Hawkins v. Hawkins ( 2002 )


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  •                                           No. 00-815
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    2002 MT 119N
    SHERMAN P. HAWKINS,
    Plaintiff and Appellant,
    v.
    CECIL HAWKINS,
    Defendant and Respondent.
    APPEAL FROM:         District Court of the Thirteenth Judicial District,
    In and for the County of Yellowstone,
    The Honorable Russell C. Fagg, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    Sherman P. Hawkins, Pro Se, Deer Lodge, Montana
    For Respondent:
    Bruce F. Fain; Murphy, Kirkpatrick & Fain, Billings, Montana
    Submitted on Briefs: April 4, 2002
    Decided: June 6, 2002
    Filed:
    __________________________________________
    Clerk
    Chief Justice Karla M. Gray delivered the Opinion of the Court.
    ¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
    Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a
    public document with the Clerk of the Supreme Court and shall be reported by case title,
    Supreme Court cause number and result to the State Reporter Publishing Company and to
    West Group in the quarterly table of noncitable cases issued by this Court.
    ¶2     Sherman      P.   Hawkins      (Sherman)       seeks    to    recover      from    his
    brother, Cecil Hawkins (Cecil), damages for conversion and fraud
    relating to real and personal property in which they and their two
    sisters hold a joint tenancy.                     Following a bench trial, the
    Thirteenth Judicial District Court, Yellowstone County, ruled that
    Sherman had not sustained his burden of proof and entered judgment
    that Sherman take nothing for his claims and that Cecil is entitled
    to his reasonable costs in defending this action.                       Sherman appeals.
    We affirm.
    ¶3     Sherman lists six issues on appeal.                    Cecil, however, argues
    that because the notice of appeal identified only the "decision of
    the district court dated November 14 [sic], 2000" as the judgment
    or order from which appeal is taken, the issues should be limited
    to those issues arising out of the District Court's November 15,
    2000, Findings of Fact, Conclusions of Law and Judgment.                          We agree.
    See Lewis v. Puget Sound Power & Light Co., 
    2001 MT 145
    , ¶ 27, 
    306 Mont. 37
    , ¶ 27, 
    29 P.3d 1028
    , ¶ 27.                       We will not consider the
    2
    issues Sherman attempts to raise relating to matters outside the
    findings, conclusions, and judgment from which appeal has been
    taken.    We consider only whether the District Court's findings of
    fact are clearly erroneous and whether its conclusions of law are
    correct.
    ¶4   Our "clearly erroneous" standard of review of a trial court's
    findings of fact requires consideration of whether the findings are
    supported by substantial evidence; whether the district court
    misapprehended the effect of the evidence; and whether our review
    of the record leaves us with a definite and firm conviction that a
    mistake has been made.     See McCauley v. Thompson-Nistler, 
    2000 MT 215
    , ¶ 18, 
    301 Mont. 81
    , ¶ 18, 
    10 P.3d 794
    , ¶ 18.                   We review
    conclusions    of   law   to   determine    whether   they    are    correct.
    McCauley, ¶ 18.
    ¶5    Sherman challenges eight of the District Court's findings.
    He first objects to the statement in Finding No. 3 that the
    parties' stepfather sold his life estate in the property to Cecil.
    Sherman    contends   there   was   no    sale   because    the    deed   was
    unrecorded.
    ¶6   An unrecorded deed is valid as between the parties and as to
    those who have notice of it.         Section 70-21-102, MCA.          Sherman
    testified at trial that he had no notice of the sale of the life
    estate.    Thus, his testimony would support a finding that the sale
    was invalid as to him.     The District Court's finding, however, does
    not state that the sale was valid as to Sherman, but only that
    "[b]efore his death in 1989, [the stepfather] sold his life estate
    3
    to Cecil Hawkins for one dollar so Cecil could try to save the
    ranch."   To that extent, the finding is supported by substantial
    credible evidence and is not otherwise clearly erroneous.
    ¶7   Sherman next objects to the statements in Finding Nos. 4, 5,
    and 7 that Cecil was "sav[ing] the ranch" and "operat[ing] the
    property" because, according to Sherman, the property was not
    operated by its joint tenants as a working ranch but instead was
    leased out, requiring only that the joint tenants administer the
    lease.    Cecil presented substantial evidence at trial concerning
    the work he did to maintain the ranch property, including fixing
    up--and later selling--the house on the ranch and repairing fencing
    and wells.   He also presented   the testimony of an employee of a
    property management company who estimated that his company would
    charge $6,000 per year to manage the ranch.       We conclude the
    references to Cecil "sav[ing] the ranch" and "operat[ing] the
    property" in Finding Nos. 4, 5, and 7 are not clearly erroneous.
    ¶8   In objecting to the first sentence of the District Court's
    Finding No. 8, stating he alleged Cecil converted ranch property,
    Sherman says he claimed conversion of money.    On this point, the
    record wholly supports Sherman's claim and, consequently, that part
    of Finding No. 8 is clearly erroneous.     The second sentence of
    Finding No. 8 states that Sherman alleges Cecil took "Hawkins
    property proceeds that belong to Sherman."       Sherman does not
    challenge that portion of the finding, which is supported in the
    record.
    4
    ¶9     Sherman also objects to the District Court's reliance in
    Finding Nos. 9, 10, and 11 on Cecil's "Transaction Report" instead of other
    documents Sherman claims to have offered as evidence. In the "Transaction Report," Cecil
    itemized the income and expenses of the property for each year from 1989 through 2000.
    Our review of the record confirms that, although Sherman asked various witnesses to refer to
    various other documents during their testimony, those documents were not introduced into
    evidence. The "Transaction Report" was the only document offered or admitted into
    evidence. We hold that the District Court did not err in relying upon the "Transaction
    Report."
    ¶10    In order to be successful on either of his claims, Sherman
    must prove that he suffered damages.               See Lane v. Dunkle (1988), 
    231 Mont. 365
    , 368, 
    753 P.2d 321
    , 323 (elements of conversion); Bartlett
    v. Allstate Ins. Co. (1996), 
    280 Mont. 63
    , 71, 
    929 P.2d 227
    , 231-32
    (elements of fraud).          He failed to do so.           Only Sherman testified
    that Cecil unlawfully took control of any proceeds belonging to him.
    All of the other evidence showed that Cecil used all income from
    the property to pay expenses relating to the property.                     Further, the
    testimony of the credit officer for Farm Credit Services made it
    clear that the joint tenants would have lost the property without
    Cecil's intervention.         Credibility of witnesses and the weight to be
    afforded their testimony are matters to be determined by the trial
    court.     Matter of J.M.W.E.H., 
    1998 MT 18
    , ¶ 34, 
    287 Mont. 239
    , ¶ 34,
    
    954 P.2d 26
    , ¶ 34 (citations omitted).
    5
    ¶11    We conclude the error in the District Court's Finding No. 8 is
    harmless because of Sherman's failure to establish any damages. We
    further hold that the District Court was correct in concluding that Sherman is entitled to take
    nothing from his claims.
    ¶12    In his reply brief, Sherman raises a new issue regarding
    Cecil's alleged failure to deliver a transcript.                       That argument is
    unpersuasive because, under Rule 9(b), M.R.App.P., it is the duty
    of    the    appellant,      not    the    respondent,       to    order    and    pay    for
    transcripts.       In addition, we do not consider issues raised for the
    first time in a reply brief.               See Rule 23(c), M.R.App.P.; Loney v.
    Milodragovich, Dale & Dye, P.C. (1995), 
    273 Mont. 506
    , 512, 
    905 P.2d 158
    , 162.
    ¶13    Affirmed.
    /S/ KARLA M. GRAY
    We concur:
    /S/ JIM RICE
    /S/ JIM REGNIER
    /S/ W. WILLIAM LEAPHART
    6
    Justice Patricia O. Cotter dissents.
    ¶14    I dissent. Although I agree that Sherman failed to present evidence to substantiate his
    claims against Cecil, I would conclude that such failure was due in significant part to Cecil’s
    refusal to answer Sherman’s discovery requests, and the District Court’s de facto
    endorsement of that refusal. Sherman quite reasonably requested the production of bank
    statements to verify the income and expenses of the ranch property. Cecil refused to provide
    the statements, and produced instead a compilation of expenses that he had prepared, the
    accuracy of which Sherman could not possibly verify without having access to the underlying
    bank statements.
    ¶15    The fact that Sherman is in prison made it virtually impossible for him to obtain such
    statements in any other way, and he therefore had to rely on the discovery process and the
    Court’s enforcement of the rules of discovery to get this information. Cecil refused to
    comply with the Rules, and the Court let him get away with it.
    ¶16    I would reverse and remand, and compel Cecil to produce the bank statements
    Sherman requested. I dissent from our refusal to do so.
    /S/ PATRICIA COTTER
    7
    

Document Info

Docket Number: 00-815

Filed Date: 6/6/2002

Precedential Status: Precedential

Modified Date: 3/3/2016