supported by substantial evidence, we will 

determine if the trial court has misapprehended the effect of the 

evidence; and third, if substantial evidence exists and the effect 

of the evidence has not been misapprehended, the Court may still 

conclude that a finding is clearly erroneous when a review of the 

record leaves the Court with the definite and firm conviction that 

a mistake has been committed. Interstate Prod. Credit Ass'n v. 

DeSaye (lggl), 250 Mont. 320, 323, 820 P.2d 1285, 1287. 

Substantial evidence is defined as "evidence that a reasonable mind 
might accept as adequate to support a conclusion; it consists of 

more than a mere scintilla of evidence but may be somewhat less 

than a preponderance." Barrett v. Asarco, Inc. (1990), 245 Mont. 

196, 200, 799 P.2d 1078, 1080. 

Issue I: Montana Real Prowerty 

Did the District Court err in finding that real property 

located in Montana is a partnership asset? 

Joseph Fiedler contends that the real property located in 

Montana is and has always been held as tenants in common. He 

further contends that all real properties owned by the parties-- 

with the exception of the Taylor Ranch--were acquired by various 

family members prior to 1950, the date James Fiedler has alleged as 

the time the partnership was created between James and Joseph 

Fiedler. According to Joseph Fiedlerls arguments on appeal, no 

real property is held in the name of the partnership, no written 

partnership agreement has ever existed between James and Joseph 

Fiedler, and the Fiedler brothers never intended to convey real 

property held as tenants in common to the partnership. Thus, 

Joseph Fiedler contends that the District Court erred in relying on 

In the Matter of the Estate of Palmer (1985), 218 Mont. 285, 708 

P.2d 242, to determine that James and Joseph Fiedler intended to 

operate the ranch lands as part of a partnership and in 

distributing such as partnership property. 

James Fiedler counters that Joseph Fiedler has maintained 

since the beginning of this proceeding that all real property owned 

and operated in Montana for farming and ranching purposes was 

partnership property and that he is barred by principles of 

7 
judicial estoppel from now contending otherwise on appeal. We 

agree. 

Clearly standing out among the numerous instances in which 

Joseph Fiedler has previously asserted or maintained that the 

property is partnership property are the following: 

1. "Defendant JOSEPH FIEDLER has filed extensive 

counterclaims against Plaintiff JAMES FIEDLER alleging 

that JAMES FIEDLER has mismanaged the partnership assets; . . . failed to maintain the buildings and lands of the 

partnership; breached his fiduciary duty by mismanaging 

partnership lands . . .I1 (From Motion of Defendant and 

Counter-Plaintiff Joseph Fiedlerto add Judith Fiedler as 

a Defendant to the Counterclaims) 

2. "The Fiedler Ranch Partnership comprises a number of 

tracts of land totalling approximately 9254 acres." 

(From Joseph Fiedler's response to the Preliminary Report 

of the Special Master) 

3. "Plaintiff's motion envisions an eventual partition 

pursuant to MCA Title 70, Ch. 29. That chapter is 

irrelevant to partnership actions. By its own terms, 

section 70-29-101 applies only to situations 'when 

several cotenants hold or are in possession of real 

property as joint tenants or as tenants in common.' 

Plaintiff's complaint herein did not seek relief in 

partition. More accurately, it sought dissolution and 

winding up of a partnership, under MCA Title 35, Ch. 10. 

Section 35-10-502 makes it clear that partners hold 

partnership property as 'tenants in partnership1, not as 

tenants in common or as joint tenants, and the statutory 

system for dissolving and winding up the affairs of a 

partnership is very different from that of an ordinary 

partition. " (Joseph Fiedler's objection to James 

Fiedler's Motion for a Title Report, acquiesced in and 

relied on subsequently by James Fiedler) (Emphasis in 

original.) 

James Fiedler also stipulated--pursuant to Joseph Fiedler's 

argument that the property was held as a tenancy in partnership--to 

withdraw his claim for partition and for payment for services 

provided to the partnership. At all times subsequent to James 

Fiedler's withdrawal of these claims, James Fiedler has taken the 
position previously argued by Joseph Fiedler that the property was 

held as a tenancy in partnership. 

The doctrine of judicial estoppel binds a party to his or her 

judicial declarations, and precludes a party fromtaking a position 

inconsistent with them in a subsequent action or proceeding. 

Trader's State Bank of Poplar v. Mann (1993), 258 Mont. 226, 242, 

852 P.2d 604, 614. This Court has applied the doctrine to estop a 

party from controverting admissions in the party's pleadings and to 

estop a party from controverting admissions in an affidavit. 

Rowland v. Klies (1986), 223 Mont. 360, 368, 726 P.2d 310, 316 

(citing Fey v. A.A. Oil Corp (1955), 129 Mont. 300, 323, 285 P.2d 

578, 590) . Stated simply, it is a rule which "estops a party to 

play fast-and-loose with the courts." Rowland, 726 P.2d at 315 

(citing 31 C.J.S. Estoppel, 6 117B (1964)). Just as surely, the 

doctrine is applicable in this case where a party cannot take the 

opposing viewpoint when he has induced another to stipulate to his 

position and drop his arguments for that opposing position. 

The elements of judicial estoppel are: 

1) the estopped party must have knowledge of the facts at 

the time the original position is taken; 

2) the party must have succeeded in maintaining the 

original position; 

3) the position presently taken must be actually 

inconsistent with the original position; and 

4) the original position must have misled the adverse 

party so that allowing the estopped party to change its 

position would injuriously affect the adverse party. 

m, 852 P.2d at 614. Throughout the lengthy duration of this 

litigation and until he presented evidence at trial to argue that 

9 
the properties were held as tenancies in common, Joseph Fiedler has 

consistently maintained that the properties involved in this action 

are partnership properties. 

There is nothing in the record to indicate that Joseph Fiedler 

did not have knowledge of all the facts at the time he took his 

original position and clearly he succeeded in maintaining that 

position. This position was taken early on in the litigation and 

James Fiedler stipulated to this position at that time. Clearly, 

all the elements for judicial estoppel are present and Joseph 

Fiedler cannot now argue that this should be an action in partition 

of real property and not a partnership dissolution proceeding. 

Further, Joseph Fiedler maintained early on in this proceeding that 

all five Fiedlers operated as a family partnership prior to their 

deaths. We conclude that Joseph Fiedler is judicially estopped 

from changing his position concerning this property. 

Further, he has made no cogent argument for not applying 

Palmer to the facts of this case to determine that the real 

property is held by James and Joseph Fiedler as tenancies in 

partnership. Palmer held that property acquired either before or 

after formation of a partnership may be considered partnership 

property despite the appearance of another form of ownership. 

Palmer, 708 P.2d at 249. 

We hold the District Court correctly determined that the real 

property located in Montana is a partnership asset. 

Issue 11: Wisconsin Real Propertv 

Did the District Court err in finding that real property 

located in Wisconsin is a partnership asset? 
The parties own several tracts of real property in Wisconsin 

(the Wisconsin properties). The District Court included the 

Wisconsin properties along with other assets as partnership 

property to be distributed to the parties. James Fiedler has 

managed the Wisconsin properties and deposited income from them in 

partnership bank accounts. 

This income has been included on partnership tax returns as 

well. George Campanella testified that copies of partnership tax 

returns were provided to Joseph Fiedler and presented evidence of 

that for several years. Joseph Fiedler did not challenge this 

during the years of James Fiedler's management of this property nor 

has he made a persuasive argument that the Wisconsin properties are 

not partnership property. 

Joseph Fiedler contends that the Wisconsin properties are not 

subject to the jurisdiction of the District Court and that the 

deposit of funds from the rentals of the Wisconsin properties in 

the Montana bank account and James Fiedler's reporting of the lease 

income as partnership income does not constitute sufficient 

evidence to overcome a prima facie assumption that the ownership is 

that of tenants in common. These arguments are inapposite. 

It is immaterial that the District Court does not have 

jurisdiction overthe real property in Wisconsin. In October 1988, 

the parties stipulated that the Special Master would associate 

counsel in Wisconsin to conclude the probate of the Estate of Frank 

Fiedler, list the property for sale after appraisal under the 

supervision of the Special Master, and then deposit the net 
proceeds of the sale of the Wisconsin properties in the Special 

Master Interest Bearing Account until a court-ordered division and 

disbursement of the proceeds was ordered. 

This stipulation to have the Special Master convert the 

property to cash for distribution as directed by the District Court 

was agreed to in October 1988--more than four years before the 

trial. Joseph Fiedler did not object to including the Wisconsin 

properties as part of the trial. He further did not object to the 

District Court's inclusion of them in the Order Appointing the 

Special Master or the Preliminary or Final Special Master's 

Report's discussion of them. He in fact included the Wisconsin 

properties in his own Counterclaim and other motions. He waited 

until just before trial to mention that the Wisconsin properties 

were improperly included in this proceeding and then agreed that 

the property should be included. He did not object until the 

Special Master's report was being considered by the Court. 

As part of the Special Master's proposal adopted by the 

District Court, the proceeds of the sale of the Wisconsin 

properties are to be distributed to Joseph Fiedler. His argument 

relating to the fact that the property has not yet been sold is 

meritless. As noted above, Joseph Fiedler stipulated in 1988 to 

the procedures to be followed concerning this property. Moreover, 

by stipulating to this procedure, Joseph Fiedler waived any future 

argument to treat the matter differently absent allegations to 

support setting aside or relief from the stipulation. 

The purpose of a stipulation is to relieve the parties from 
the necessity of introducing evidence about the ultimate fact 

covered by it. Webb v. Wolfe (1988), 230 Mont. 322, 325, 749 P.2d 

531, 532. If the stipulation is material, the parties and the 

court are bound by it. Webb, 749 P.2d at 532. See also Myers v. 

Department of Agriculture (1988), 232 Mont. 286, 289, 756 P.2d 

1144, 1146. We conclude that Joseph Fiedler is bound by his 

stipulation made in 1988 concerning the Wisconsin properties. 

In addition to the stipulation that the Special Master would 

handle sale and distribution of the Wisconsin properties, 

substantial evidence was presented to support the District Court's 

finding that the Wisconsin properties were partnership assets. 

This included testimony that the income from the property was 

included in partnership tax returns and that Joseph Fiedler did not 

object to this inclusion of income over a period of more than 

twenty years. This property was managed by James Fiedler. Joseph 

Fiedler also testified that he was advised by his attorney handling 

a 1976 IRS problem that he should leave the management of the 

partnership to James Fiedler. This and other evidence constitutes 

substantial evidence according to the DeSave test. 

We hold the District Court properly determined that real 

property located in Wisconsin is a partnership asset. 

Issue 111: The Special Master's Report 

Did the Special Master's Report comply with the requirements 

of Rule 53, M.R.Civ.P? 

Joseph Fiedler contends that he was deprived of rights arising 

under Rule 53, M.R.Civ.P., because he was not allowed to examine 

and challenge the Special Master's report until it was accepted 

13 
into evidence during the presentation of the plaintiff's case at 

trial. He now claims that the Special Master substantially 

exceeded the authority given to him by the District Court and that 

the report is based on incorrect conclusions that a partnership 

existed between the parties and that the real property owned by 

James and Joseph Fiedler was owned as tenancies in partnership. He 

claims this distorts and invalidates the recommendations made by 

the Special Master concerning assignments of income and proposals 

for division of assets. 

Joseph Fiedler's argument on this issue is basically a 

reargument of the position he argued at the trial. In substance, 

it is an argument that the District Court erred in adopting the 

Special Master's findings. Rule 53(e)(2), M.R.Civ.P., states that 

the trial court shall accept the master's findings of fact unless 

they are clearly erroneous. This contention is addressed in Issue 

IV below. 

As to the opportunity to be heard prior to trial concerning 

the Special Master's report, this too is a meritless argument. 

James Fiedler filed a Motion for Hearing in October 1992, the month 

before the trial, to discuss the adoption of the Special Master's 

report. Joseph Fiedler objected to this motion, stating: 

[A] hearing on this matter before the trial setting is 

premature and would be duplicative of the matters to be 

presented at the trial which is scheduled to commence 

before this Court on the 16th day of November, 1992, for 

a period of one week at which time the Court will 

determine whether or not or how much, if any, of the 

Master's Report will be utilized. 

Moreover, Joseph Fiedler had ample opportunity to respond to the 
Special Master's preliminary report and in fact filed an Opposition 

to Plaintiff's Motion for Adoption of Special Master's Preliminary 

Report as Final Report and later filed an Objection to the Special 

Master's Report following the conclusion of the trial. He also 

challenged specific findings of the Special Master's Report several 

times before the trial and, as stated above, refused a hearing on 

the report in the weeks prior to the trial. To argue now that he 

was prejudiced in light of this conduct is utterly without merit. 

We hold the District Court allowed Joseph Fiedler to respond 

to the Special Master's Report in accordance with the requirements 

of Rule 53 (e) (2), M.R.Civ.P. 

Issue IV: Findinss 

Did the District Court err in determining that Joseph and 

James Fiedler operated the Taylor Ranch Corporation as a part of 

the partnership? 

Joseph Fiedler's lengthy argument on this issue is essentially 

an argument that the District Court erroneously converted this from 

an action in partition to an action to dissolve a partnership. He 

has not identified any specific findings which he claims are 

incorrect, but he argues the District Court erred in determining 

there was a partnership. We addressed the findings which deal with 

the inclusion of real property as partnership assets in Issues I 

and I1 above. We also affirm the findings of the District Court on 

this issue as discussed briefly below. 

Interestingly, in his response to the Preliminary Report of 

the Special Master, Joseph Fiedler stated: 

In approximately 1950, Joseph Fiedler, James Fiedler, 

their brother William . . . and their parents . . . , 
commenced conducting a general ranching and farming 

partnership business on land jointly owned by the family, 

hereinafter referred to as the Fiedler Ranch . . . Upon 

the death of the brother and parents, Joseph and James 

became 50-50 partners with all profits to be split 

even1 y . 

This is but one of the numerous examples in the voluminous record 

of this action encompassing over ten years of litigation by which 

Joseph Fiedler has indicated his knowledge and belief that the 

Fiedler Ranch has been operated as a partnership. Not only has he 

supported his arguments over the years with information indicative 

of a partnership between James and Joseph Fiedler, he has also 

supportedthem with information indicative of a partnership between 

all five members of the Fiedler family going as far back as 1950. 

Substantial evidence supports a finding that the Taylor Ranch 

Corporation was purchased in 1954 by the partnership with 

partnership assets derived from the sale of partnership livestock. 

Based on the Special Master's findings and conclusions, the 

evidence presented at trial and other contents of the record in 

this case, the District Court found specifically that James and 

Joseph Fiedler intended to operate the ranch they inherited, and 

all additions to it, as a partnership; that there was no intention 

by them to have any of the property withheld from the partnership; 

and that the Special Master had relied upon qualified appraisers 

and sound techniques. Rule 53 (e) (2) , M.R.Civ. P., states that a 

trial court sitting without a jury "shall accept the master's 

findings of fact unless clearly erroneous." The District Court 

concluded that the Special Master's report contained nothing which 

was clearly erroneous. We agree. 

16 
After reviewing the record, we conclude that the findings 

above-noted and others not specified herein are indeed supported by 

substantial evidence. Further, after reviewing the record, we 

conclude that the District Court has not misapprehended the effect 

of the evidence, and our review of the record has not left us with 

a definite and firm conviction that a mistake has been made. 

We hold the District Court properly determined that Joseph and 

James Fiedler operated the Taylor Ranch Corporation as a part of 

the partnership.