Hammer v. Hammer

No. 93-297
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
RALPH HAMMER,
Plaintiff and Appellant,
v.
MARY JO HAMMER and HAMMER FARMS,
INC., a Montana corporation,
Defendants and Respondents. DEC 1 4 1993
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CLERK O F SUPftLr,: *12LRT
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STATE OF MUfi TAW%
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APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Daniels,
The Honorable James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Loren J. OgToole, OgToole & OgToole, Plentywood,
Montana
For Respondent:
Ken W. Hoversland, Scobey, Montana
Submitted on Briefs: November 11, 1993
Decided: December 1 4 , 1 9 9 3
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Ralph Hammer (Ralph) appeals from portions of a judgment
entered by the Fifteenth Judicial District Court, Daniels County,
concerning the ownership of certain buildings; no appeal is taken
from the judgment insofar as it relates to a grain dryer. We
affirm.
The dispositive issue before us is whether the District Court
erred in concluding that a writing relied on by Ralph is
insufficient to establish cotenancy. As a result, we need not
address Ralphls argument that the court erred in also concluding
that he is estopped from asserting any claim against the buildings,
because his assertion of error vis-a-vis estoppel is premised on
his having established the cotenancy.
The conclusion at issue is based on the District Court's
findings of fact relating to the evidence presented in support of
the cotenancy. Thus, we review herein both findings of fact and
conclusions of law. A district court's findings of fact are
reviewed to determine if they are clearly erroneous. Steer, Inc.
v. Deplt of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601,
603. That standard encompasses a three-part test of substantial
evidence, misapprehension of the effect of the evidence, and
whether this Court is left with the definite and firm conviction
that a mistake has been committed. Interstate Prod. Credit Assln
v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.
Ralph claims a one-third ownership interest in a quonset, a
shop and granaries located on real property presently owned by
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Hammer Farms, Inc. Based on that asserted ownership interest,
Ralph claims that the defendants ousted him from possession and, as
a result, that he is entitled to a court sale of the buildings and
receipt of one-third of the proceeds.
Co-defendant Mary Jo Hammer (Mary Jo) is the widow of Ralphrs
deceased brother, Glenn. It is undisputed that Glenn Hammer
acquired sole title to the real property upon which the buildings
at issue are located from his parents on October 13, 1967; the
warranty deed included all buildings and improvements situated on
the real property. Glenn and Mary Jo lived on the property from
the date of acquisition until Glenn's death in 1984. Mary Jo
continues to reside there. Title to the property is held by co-
defendant Hammer Farms, Inc.
Ralph's claim of a one-third ownership interest in the
buildings is based on a writing allegedly executed by Glenn. The
writing reads as follows:
This is an agreement that Lloyd Hammer [another brother]
& Ralph Hammer own each one third interest in the shop,
quonset and four wood granaries located SW1/4 of 28 35
50. Also to use location for parking of a trailer house.
For this they will pay their share of the insurance
and taxes on the above mentioned property.
A signature, purportedly that of Glenn A. Hammer, follows. The
writing is not dated, witnessed or notarized. It was not recorded.
Ralph testified that Glenn executed the writing; Mary Jo could not
swear that the signature was Glenn's. Ralph could not testify as
to the date the writing was made. He testified that "it could bef1
that he had had possession of the writing for twenty to thirty
years. Neither Mary Jo nor Lloyd Hammer had ever seen the writing
prior to late 1989.
Boiled down to their essence, the District Court s findings of
fact relating to the writing reflect that the court did not find
Ralph's presentation in that regard credible. A trial court acting
as a finder of fact is in the best position to observe the
witnesses, including their demeanor and credibility. Nave v. State
Compensation Mut. Ins. Fund (1992), 254 Mont. 54, 58, 835 P.2d 706,
709. The weight of evidence and credibility of witnesses are
exclusively the province of the trier of fact. State v. Palmer
(1991), 247 Mont. 210, 214, 805 P.2d 580, 582. Here, the District
Court determined credibility, weighed the evidence and entered
findings based on substantial evidence. The findings do not
indicate that the court misapprehended the effect of the evidence;
nor does it appear that a mistake has been made. We hold that the
District Court's findings of fact relating to the writing are not
clearly erroneous.
On the basis of the record and its findings, the District
Court concluded that lP[t]he writing presented by the Plaintiff is
insufficient to establish cotenancy." We cannot say that this
conclusion was error as a matter of law.
The problems with the writing, insofar as they relate to
whether it proved Ralph's ownership interest, are too fundamental
to require extended discussion or citation to legal authority.
First, the authenticity of the writing is not established here
because whether Glenn actually executed the writing is
questionable. Even more important is the lack of a date on the
writing, or any other evidence fixing such a date in other than the
vaguest of terms. According to Ralph's own testimony, the writing
may have been executed as early as 1963. As noted above, Glenn did
not own the real property and buildings until late in 1967. Thus,
even assuming Glenn executed the writing, he may have done so while
the property was still owned by his parents. Moreover, at least
some of the buildings at issue are, in fact, permanently affixed to
the real property and, as such, are legally part of the real
property itself. Under fundamental legal principles, the writing
does not evidence any of the formalities required to transfer
ownership of, and title to, real property. The District Court did
not err in concluding that the writing was insufficient to
establish a cotenancy in Ralph.
Affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter a
We Concur:
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