No. 93-323 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

DONNA MARRY, 

Plaintiff and Appellant, 

-vsMISSOULA COUNTY SHERIFF'S 

DEPARTMENT AND COUNTY OF MISSOULA, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert K. Ogg; Grenfell & Ogg, Missoula, Montana 

For Respondent: 

Michael W. Sehestedt, Deputy Missoula County 

Attorney, Missoula, Montana 

Submitted on Briefs: September 30, 1993 

Decided: December 28, 1993 

Filed: 
Justice John Conway Harrison delivered the Opinion of the Court. 

Appellant Donna Marry (Marry) appeals the Fourth Judicial 

District Court, Missoula County, order which amended its original 

findings of fact and conclusions of law in response to Marry's 

motion for new trial and amendment of judgment. We reverse and 

remand. 

The issue is whether the District Court abused its discretion 

by amending a finding of fact solely to support a conclusion of 

law, which barred Marry from recovering damages. 

This case involved a motor vehicle accident between Marry and 

a Deputy Sheriff of the Missoula County Sheriff's Department. The 

parties disputed liability; each party contended that the other was 

negligent per se. 

The District Court heard the case without a jury and entered 

its original findings of fact and conclusions of law on March 19, 

1993. Finding of Fact No. 7 read: 

The collision was caused equally by [Marry's] failure to 

yield the right of way and by [the] Deputy . . . [who 1 

exceedled] the speed limit. 

Conclusion of Law No. 6 read: 

The negligence of [Marry] and the negligence of [the 

Deputy] . . . contributed equally to the accident barring 

recovery by either party. 5 27-1-701 MCA [sic]. 

The court ordered that judgment be entered in favor of defendants 

with each party to pay their own costs. 

On April 1, 1993, Marry moved the court to make additional 

findings of fact concerning her damages. She also moved the court 
for a new trial or in the alternative to amend Conclusion of Law 

No. 6 to conform with 5 27-1-702, MCA. Marry argued that Finding 

of Fact No. 7 established that the parties were equally negligent 

and, thus, the clear mandate of 27-1-702, MCA, required the 

District Court to amend Conclusion of Law No. 6 to entitle Marry to 

recover fifty percent of the damages she sustained in the accident. 

In response to Marry's motion for new trial and amendment of 

judgment, the District Court, on May 6, 1993, entered an opinion 

and order. In that opinion and order, the court admitted that, 

given the facts, Conclusion of Law No. 6 was not consistent with 

Montana law on contributory negligence. See 5 27-1-702, MCA. The 

court stated: 

It was the intent of the [clourt that [Marry] take 

nothing in this action. The [c]ourtts finding of "equal" 

negligence allows for a recovery on the part of [Marry]. 

That was not the [c]ourtls intent. 

The court then amended Finding of Fact No. 7: 

The collision was primarily caused by [Marry's] failure 

to yield the right of way, and secondarily by [the] 

Deputy . . . [who] exceed[ed] the speed limit. 

Further, Conclusion of Law No. 6 was amended to read: 

The negligence of [Marry] being greater than the 

negligence of the Defendant, [Marry] is not entitled to 

recovery. 5 27-1-701 MCA [sic]. 

The court also denied Marry's motion for a new trial. Marry 

appeals the court's decision to amend Finding of Fact No. 7. 

Usually we will uphold a district court's findings of fact if 

substantial credible evidence supports those findings. Emcasco 

Ins. Co. v. Waymire (1990), 242 Mont. 131, 135, 788 P.2d 1357, 

1360; Robinson v. Schrade (1985), 215 Mont. 326, 328, 697 P.2d 923, 
925. However, when, as here, a district court amends a finding of 

fact to support a conclusion of law, we will review whether the 

district court abused its discretion. See Steer, Inc. v. Deplt of 

Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. 

Marry maintains that the District Court abused its discretion 

by failing to follow the mandate of Rule 52(a) and (b), M.R.Civ.P., 

which require the court to find the facts first and then base its 

conclusions of law on those facts and to only amend its findings 

after reviewing the evidence in the record. Marry argues, and we 

agree, that the District Court amended Finding of Fact No. 7 solely 

to support Conclusion of Law No. 6 which prohibited her from 

recovering damages. 

Rule 52(a), M.R.Civ.P., requires the district court to "find 

the facts specially and state separately its conclusions of law 

thereon . . . . II Rule 52(b), M.R.Civ.P., states that "the 

[district] court may amend its findings or make additional findings 

and may amend its judgment accordingly." The court must, however, 

review the evidence in the record before amending its findings. 

See Ring v. Hoselton (1982), 197 Mont. 414, 422, 643 P.2d 1165, 

1170. Read in conjunction, Rule 52(a) and (b), M.R.Civ.P., compel 

the district court to find the facts first and review the record 

prior to amending its findings of fact. Rule 52 (a) , M.R.Civ.P., 

also requires the court to base its conclusions of law on the facts 

that it finds. 

Initially, here, the District Court found that Marry and the 

Deputy were equally responsible for the collision. The court then 
erroneously concluded that neither party could recover damages 

under 5 27-1-702, MCA. Following Marry's motion for a new trial 

and amendment of judgment, the court admitted that Conclusion No. 

6 was not consistent with Montana law and that Finding No. 7 did 

not support the result it desired to achieve. Thus, the court 

amended Finding No. 7 and Conclusion No. 6 in its opinion and 

order. The court clearly noted that its intent in amending Finding 

No. 7 was to prevent Marry from recovering damages. 

The District Court did not, as required by Rule 52(b), 

M.R.Civ.P., review the evidence in the record when it amended 

Finding of Fact No. 7. In fact, the court, in its order, failed to 

state that it reviewed the evidence and determined that Finding of 

Fact No. 7 was incorrect. Instead, the District Court amended 

Finding No. 7 because it desiredto preclude Marry from recovering 

damages. 

Moreover, we note that both the original and amended 

Conclusion No. 6 dictated that Marry was barred from recovering 

damages. The District Court did not find the facts first, as 

required by Rule 52(a) M.R.Civ.P. Instead, the court fashioned a 

conclusion of law which barred Marry from recovering damages and 

then found facts to support that conclusion. We hold that the 

District Court abused its discretion when it arbitrarily, without 

reviewing the record, formed the facts to fit its already-fashioned 

conclusion of law. 

We reverse and remand this case to the District Court with 

instructions to reinstate original Finding of Fact No. 7 and to 
A $" 

--i - 

amend Conclusion of Law No. 6 so that it is consistent with Montana 

law. Further, the District Court is directed to make findings as 

to Marry's damages and enter judgment in favor of Marry to recover 

half of her damages. 

Reversed and remanded with instructions.