DA 12 - 0031 IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 195 ANTHONY F . VARANO, Plaintiff and Appellee, v. MI CHEALHICKS, Defendant and Appellant. APPEAL FROM: District Court of th e Nineteenth Judicial District,

In and For the County of Lincoln, Cause No . DV 11 - 280 Honorable James B . Wheelis, Presiding Judge COUNSEL OF RECORD:

For Appellant: Micheal Hicks (Self

- Represented) , Eureka, Montana For Appellee: (No Appellee Brief filed.) Submitted on Briefs: June 27, 2012 Decided: September 5, 2012 Filed:

__________________________________________ Clerk September 5 20122

Justice Patricia O. Cotter delivered the Opinion of the Court. ¶1 Michea l Hicksappeals the NineteenthJ udic ial District Court’s order awarding damages in the amount of $6 16.33 plus costs to Anthony Varano . We affirm .

**FACTUAL AND PROCEDURAL BACKGROUND** ¶2 The dispute between Varano and Hicks arose following asnowmobiling trip in Lincoln County . Varano allowed Hicks to borrow his snowmobile . The parties dispute the events that o ccurred during their outing. ¶3 On March 29, 2011, Varano filed a c omplaint in Lin coln County Justice Court alleging that Hicks caused $2,681.58 in damaget o his snowmobile . A bench trial was held on October 26, 2011 . The Justice Court determined that Hicks agreed to pay Varano for the ga s olineand oil he used . Since the snowmobile trip took place more than two years prior to the case being heard , and the only evidence of the alleged damag e was an estimate for repairs dated a year after the incident in question, the Justice Court declined to award any sum

t o compensate Varano for damages to the snowmobile . The Justice Court awarded Varano the ga s olineand oil costs and his court costs . Varano appealed the Justice Court’s decision. ¶4 The Nineteenth Judicial District Court held a bench trial on December 28, 2011 . Both parties represented themselves at trial . Both parties testified and were questioned by the judge . Varano testified that whenHicks borrowed his snowmobile, Hicks agreed to fix any damagehe caused while using it . Varano further testified that Hicks drove the snowmobileoff the road and hit a tree . Following the accident, Varano requested $500 to cover the damages . According to Varano, Hicks ag reed to pay the $500, but then left3

town and avoided payment . Hicks testified that he only agreed to pay Varano $25 to cover gas oline , but Varano demanded more and more money w hen no payment was made . Hicks eventually took out a restra ining order to prevent Varano from approaching him and demanding payment. ¶5 On January 4, 2012, the District Court enteredits F indings of F act, C onclusions of L aw, and Order . The District Court determined that Varano had loaned his snowmobile to Hicks on the condition that Hicks would pay for the cost of ga soline and would be responsible for any potential costs of repair . The District Court found that Hicks damaged the snowmobile by running it off an em bankment . The District Court concluded that a fter agreeing to the sum of $500 for the repairs, Hicks failed to pay the ag reed - upon amount and had not paid for gasoline or oil . Neither party presented testimony by a qualified mechanic that would have allowed the District Court to determine the amount of dama ge s or the cause of the damages . Based on itsfindings, the District Court ordered Hicks to pay the $500 pursuant to the oral contract, $116.33 as the reasonable cost of gasoline and oil consumed during the outing, and the costs of the law suit . Hicks app eals. **ISSUE** ¶6 A restatement of the issue on appeal is whether the District Court’s decision on the judgment amount and the existence of an enforceable contract between the parties was based on sufficient evidence. **STANDARD OF REVIEW**4

¶7 We review

the findings of

f actof a trial court sitting without a jury to determine if the court ’ s findings are clearly erroneous . Olsen v . Milner, 2012 MT 88, ¶ 16, 364 Mont . 523, 276 P.3d 934 . A factual finding is clearly erroneous if it is not supported by substantial evidenc e, if the trier of fact misapprehended the effect of the evidence, or if a rev iew of the record leaves the reviewing court with the definite and firm conviction that a mistake has been made . Mi cone v . Dep ’t of Pub . HH

S, 2011 MT 178, ¶ 10, 361 Mont . 258, 2 58 P.3d 403 . We review the evidence in the light most favorable to the prevailing party when determining whether substantial credible evidence supports the district court’s findings . Eldredge v . Asarco Inc. , 2011 MT 80, ¶ 30, 360 Mont . 112, 252 P.3d 182 . We rev iew for correctness a district court’s conclusions of law . Id . **DISCUSSION** ¶8 This matter comesbefore us solely on the brief of Appellant Hicks . Hicksasserts on appeal that Varano presented insufficient ev idence to support the District Court’s find in gs and judgment . Hicks further argues that the District Court’s findings are not supported by the trial testimony . Specifically, he denies the existence of an enforceable ag reement between the parties and contends that the judgment amounti s unsubstant iated . ¶9 Rev

iewing the record in this case and considering the evidence in the lig ht most fa vorable to the prevailing party , we conclude that the District Court properly considered the conflicting testimony of the parties and acted within its province in f inding the testimony of Varano more credible . It is manifest on the record that the District Court ’ s findings of fact are not clearly erroneous nor are its conclusions based on those findings incorrect . Hicks admitted to driving the snow mobile off an em b ankment, and the5

testimony of Varano established the existence of the contract to settle the resulting damages for $500 . The judgment amount was reasonably supported by the testimony . We will not disturb on appeal a district court ’ s determinationof witn ess credibility as this determinationr ests exclusively within the provinceo f the finder of fact . Hendricks v . State , 2006 MT 22, ¶ 16, 331 Mont . 47, 128 P.3d 1017 . ¶10 The District Court’s findings of fact are supported by substantial evidenceand the leg al issues are controlled by settled Montana law, which the District Court correctly interpreted. ¶11 Weaffirm the judgment of the District Court. /S/ PATRICIA COTTER

We concur: /S/ MIKE McGRATH /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS