                                                                                          October 1 2013


                                          DA 13-0071

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 282



TERRY J. WILLIS,

              Plaintiff and Appellant,

         v.

DAVID J. FERTTERER, DEBRA DIETZ,
and RICHARD FERTTERER,

              Defendants and Appellees,



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. CDV-97-1689
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        E. Lee LeVeque, Lee LeVeque Law Offices, PLLC; Great Falls, Montana

                For Appellees:

                        Paul R. Haffeman, James A. Donahue, Davis, Hatley, Haffeman & Tighe,
                        P.C.; Great Falls, Montana


                                                   Submitted on Briefs: August 28, 2013

                                                              Decided: October 1, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Terry Willis (Willis) appeals the findings of fact, conclusions of law, and order of the

Eighth Judicial District, Cascade County that deemed valid a warranty deed that conveyed

property from Willis to David Fertterer (Fertterer), and further determined that Fertterer had

not converted any funds that belonged to Willis. We affirm.

¶2     We address the following issues on appeal:

¶3     Whether substantial evidence supports the District Court’s findings of fact?

¶4     Whether the District Court properly determined that Willis failed to prove that
Fertterer had converted funds from Willis’s bank account?

                      PROCEDURAL AND FACTUAL BACKGROUND

¶5     Willis lived in Florida at the time of the events that gave rise to this action. Willis

visited Montana in 1988. Willis first met Fertterer, Fertterer’s wife Debra Ferterrer née

Dietz (Debra), Fertterer’s brother Richard (Dick), and Fertterer’s late father Richard Fertterer

Sr. (Richard Sr.) on this trip. The Fertterers live near Belt in Cascade County. Willis

developed a friendship with Fertterer, Debra, and Richard Sr.

¶6     Willis travelled to Montana several times in 1988 and 1989 to socialize and to

recreate. Willis also alleges that he delivered cocaine for Richard Sr. During one trip Willis

requested that Fertterer tell Willis if Ferterrer learned of Montana recreational property

available for sale.

¶7     Fertterrer learned in 1989, that the Weggeland Place (Weggeland), a property near the

Ferterrers’ residence, was up for sale. Fertterer called Willis to alert him. Willis made


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arrangements to travel to Montana to view the property. Willis viewed Weggeland with

Fertterer, Richard Sr., and Lillian Schmasow (Schmasow), a local realtor.

¶8     Willis signed a buy/sell agreement to purchase Weggeland on May 17, 1989. Willis

appointed Schmasow to be his attorney in fact for the transaction. Schmasow signed a

contract for deed and escrow agreement on Willis’s behalf. The contract for deed lists a final

purchase price of $240,700.32 plus interest. The contract states that this amount would be

paid in a $50,000.00 down payment and four installments of $50,388.75 due on August 30,

1989, November 30, 1989, February 28, 1990, and May 30, 1990. Willis made the

$50,000.00 down payment. A portion of those funds apparently represented proceeds from

illegal drug sales. The escrow agreement appointed First American Title Company (First

American) of Great Falls as escrow agent. The escrow agreement further required Willis to

pay each remaining installment through First American.

¶9     Willis opened a post office box at the Belt Post Office and a checking account at Belt

Valley Bank before he returned to Florida. Willis also had received mail from a separate

post office box in Great Falls. Willis denied having opened the Great Falls post office box.

Willis had received copies of the escrow agreement and payment coupon for Weggeland,

however, at the post office box in Great Falls.

¶10    Willis thereafter made occasional trips to Montana. Willis chose not to tell his wife

(Avelia) about his purchase of Weggeland or his account at Belt Valley Bank. Willis

apparently failed to disclose these facts in an effort to protect her from involvement in

Willis’s drug dealing.
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¶11    Willis claims that he had been unaware that the contract for deed required a

$50,388.75 payment toward Weggeland on August 30, 1989. Willis failed to make this

payment on time. Schmasow delivered a late payment in September 1989, to cover the

August 30, 1989, payment. Ferterrer, in conjunction with Dick, contributed $22,408.75 to

the August 30, 1989, late payment, and Willis apparently paid $27,980.00.

¶12    Fertterer and Dick characterize the $22,408.75 as a loan to Willis. Ferterrer and Dick

possess no promissory note or other documentation, however, to verify their claim. Willis

disputes that the contribution from Fertterer and Dick represented a loan. Willis instead

claims that Fertterer and Dick had laundered Willis’s drug sale profits through their accounts

and thus Willis had provided the sole source of the funds for the August, 30, 1989, late

payment.

¶13    Federal authorities arrested Willis in Florida in November 1989. The United States

charged Willis with conspiring to possess at least five kilograms of cocaine and possessing at

least five kilograms of cocaine with intent to distribute. Willis potentially faced life

sentences for each charge due to his previous drug offenses. Federal authorities seized, and

Willis ultimately forfeited, over $150,000.00 in Willis’s possession at the time of his arrest.

The federal district court sentenced Willis to two terms of life imprisonment in 1990

following his conviction.

¶14    Willis’s impending life sentences left him unable to pay for Weggeland as the contract

for deed contemplated. Willis and Fertterer made an arrangement to save Weggeland. The

parties disagree about the specifics of that arrangement.
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¶15    Willis claims that Fertterer agreed to make payments for Willis. Willis claims that

Weggeland still would belong to Willis upon his release. Fertterer conversely claims that

Willis relinquished Weggeland to Fertterer on condition that Fertterer agree to take over the

remaining payments. Both parties agree that Ferterrer would be responsible for completing

the payments to purchase Weggeland. The parties disagree about the effect that this plan

would have on the ownership of Weggeland.

¶16    Willis further requested that Ferterrer and Debra remove funds from his Belt Valley

Bank checking account in an apparent effort to prevent federal authorities from seizing those

funds. Ferterrer and Debra complied. They used previously-signed checks that Willis had

left with them to withdraw the entire remaining balance of $23,475.00 from Willis’s Belt

Valley Bank checking account. Ferterrer and Debra stored these funds in the pocket of one

of Willis’s jackets. Ferterrer claims that he delivered the jacket that contained all of these

funds to Avelia. Avelia denies that she had received the funds.

¶17    Fertterer contacted his loan officer at Farm Credit Services to resolve the Weggeland

matter. Ferterrer earlier had received an agreement from Willis to sell Weggeland to

Ferterrer (Willis-Fertterer Deed) for $240,000.00. This notarized document suggests that

Willis had agreed to sell Weggeland to Fertterer. Willis contests the validity of the deed.

¶18    First American Title prepared the Willis-Fertterer Deed. The Willis-Fertterer Deed

bears a December 28, 1989, notarized signature that appears to read “Terry Willis.” Rita

Crowell (Crowell), Florida Notary Public, and former employee at the Fort Pierce, Florida,



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Federal Public Defender’s Office, notarized the signature. Willis denies that he signed the

Willis-Fertterer Deed.

¶19     Willis’s expert witness testified that Willis’s signature had been forged on the Willis-

Ferterrer Deed. Willis was in pre-trial detention on December 28, 1989, the date that the

parties apparently executed the Willis-Fertterer Deed. At the time the federal district court

had assigned Willis a public defender to represent him in the federal criminal proceeding.

Willis ultimately retained private counsel.        Willis’s private counsel testified that he

remembered having worked earlier with Crowell at the Fort Pierce Federal Public Defender’s

Office, but it appears that nobody could locate Crowell to testify. It remains unclear how the

Willis-Fertterer Deed travelled from Montana to Florida, received Willis’s signature on

December 28, 1989, and returned to Montana to be recorded the next day on December 29,

1989.

¶20     Armed with the notarized Willis-Fertterer Deed, Fertterer applied for a loan with

Richard Sr. to purchase Weggeland.           Farm Credit Services approved the loan for

$152,935.00, secured by a mortgage. Fertterer paid the proceeds from this loan, in the

amount of $149,492.95, to First American Title Company. This amount paid in full the

balance on Willis’s contract for deed. Ferterrer therefore paid, including his contributions to

the late August 30, 1989, payment, $171,901.70 of the $240,700.32 purchase price for

Weggeland. Willis paid the remaining total and interest.

¶21     First American Title Company closed the transaction after having received payment in

full. The Cascade County Clerk and Recorder recorded the warranty deed from the original
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Weggeland owners to Willis on December 29, 1989, followed immediately by the warranty

deed from Willis to Fertterer.

¶22    Ferterrer and Richard paid off the loan from Farm Credit Services that had secured

Weggeland in 2001. Ferterrer has maintained and improved Weggeland since paying off the

loan. Ferterrer also has paid all required property taxes.

¶23    Willis cooperated with the federal government in exchange for a reduced sentence.

The federal district court granted a motion by the United States to modify Willis’s sentence

in 1998. This modification reduced Willis’s federal sentence to fourteen years. Willis

served part of this sentence on federal supervised release. Willis violated conditions of his

federal supervised release. The federal district court revoked Willis’s supervised release on

November 9, 2004, and returned Willis to federal prison.

¶24    The Federal Bureau of Prisons released Willis from all conditions on December 5,

2008. Willis soon thereafter filed an action in Cascade County that challenged Ferterrer’s

ownership of Weggeland. Willis further alleged that Ferterrer and Debra had converted

funds from Willis’s Belt Valley Bank account. The District Court conducted a bench trial in

November 2012. The District Court affirmed the validity of the Willis-Fertterer Deed. The

District Court also concluded that Fertterer had not converted any funds that belonged to

Willis. Willis appeals.

                                 STANDARD OF REVIEW

¶25    We determine whether a district court’s findings of fact are clearly erroneous and

whether its conclusions of law are correct. In re B.M., 2010 MT 114, ¶ 14, 356 Mont. 327,
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233 P.3d 338. A factual finding is clearly erroneous if it is not supported by substantial

evidence, if the trier of fact misapprehended the effect of the evidence, or if the record leaves

the reviewing court with the definite and firm conviction that a mistake has been made.

Varano v. Hicks, 2012 MT 195, ¶ 7, 366 Mont. 171, 285 P.3d 592. We view evidence in the

light most favorable to the prevailing party, and we leave the credibility of witnesses and the

weight assigned to their testimony for the determination of the trial court. Mowrer v. Eddie,

1999 MT 73, ¶ 36, 294 Mont. 35, 979 P.2d 156.

                                        DISCUSSION

¶26     Whether substantial evidence supports the District Court’s findings of fact?

¶27    Willis first challenges the District Court’s factual finding that the notarized signature

on the Willis-Ferterrer deed was valid. Willis relies upon the Mississippi Supreme Court’s

decision in Thompson v. Shell W. E & P Inc., 607 So. 2d 37 (Miss. 1992), for the

unremarkable proposition that the presumption of validity of authenticity “can only be

overthrown by a strong evidentiary showing.” Thompson, 607 So.2d at 41. The District

Court identified, however, the “sharp conflict” between the parties’ testimony on the

circumstances surrounding Willis’s notarized signature on the Willis-Ferterrer Deed.

¶28    Willis attacks the District Court’s determination that Willis personally had appeared

before Crowell, and that Crowell had notarized the deed in Florida on December 28, 1989.

Willis further challenges the feasibility of the Cascade County Clerk having recorded the

Willis-Ferterrer deed in Montana on the next day, December 29, 1989. Willis lastly argues



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that the District Court ignored the testimony of his handwriting expert that the signature on

the Willis-Ferterrer deed had been forged.

¶29    Willis contends that these facts rise to the level of a strong evidentiary showing

sufficient to overcome the presumptive validity of the Willis-Ferterrer Deed that Crowell had

notarized. He cites two other cases from Mississippi, Woodson v. Jones, 33 So.2d 316

(Miss. 1948) and Continental Oil Co. v. Walker, 117 So.2d 333 (Miss. 1960) to bolster his

position. The Mississippi Supreme Court invalidated a notarized document in each case.

¶30    The notary’s certification in Walker appears on the back of the deed. Walker, 117 So.

2d at 335. This suspicious factor, along with the fact that the grantor had been out of the

county on military duty on the date that he allegedly had appeared before the notary, led the

Court to uphold the trial court’s determination that the deed was invalid. Walker, 117 So.2d

at 335-36. Similarly, in Woodson, the spelling of the purported notarized signature failed to

match the spelling of the grantor’s name. Woodson, 33 So.2d at 316. This discrepancy,

along with the grantor’s son’s testimony that he had signed the deed rather than the grantor,

operated as compelling evidence to overcome the presumed validity of a notarized signature.

Woodson, 33 So.2d at 316.

¶31    The District Court sits in the best position to resolve conflicting factual testimony and

to evaluate expert witness testimony. Mowrer, ¶ 36. We will not disturb the District Court’s

determination without finding either that substantial evidence fails to support the factual

finding, that the District Court misapprehended the effect of the evidence, or that we are left

with the firm conviction that the District Court made a mistake. Varano, ¶ 7.
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¶32    The District Court analyzed the conflicting evidence presented at trial and considered

the credibility of the witnesses’s testimony. The District Court identified “unanswered

questions” about how the Willis-Ferterrer Deed moved to Florida and back to Great Falls,

but found that it was “apparently by overnight mail or personal delivery.” The District Court

focused on the totality of the circumstances to determine that “Willis [w]as the one most

likely to have involved [Crowell].” The District Court further highlighted that “[n]o one has

challenged Ms. Crowell’s signature” on the Willis-Ferterrer deed.

¶33    Willis fails to identify any strong evidence of forgery on appeal. Willis dismisses as

“somehow magic[],” the deed’s travel from Florida to Montana. Willis further accuses

Ferterrer of having conspired to forge the deed without any evidence to support the

argument. These factors fall short of the evidence of forgery in Woodson and Walker.

¶34    The District Court found Willis’s testimony less credible than Ferterrer’s. In

particular, the District Court pointed to Willis’s multiple criminal convictions and his own

testimony that he illegally had hidden assets to avoid forfeiture to the federal government as

evidence of Willis’s lack of veracity. Willis further conceded on cross-examination that he

had made a similar arrangement in July 1989 upon his arrest in which Ferterrer had taken

over payments for a tractor that Willis had been purchasing. This earlier arrangement

granted ownership of the tractor to Ferterrer when Ferterrer paid the balance in full. The

District Court concluded based on “all of the matters listed in the Findings of Fact” that

Willis had failed to present clear and convincing evidence of forgery needed to overcome the



                                             10
presumption of authenticity of a notarized document. Substantial evidence supports the

District Court’s finding of validity of the Willis-Ferterrer Deed. Varano, ¶ 7.

¶35    Willis next argues that the District Court should have quieted title in his name due to

the alleged forgery of his signature on the Willis-Ferterrer Deed. Willis argues that the

invalid deed could not transfer title as Willis had not ratified the invalidity. Willis failed to

establish, however, that his signature had been forged on the deed that transferred

Weggeland. A factfinder remains free to disregard an expert’s testimony. Stave v. Estate of

Rutledge, 2005 MT 332, ¶ 21, 330 Mont. 28, 127 P.3d 365. The District Court’s finding of

validity of the Willis-Fertterer deed conveyed Weggeland without requiring Willis to have

ratified any alleged forgery. Willis’s contention that he did not ratify the Willis-Ferterrer

Deed fails based on the fact that substantial evidence supports the District Court’s factual

finding of the validity of the deed. Varano, ¶ 7.

¶36 Whether the District Court properly determined that Willis failed to prove that
Fertterer had converted funds from Willis’s bank account?

¶37    Willis lastly argues that the District Court improperly found that Willis had failed to

prove conversion of his funds. Conversion involves a distinct act of dominion wrongfully

exerted over property in denial of, or inconsistent with, the owner’s right. Feller v. First

Interstate Bancsystem, Inc., 2013 MT 90, ¶ 26, 369 Mont. 444, 299 P.3d 338. Willis needed

to present facts at trial sufficient to show that Ferterrer wrongfully had exercised dominion

over Willis’s property inconsistent with Willis’s right. Feller, ¶ 26.




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¶38    Willis identifies some evidence in the record that does not support the District Court’s

findings of fact. Willis testified that Ferterrer had used Willis’s checks to withdraw all of the

funds from Willis’s Belt Valley Bank account. The parties presented conflicting testimony

about whether Willis had authorized that withdrawal. The District Court determined that

“Willis le[ft] signed checks with [Ferterrer] and [Debra] to fill out.”

¶39    The parties also presented conflicting testimony regarding what had happened to the

funds after the withdrawal. The District Court further determined that Ferterrer “delivered

the money from the four checks he and [Debra] had used to take funds from Willis’[s] Belt

Valley Bank account to Willis’[s] wife Avelia.”           The District Court resolved these

conflicting accounts when it found Ferterrer more credible. Mowrer, ¶ 36. Willis’s criminal

convictions and testimony about having hidden assets during his criminal prosecution likely

hampered his credibility. Ferterrer fails to identify any factual determination that lacks

support by substantial evidence. Varano, ¶ 7.

¶40    Affirmed.

                                                    /S/ BRIAN MORRIS


We concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




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