No. 13757 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THEODORE C. KARTES, 

Plaintiff and Respondent, 

DOROTHY A. 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 : Ccc 30 rag 

'w6 j 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion 

of the Court. 

This case involves an intra-family dispute regarding 

the ownership of real property located in Gallatin County, 

Montana. Plaintiff, Theodore C. Kartes, brought the 

principal action in the District Court, Gallatin County, 

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 judgment was entered for 

plaintiff. Defendants, Dorothy A. 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 trial was 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 subject matter covered, 

this Court deems any objection waived as to the reviewing 

and deciding of both appeals together. 

The parties to this appeal are brother and sisters. 

The property in dispute was 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 litigants were at all times 

diametrically opposed. Due to this conflict of evidence, 

the following findings of fact from the District Court are 

pertinent to this appeal: 

"That Plaintiff 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. 
"That at the time Plaintiff entered the United States 

Navy in 1942, Plaintiff executed a Power of Attorney 

to Amanda L. Myers, giving her full power 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 funds was in addition to sums 

theretofore, and thereafter paid Amanda L. Myers by 

Plaintiff. 

"That at 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, Plaintiff was 

married, at which time he was expelled from the family 

home. All papers, documents, and other records belonging 

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 to marriage, 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 she had 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 

she would 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 

certain property owned by her in that vicinity. 

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

recorded August 4, 1972, and purportedly conveying the 

property described in Finding 1 to the Defendants, is a 

nullity and can be given no legal effect. 

"That both Defendants stated during the course of the 

trial of this matter that their claimed ownership was 

based solely on the deed described in Finding 15, and on no 

other basis. 

"That at 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. 
"That decedent, Amanda L. Myers, never personally 

advised the Plaintiff that she claimed ownership of the 

real property described in Finding 1, nor did said 

decedent ever personally advise Plaintiff that the 

agreement under which title was placed in her name was 

no longer recognized as valid and binding. 

"That Amanda L. Myers died on April 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 

District Court's findings of 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 first before 

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 "newly discovered" evidence sought to be 

introduced must 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 trial with 

the exercise of reasonable (or "due", per Rule 60, M.R.Civ.P.1 

diligence, or could not have been discovered by reasonable 

diligence in time to move 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 "newly discovered" 

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. It was not a want of diligence which precluded its 

earlier discovery; 

3. The materiality of the evidence is so great it would 

probably produce a different result on retrial; and, 

4. The alleged "new evidence" is not merely cumulative, 

not tending only to impeach or discredit witnesses in the case. 
Where the moving party in a motion for new trial on the 

ground of "newly discovered" evidence has had the books and 

documents in possession, from which he later "discovers" the 

"new evidence", the motion will be denied, even though the 

evidence itself may 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 not met. 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 

documents pursuant to Rule 34, M.R.Civ.P. Three times 

plaintiff filed motions concerning the production of 

evidence by the defendants, and one time the defendants filed 

a like motion. These motions indicate the defendants had 

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 the motion for new trial indicates neither 

defendant made 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 stage by the continuous assertion of 

conflicting claims. The alleged "newly discovered" evidence 

presents nothing new to the positions of the parties and 

presents nothing so critically material as to reasonably 

require a different result on retrial. At best, the alleged 

"newly discovered" evidence is merely cumulative. 

The findings of fact, conclusions of law and judgment 

entered by the District Court in the principal case specified 

several different legal findings and 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 District Court 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 findings of 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 was 
not met. Defendants' second appeal, No. 13757, fails. 

Having affirmed the District Court'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 

is whether substantial credible evidence exists to support the 

District Court's findings of 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 litigants during 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 District Court 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 signature of 

the decedent, Amanda L. Myers." 

The District Court was 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 is permitted 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: 

"When reviewing findings of fact and conclusions of law 

of a district court, sitting without a jury, this Court 

has repeatedly held such findings and conclusions will 

not be disturbed if supported by substantial evidence 

and by the law. (Citations omitted.) When reviewing 

evidence it will be viewed in the light most 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. * * * " 

In adhering to the guidelines set forth in L~pp~ld, 

This Court reviews the evidence existing to support the 

findings of fact and conclusions of law of the District 

Court. 
Extensive testimony was given as to the validity 

of the signature on defendants' purported deed. Plaintiff 

produced a document examiner and handwriting expert who 

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 testimony with their own 

document examiner and handwriting expert who 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; I have. 

"Q. What is your opinion? A. That the questioned 

deed signature of 1968 is a genuine signature by 

Amanda Myers." 

Both litigants went to great lengths to discredit the 

testimony of the other party's expert. The District Court, 

after seeing the witnesses, and hearing their testimony in 

light of all the surrounding circumstances, chose to accept 

the plaintiff's evidence. This Court must accept the 

District Court's judgment on this point: 

"' * * * The credibility and weight given to witnesses, 

however, is not for this Court to determine. This is 

a primary function of a trial judge sitting without a 

jury; it is of special consequence where the evidence 

is conflicting. * * * '" 

Miller v. Fox (19771, Mon t . I P.2d I 34 

St.Rep. 1367, 1370, quoting Hellickson v. Barrett Mobile 

Home Transport, Inc. (1973), 161 Mont. 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 District Court. 

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's witness 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 "Ted Kartes" ranch from 

the plaintiff; 
4. Defendant Dorothy Kartes, upon being called as an 

adverse witness, stated she recalled overhearing a verbal 

agreement between 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 

adverse witness, admitted referring to the property as 

"Ted's beautiful ranch". During this examination as an 

adverse witness, Emily also stated that Amanda L. Myers had 

requested that Emily prepare the deed which defendants rely 

on to claim ownership of the property. 

The function of this Court is not to determine which 

version or theory is more plausible. This Court must only 

determine that substantial evidence exists to support the 

findings of 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 findings of 

fact and conclusions of law of the District Court. 

The judgment of the District Court is affirmed on both 

appeals, Nos. 13299 and 13757. 

We Concur: 

Justices