No. 13757

INTHE SUPREME COURT OF THE STATE OF MONTANA
1977

THEODORE C. KARTES, Plaintiff and Respondent,

DOROTHYA. KARTES,and EMILY J. KARTES,
Defendants and Appellants.

Appeal from: District Court of the Eighteenth Judicial District, Honorable

### W. W. Lessley, Judge presiding.
Counsel of Record:

For Appellants: Landoe, Gary and Planalp, Bozeman, Montana Hjalmar B. Landoe argued, Bozeman, Montana Gordon Carlson argued, Roseburg, Oregon

For Respondent: Larry W. Moran argued, Bozeman, Montana

(. ' I Filed:- Submitted: September 22, 1977 Decided:

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## 30rag 'w6 jMr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court. This case involves an intra-family dispute regarding the ownership of realproperty located in Gallatin County, Montana. Plaintiff, Theodore C. Kartes, brought the principal action in the DistrictCourt,GallatinCounty, asking a constructive trust be imposed upon the property for his benefit, and alleging a case of adverse possession, and by reason thereof,possession of the property. Following a non-jury trial, a judgmentwas entered for plaintiff. Defendants,DorothyA. Kartes and Emily J. Kartes, appealed from this judgment. During the pendency of the appeal,defendants filed a petition seeking remand of the cause to the District Court to permit filing of a motion for

new trial based on the ground of newly discovered evidence. All proceedings before this Court were stayed and the cause remanded to the District Court for the purpose of filing a motion for new trial based on newly discovered evidence. Defendants' motion for new trialwas denied following a hearing in the District Court. From this order defendants raise a second appeal. Defendants' two companion appeals,designated as Cause Nos. 13299, and 13757 respectively,and ensuing issues are combined for review. During oral argument of the second appeal,No. 13757,both parties argued the merits of the first appeal,No. 13299. Due to the subjectmatter covered, this Court deems any objectionwaived as to the reviewing and deciding of both appeals together. The parties to this appeal are brother and sisters. The property in disputewas acquired in 1936 with legal title being placed in the name of Amanda L. Myers,mother of plaintiff and defendants. The theories, conclusions and evidence offered by both litigantswere at all times diametrically opposed. Due to this conflictof evidence, the following findingsof fact from the DistrictCourt are pertinent to this appeal: "ThatPlaintiff and Amanda L. Myers jointly agreed that although legal title to the property would be placed in the name of Amanda L. Myers, the property was nevertheless to be considered the separate property of Plaintiff,and Plaintiff would pay back the funds advanced by decedent,Amanda L. Myers, used in its purchase."Thatat the time Plaintiff entered the United States Navy in 1942,Plaintiff executed a Power of Attorney to Amanda L. Myers, giving her fullpower and authority to transact business in Plaintiff's name during the period he was in the service. Amanda L. Myers,while Plaintiff was in the service, through use of the Power of Attorney, acquired and used for her own purposes the approximate sum of $2,800.00, on deposit in Plaintiff's bank account. Use of such fundswas in addition to sums theretofore, and thereafterpaid Amanda L. Myers by Plaintiff.
"Thatat the time the Power of Attorney was executed by Plaintiff to decedent, Amanda L. Myers in Helena, Montana, in 1942,decedent,Amanda L. Myers, also

- executed and delivered a deed conveying the property described in Finding 1, to Plaintiff. Both the Power of Attorney and the deed were left in possession of decedent,Amanda L. Myers. That in 1946,Plaintiffwas married, atwhich time he was expelled from the family home. All papers, documents, and other recordsbelonging to the Plaintiff, including the deed and Power of Attorney, were retained by the decedent, Amanda L. Myers, or Defendant,Dorothy A. Kartes, with whom Plaintiff resided prior tomarriage, and have since been misplaced or lost.

"That on several occasions decedent,Amanda L. Myers made statements recognizing Plaintiff's ownership of the property described in Finding 1. One such statement was made in 1942,after return from Helena, Montana, when Plaintiff enlisted into the service, decedent, Amanda L. Myers, stating to her husband in the presence of Plaintiff's witness, Ray P. Myers, Jr., to the effect that shehad signed a deed conveying the property to the Plaintiff. At about this same time another statement was made by decedent,Amanda L. Xyers, to Plaintiff's witness, Donna Hoell, to the effect that Plaintiff had paid her more than she had due with respect to the real estate, and she had given Plaintiff a deed to the property. Subsequently, in 1946,decedent,Amanda L. Myers, stated to Plaintiff's witness, Kenneth Gee, to the effect that shewould like to lease the property described in Finding 1 to him, but could not do so, and then took Mr. Gee to the Ryegate, Montana, area and offered to lease him certainproperty owned by her in thatvicinity.

"That the undated deed notarized on March 11, 1968, recordedAugust 

### 4, 1972,and purportedly conveying the property described in Finding 1 to the Defendants, is a nullity and can be given no legal effect. "Thatboth Defendants stated during the course of the trial of this matter that their claimed ownershipwas based solely on the deed described in Finding 15, and on no other basis.

"Thatat no time since 1936, and to date has any effort been made by decedent,Amanda L. Myers, and Defendants to legally remove Plaintiff from the premises described in Finding 1.; further, such persons have never demanded that he remove himself from the premises, without being legally forced to do so."Thatdecedent,Amanda L. Myers, never personally advised the Plaintiff that she claimed ownership of the realproperty described in Finding 1,nor did said decedent ever personally advise Plaintiff that the agreementunder which title was placed in her name was no longer recognized as valid and binding.
"ThatAmanda L. Myers died onApril 20, 1973. Thereafter, an estate proceeding was opened in Oregon, which estate proceeding does not concern itself with title to the real property described in Finding 1."
The dispositive issue of defendants' first appeal is whether substantial credible evidence exists to support the DistrictCourt's findingsof fact and conclusions of law. The issue of defendants' second appeal is whether the District Court's refusal to grant a motion for new trial, or in the alternative, a motion to admit newly discovered evidence was error. Defendants' second appeal will be resolved firstbefore discussing the merits of the principal appeal. The question of new trials on the ground of alleged "newly discovered" evidence is statutorily covered by Rules 59 and 60, M.R.Civ.P., and section 93-5603,R.C.M. 1947. The basic criteria for determining new trials on alleged "newly discovered" evidence is: 1. The substantial rights of the party moving for new trial must be materially affected. 2. The "newlydiscovered" evidence sought to be introducedmust be material to the issue involved in the trial. 3. The "newly discovered" evidence must be such as could not have been discovered and produced at trialwith the exercise of reasonable (or "due",per Rule 60,M.R.Civ.P.1 diligence, or could not have been discoveredby reasonable diligence in time tomove for a new trial under Rule 59, M.R.Civ.P. In addition to the statutes and procedural rules,Montana has a wealth of case law on the question of "newlydiscovered" evidence. This Court, in Kerrigan v. Kerrigan (1943),115 Mont. 136, 144, 139 P.2d 533,placed the burden on the moving party to show: 1. The alleged "newly discovered" evidence came to his knowledge after the trial; 2. Itwas not a want of diligence which precluded its earlier discovery; 3. Themateriality of the evidence is sogreat itwould probably produce a different result on retrial; and, 

### 4. The alleged "newevidence" is notmerely cumulative, not tending only to impeach or discreditwitnesses in the case.Where the moving party in a motion for new trial on the ground of "newlydiscovered"evidence has had the books and documents inpossession, fromwhich he later "discovers" the "newevidence",the motion will be denied, even though the evidence itselfmay be material. Rand v. Kipp (1902), 27 Mont. 138, 142, 69 P. 714. The burden rests on the defendants to show there was no want of diligence which precluded earlier discovery of the evidence. This burden was notmet. The alleged "newly discovered" evidence, consisting of a letter, was at all times in the exclusive possession of the defendants. The defendants were ordered by the District Court to produce documentspursuant to Rule 34,M.R.Civ.P. Three times plaintiff filedmotions concerning the production of evidence by the defendants, and one time the defendants filed

a likemotion. These motions indicate the defendantshad every opportunity not only to voluntarily prepare their case, but were also constantly under court order to produce. Nevertheless, defendants were not diligent in their efforts to properly prepare for trial. The testimony at the hearing on themotion for new trial indicatesneither defendantmade a significant effort to go through the books, records and papers of which the alleged "newly discovered" evidence is a part. The original issue of title and ownership of the ranch

was contested at every stageby the continuous assertion of conflicting claims. The alleged "newly discovered" evidence presents nothing new to the positions of the parties and presents nothing so criticallymaterial as to reasonably require a different result on retrial. At best, the alleged "newlydiscovered" evidence ismerely cumulative. The findingsof fact,conclusionsof law and judgment entered by the District Court in the principal case specified several different legal findingsand conclusions. Any of these alone would sustain judgment for the plaintiff. Defendants asserted during the trial of the principal case that their title and ownership was based solely upon a deed. The DistrictCourt found that no deed existed. The District Court also found in the principal case that the plaintiff possessed the property adversely for the required period of time. The alleged "newly discovered" evidence does not affect these two findingsof the District Court. The burden of rebutting legal presumptions of the correctness of the District Court's findings and conclusions, and to establish the relief requested by solid, commanding evidence, rests exclusively on the defendants. This burden wasnotmet. Defendants' second appeal,No. 13757, fails. Having affirmed the DistrictCourt's denial of defendants' motion for a new trial, this Court now directs its attention to defendants' principal appeal. Defendants present numerous issues for review. The dispositive issue iswhether substantial credible evidence exists to support the District Court's findingsof fact and conclusions of law. The overall legal issue--ownership and title to the property--

was the subject of extensive testimony and introduction of exhibits by the litigantsduring the principal trial. At all times,the position of the respective parties was diametrically opposed. Plaintiff claimed ownership and title to the property under several theories,and defendants likewise claimed ownership and title to the property by a purported deed. The District Court resolved the issue of title and ownership after a careful review of all testimony and evidence received in the case. From the conflicting versions presented by plaintiff and defendants, the DistrictCourt chose to accept plaintiff's theories and ruled: "That in addition to being invalid and void as a breach of trust, the deed upon which Defendants assert and claim ownership (notarized March 11, 1968, recorded August 4, 1972) is invalid because it is not a genuine document, and does not contain the genuine signatureof the decedent,Amanda L. Myers." The District Courtwas afforded the opportunity of seeing the witnesses,hearing them testify, and thus was in the best position to understand and construe the testimony in light of all surrounding circumstances. Davis. v. Smith (1968), 152 Mont. 170, 176, 448 P.2d 133. This Court ispermitted to review only the cold record according to the established procedure for appellate review. In Luppold v. Lewis (1977), Mont. 

## , 563 P.2d 538, 540, 34 St.Rep. 227, this Court stated: "Whenreviewing findingsof fact and conclusions of law of a district court, sittingwithout a jury, this Court has repeatedly held such findingsand conclusions will not be disturbed if supported by substantial evidence and by the law. (Citations omitted.) When reviewing evidence itwill be viewed in the lightmost favorable to the prevailing party in the district court, and the credibility of witnesses and the weight assigned to their testimony is for the determination of the district court in a nonjury trial. 

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In adhering to the guidelines set forth in L~pp~ld, This Court reviews the evidence existing to support the findingsof fact and conclusions of law of the District Court.Extensive testimonywas given as to the validity of the signature on defendants' purported deed. Plaintiff produced a document examiner and handwriting expertwho testified: "Q.Are you stating an opinion that the signature on this deed is a forgery? A. I feel it is,yes. "9. You feel it is? A. Yes." Defendants contradicted this testimonywith their own document examiner and handwriting expertwho testified:
"Q. From the examinations that you have made here, have you formed a conclusion or an opinion as to whether the signature that appears on the deed document of 1968 is or is not a genuine signature of Amanda L. Myers? A. Yes; Ihave. "Q. What isyour opinion? A. That the questioned deed signature of 1968 is a genuine signature by Amanda Myers." Both litigantswent to great lengths to discredit the testimony of the other party's expert. The DistrictCourt, after seeing the witnesses, and hearing their testimony in light of all the surrounding circumstances,chose to accept the plaintiff's evidence. This Courtmust accept the DistrictCourt's judgment on this point: 

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## * * * The credibility and weight given to witnesses, however, is not for this Court to determine. This is a primary functionof a trial judge sittingwithout a jury; it is of special consequencewhere the evidence is conflicting. 

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Miller v. Fox (19771, Mont

# . I P.2d I 34 St.Rep. 1367, 1370, quoting Hellickson v. Barrett Mobile Home Transport, Inc. (1973),161Mont. 455, 45i, 507 P.2d 523. No purpose is served by setting forth additional testimony before the District Court. This Court does not choose to second guess the District Court in matters involving conflicts of testimony. The credibility of witnesses and the weight assigned to their testimony is solely for the determination of the DistrictCourt. Additional evidence before the District Court to support its decision is: 1. Besides plaintiff's own testimony,plaintiff presented witness Kenneth Gee who stated the property had never been called anything but the "Ted Kartes" place; 2. Plaintiff'switness Donna Hoell stated the property had the reputation of being the "Ted Kartes"place; 3. Plaintiff's witness Ray Myers, Jr. stated the plaintiff's father tried to buy the "TedKartes" ranch from the plaintiff;

### 4. DefendantDorothy Kartes,upon being called as an adverse witness, stated she recalled overhearing a verbal agreementbetween plaintiff and Amanda L. Myers concerning the property. Dorothy also stated that at one time,Amanda L. Flyers wanted plaintiff to receive the property and that plaintiff could pay for it; and 5. Defendant Emily A. Kartes, upon being called as an adversewitness, admitted referring to the property as "Ted's beautiful ranch". During this examination as an adverse witness, Emily also stated thatAmanda L. Myers had requested that Emily prepare the deed which defendants rely

on to claim ownership of the property. The functionof this Court is not to determine which version or theory ismore plausible. This Court must only determine that substantial evidence exists to support the findingsof fact and conclusions of law of the District Court. Following a careful review of the District Court record, this Court finds sufficient evidence to support the findingsof fact and conclusions of law of the District Court. The judgment of the DistrictCourt is affirmed on both appeals,Nos. 13299 and 13757.

We Concur:

Justices