No. 84-231 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

DELBERT S. BOWMAN and PATRICIA BOWMAN, 

Plaintiffs and Defendants, 

JOHN R. PRATER, GERI PRATER, ELMER G. 

SPIDEL & AVIS SPIDEL, 

Defendants and Appellants. 

APPEAL FROPI: The District Court of the Sixteenth Judicial District 

In and for the County of Prairie, 

The Honorable A. B. Martin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Wright, Tolliver & Guthals; Joel E. Guthals, Billings, 

Montana 

For Respondent: 

Ira D. Eakin, Baker, Montana 

Submitted on Briefs: Aug. 30, 1984 

Decided: December 4, 1984 

Filed: iji 11 . '2 1984 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court 

The defendants appeal from an injunction pendente lite 

order of the District Court of the Sixteenth Judicial 

District, Prairie County, enjoining defendants from 

transferring or encumbering assets owned by the corporation. 

The plaintiffs are bee keepers residing in Terry, 

Montana. The parties formed several corporations with the 

desire of marketing bee pollen. Three corporations were 

formed : Bowman Apiaries, Inc., Prairie County Land 

Developers, Inc. , (P.C.L.D. ) and Bee Made Products 

Laboratories, Inc. 

In return for capital stock in the corporation, the 

plaintiffs contributed land with a service station on it, as 

well as their labor in running the pollen production 

business. Additionally, the plaintiffs contributed 28,000 

pounds of pollen, 31 honey drums, and a 250 pound propane 

bottle. The plaintiffs also co-signed an $89,000 promissory 

note. The proceeds of the loan were used to acquire a 

tableting machine, grinder and press and other equipment for 

the production and marketing of pollen. The defendants 

contributed a rental house and office buil.ding in exchange 

for capital stock in the venture. 

On May 8, 1982, the defendants transferred title of the 

rental property from P.C.L.D. Inc . to defendants 

individually. The defendants also mortgaged the office 

build-ing and. rental property to secure a personal loan in the 

amount of $1.09,000 without the knowledge or consent of 

plaintiffs. The plaintiff, Mrs. Bowman, testified that the 

defendant used corporate funds without consent or 

authorization to pay for his son's personal living expenses. 
The testimony further established that the defendant took the 

tableting and grinding machines to Colorado without the 

knowledge or consent of the plaintiffs. The plaintiffs 

repeatedly requested to examine the financial records of the 

corporation, but were refused. No payments have been made on 

the $89,000 loan, as a result, the plaintiffs credit rating 

has been ruined. 

On July 22, 1983, plaintiffs filed an action against 

defendants claiming corporate mismanagement and breach of 

fiduciary duty as corporate officers. Defendants 

counter-claimed for breach of settlement agreement, 

interference with contractual relations, breach of fiduciary 

duties, and defamation of character. 

On March 26, 1984, the plaintiffs petitioned for a 

preliminary injunction to enjoin defendants from transferring 

corporate money and property. An order to show cause hearing 

was held on April 20, 1984. The injunction was granted. It 

is from the injunction pendente lite order of the District 

Court which the defendants appeal. 

Two issues are before this Court: 

(1) Whether the District Court erred in issuing 

plaintiff's preliminary injunction without defendants 

presenting evidence at the show cause hearing. 

(2) Whether the findings of fact and conclusions of law 

in support of the preliminary injunction are clearly 

erroneous. 

Injunction proceedings are prescribed and regulated by 

Chapter 19, Title 27, of the Montana Code Annotated. 

Section 27-19-301, MCA and section 27-19-303, MCA 

correspondingly provide: 
"27-19-301. Notice of application - 

hearing. (1) No preliminary in junction 

may be issued without reasonable notice 

to the adverse party of the time and 

place of the making of the application 

therefor. 

"(2) Before granting an injunction order, 

the court or judge shall make an order 

requiring cause to be shown, as a 

specified time a.nd place, why the 

injunction should not be granted, and the 

adverse party may in the meantime be 

restrained as provided in 27-19-314. 

"27-19-303. Time of granting injunction, 

evidence required. (1) The injunction 

order may be granted after the hearing at 

any time before judgment. 

"(2) Upon the hearing each party may 

present affidavits or oral testimony. An 

injunction order may not be granted on 

affidavits unless: 

" (a) they are duly verified; and 

"(b) the material allegations of the 

affidavits setting forth the grounds for 

the order are made positively and not 

upon information and belief. 

" (3) Upon the hearing of a contested 

application for an injunction order, a 

verified answer has the effect only of an 

affidavit. " 

In the instant case, notice of the hearing on the preliminary 

injunction was given to defendants. An order to show cause 

hearing was had. The counsel of both parties were present. 

The defendants submit that the court granted the injunction 

after hearing only the plaintiffs' side of the case. The 

defendants claim they were not given any opportunity to 

present evidence as to why the preliminary injunction should 

not be issued as provided by section 27-19-303(2), MCA. 

The District Court record indicates otherwise. 

Following a presentation of evidence the court asked if there 

was "anything further?" The plaintiffs sumrna.rized their 

position to the court. The defendants remained silent. It 
is at this point the court ruled and requested plaintiffs 

counsel to submit proposed findings of fact and conclusions 

of law. Moreover, the District Court record indicates that 

defendants did not raise an objection or request to provide 

an offer of proof at the close of the hearing. The 

defendants simply failed to raise this issue in the District 

Court. We hold this issue cannot be ra.ised for the first time 

on appeal. We have repeatedly stated that this Court will 

not consider questions of claimed error not raised or 

presented to the trial court. Northern Plains Resource 

Council v. Board of Natural Resources and Conservation 

(1979), 181 Mont. 500, 594 P.2d 297; Hayes v. J. M. S. Const. 

(1978), 176 Mont. 513, 579 P.2d 1225; Kearnes v. McIntyre 

Const. Co. (1977), 173 Mont. 239, 567 P.2d 433. 

The defendants argue on appeal that the District Court 

failed to exercise independent judgment by adopting the 

plaintiffs1 proposed findings. Specifically, the defendants 

claim the District Court erred in making the following 

findings : 

(1) The plaintiffs and defendants were incorporators of 

the corporation in question; 

(2) The plaintiffs were directors of the corporation; 

(3) The defendants transferred ownership of the rental 

owned by P.L.C.D., Inc. to John R. Prater and Geraldine 

Prater; 

(4) The tableting machine and grinder were removed to 

Colorado by John Prater; 

(5) The defendants surrendered possession of the office 

building; 

(6) The defendants failed to show the plaintiffs the 

corporation's financial record; and 
(7) No payments have been made to the plaintiffs on a 

promissory note, as a result their credit rating has been 

ruined. 

The plaintiffs claim the District Court's findings are 

supported by the record. We agree. 

The standard for review of findings made by a district 

court is the same whether the district court has prepared 

them or has adopted a party's proposed findings and 

conclusions. Goodmundson v. Goodmundson (1982), 655 P.2d 

509, 39 St.Rep. 2295; In re the Marriage of LeProuse (Mont. 

1982), 642 P.2d 526, 39 St.Rep. 1053; City of Billings v. 

Public Service Commission (Mont. 1981), 631 P.2d 1295, 38 

St.Rep. 1162. "Although the practice is disapproved, the 

fact that the District Court substantially adopted the 

findings proposed by respondent's counsel does not change the 

standard of review by this Court." In re the Marriage of 

Hunter (Mont. 1982), 639 P.2d 489, 39 St. Rep. 59. We must 

ascertain whether the "clearly erroneous standard of Rule 

52 (a) supports the findings on appeal." Speer v. Speer 

(Mont. 1982), 654 P.2d 1001, 39 St.Rep. 2204; In re the 

Marriage of Jensen (Mont. 1981), 631 P.2d 700, 38 St.Rep. 

1109. Rule 52(a) M.R.Civ.P. provides, in part, that 

"findings of fact shall not be set aside unless clearly 

erroneous, and due regard shall be given to the opportunity 

of the trial court to judge of the credibility of the 

witnesses." This rule reiterates our function as an 

appellate court. In General Mills Inc. v. Zerbe Bros., Inc. 

(Mont. 1983), 672 P.2d 1109, 40 St. Rep. 1830, we defined 

this function: 

"We cannot deviate from our function as 

an appellate court and reverse the 

District Court's decision. Our functions 
do not include a retrial of the case. We 

will not substitute our judgment for that 

of the trial court. We are 'confined to 

determining whether there is substantial 

credible evidence to support the findings 

of fact and conclusions of law' Cameron 

v. Cameron (1978), 179 Mont. 219, 227 587 

P.2d 939, 344; In the Matter of the 

Estate of LaTray (1979), 183 Mont. 141, 

598 P.2d G19; Olson v. Westfork 

Properties, Inc. (1976), 171 Mont. 154, 

557 P.2d 821; Hornung v. Estate of 

Lagerquist (1970), 155 Mont. 412, 473 

P.2d 541.'' 

We disagree with defendants ' contention that the 

findings and conclusions adopted by the District Court as a 

result of the hearing are clearly erroneous. Specifical-ly, 

the record supports the District Court's findings that the 

defendants as well as the plaintiffs were incorporators a.nd 

served as directors of the corporation. The plaintiff, Mrs. 

Bowman testified that her husband and herself were 

incorporators of all three corporations. She also claimed 

she was a director. The Bowmans' testimony likewise supports 

the remaining findings made by the trial court. The findings 

are further substantiated by plaintiffs' warranty deed and 

quit claim deed exhibit evincing the transfer of the rental 

house from P. L. C. D. , Inc. , to the defendants. The evidence 

will he viewed in the light most favorable to the prevailing 

party. Cameron v. Cameron (1978), 179 Mont. 219, 587 p.26 

939. We hold substantial, credible evidence supports the 

District Court's findings. The issuance of the injunction 

was proper. The order of the District Court is affirmed. 
We concur: