NO. 95-021 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995

SUSANSCHNEELQCH,

Plaintiff andAppellant,
v. WILLIAM R. CORNMAN andJOANR. CORNMAN, and all other persons unknown, claiming, or whomight claim any right, title, estate or interest in or lien or encumbrance upon the real property described in the Complaint adverse to the Plaintiff's title thereto, where such claim or possible claim be present or contingent,

Defendants and Respondents. 

### JirN19 1995

APPEALFROM: District Court of the Twenty-First Judicial

District, In and for the County of Ravalli, TheHonorable Jeffrey H. Langton, Judge presiding.

COUNSELOFRECORD:

For Appellant: Michael Sol, Sol &Wolfe, Missoula, Montana For Respondent: Timothy D. Geiszler, Geiszler &Newcomer, Missoula, Montana

Filed: Submitted onBriefs: April 20, 1995 Decided: June 19, 1995

I'ClerkJustice Terry N. Trieweiler delivered the opinion of the Court.

The plaintiff, Susan Schneeloch, filed a complaint in the District Court for the Twenty-First Judicial District in Ravalli County to quiet title to certain real estate and to recover damages from the defendants, William R. and Joan R. Cornman. The Cornmans filed a counterclaim in which they sought title to the same property. Following a nonjury trial, the District Court found that the Cornmans were the owners in fee simple and entitled to possession of the real property described in Schneeloch's complaint. The District Court also awarded costs and attorney fees to the Cornmans, and entered judgment in their favor. Schneeloch appeals from the District Court's findings, conclusions, and judgment. We affirm the judgment of the District Court in part and reverse in part. The following issues are dispositive on appeal: 1. Were the District Court's findings of fact clearly erroneous? 2. Did the District Court err when it awarded attorney fees to the Cornmans? FACTUAL BACKGROUND OnAugust 28, 1992, Susan Schneeloch filed acomplaint against William R. and Joan R. Cornman. Schneeloch requested that title be quieted to afive acre tract of land located in Ravalli County next to her home, and sought damages from the Cornmans as well.

2OnDecember 8, 1992, the Cornmans filed anamendedanswer and

counterclaim. They alleged that they, not Schneeloch, were entitled to judgment quieting title to the property. During anonjury trial, Schneeloch testified that shemetJoan Cornman in 1987while looking at aparcel of five acres that Joan owned; shestated that shecontacted the Cornmans again in 1990 in
an effort to purchase the five acre parcel of property and that they agreed to accept $8000 in cash for the parcel; according to her, the Cornmans prepared awarranty deed and a realty transfer certificate, which they executed, along with a receipt for the $8000, andthey gave all three documents to her. Shealso testified that because her husband became angry at her for spending this moneywithout consulting him, she hid the real estate documents in somemagazines. However, dueto perceived threats from the Internal Revenue Service, Schneeloch then decided to have title to the property transferred to athird person. She asked the Cornmans to prepare asecond deed transferring title to JamesCarpenter. According to Schneeloch, they agreed to dosoand executed adeed for that purpose. Schneeloch put this deedawayaswell. However, she continued to explain that after returning from vacation, she found that her husband and son had cleaned the house and moved the stack of magazines in which she had placed the envelope containing the original deeds. Her husband had even burned certain items. She contacted the Cornmans again in early July 1990and told them she believed the deed had been lost or destroyed. The Cornmans had 3other buyers for the property, andSchneeloch attempted to contact

these newbuyers. Later, in September 1990, Schneeloch found and recorded the Carpenter deed. Shelater found the original deed. Schneeloch testified that it was around mid-September IYYO whenshefound both documents. Schneeloch wascharged with forgery of the signatures onthese deeds; however, these charges were later dropped. TheCornmans' testimony contradicted the previous allegations in every material respect. Joan Cornmantestified that shedid not sign anoriginal warranty deed from the Cornmans to Schneeloch on April 30, 1990; that she did not prepare a realty transfer certificate; andthat shedid not receive anycash from Schneeloch. She also denied executing the second warranty deed by which the property wasallegedly conveyed to James Carpenter. Detective JamesBailey of the Ravalli County Sheriff's Office stated that he investigated this deed dispute in 1990. Bestated that hereceived manyinconsistent statements from Schneeloch, and that she did not cooperate with him during the investigation. William Cornman testified that he was familiar with the April 30andMay15warranty deeds andthat hedid not sign either deed. William, like Joan, testified that hedid not receive $8000 from Schneeloch. Schneeloch's husband and son, and James Carpenter, did not testify. ISSUE1 Werethe District Court's findings of fact clearly erroneous?

4Wewill not overturn the findings of a trial court sitting

without a jury unless the trial court's findings are clearly
erroneous. InterstateProductionCreditAss’nv.De&ye (1991) , 250 Mont. 320, 322, 820 P.2d 1285, 1287 (citing Rule 52(a), M.R.Civ.P.). Schneeloch argues that the District Court made findings unsupported by the evidence and that her allegations are corroborated by the circumstances, but that the Cornmans' allegations are not. She contends that the District Court disregarded the evidence at trial, including uncontroverted opinion evidence, and impermissibly based its decision on her lack of credibility. Schneeloch also asserts that properly notarized deeds
are presumed to be authentic and cannot be controverted absent clear and convincing evidence to the contrary. The Cornmans respond that the District Court's findings are supported by substantial evidence, that the District Court was not bound by the testimony of any single witness, and that there was clear and convincing evidence to overcome any presumption that attached to the notarized deeds. We have held that substantial evidence "'is such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.'" AccountsManagementCorp.Y.LymanRanch (1987), 230 Mont

. 35, 41, 748 P.2d 919, 923 (quoting Bushnellv.Cooke (19861, 221 Mont. 296, 300, 718 P.2d 665, 668). We have also held that even if conflicting evidence is presented, it is a trial court's duty to resolve such conflicts;

5due regard is to begiven to the trial court's ability to judge the

credibility of witnesses; and it is not our function to substitute
our judgment for that of the trial court. Williamsv.DeVinney (1993), 259 Mont. 354, 359, 856 P.2d 546, 549 (citing De&ye, 820 P.2d at 1287-88). TheDistrict Court found that Schneeloch's testimony was not credible, was misleading, and that she tended to be evasive. Bycontrast, the District Court found that the Cornmans' testimony
wascorroborated, unequivocal, andunqualified. TheDistrict Court especially found Joan Cornman's testimony that shewould never sign
ablank warranty deed to be highly credib1e.l TheCornmans testified that they had never received any money from Schneeloch andthat they hadnot signed the original warranty deeds in question. Wehave previously stated that it is within the province of the district court in a nonjury case to judge the credibility of the witnesses and to determine the weight to be given to their testimony, especially when the evidence is contradictory. Neilsv.Deist (1979), 180Mont. 542, 547, 591P.2d 652, 655 (citing Olsonv.Carter (1977), 175Mont. 105, 107, 572 P.2d 1238, 1239). See&o § 26-l-301, MCA. Wewill not second guess the determination of the district court. A review of the record reveals substantial evidence onwhich the District Court could base its findings of fact and weconclude that they were not clearly
erroneous.

1 Schneeloch contended that the deed to Carpenter was executed without the transferee's nameandthat shelater filled it out. 6The judgment of the District Court is affirmed in part,

reversed in part, and remanded for further proceedings consistent with this opinion. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as apublic document with the Clerk of the Supreme Court and by a report of its result to Montana Law Week, State Reporter and West Publishing Company.

Weconcur:

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