Hawkins v. Hawkins

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