                                                                                        September 5 2012
                                         DA 11-0530

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2012 MT 196N



ROCKY MOUNTAIN BANK-KALISPELL,

              Plaintiff and Appellee,

         v.

BART S. CULBERTSON, JOSEPH M. FLANAGAN,
DARRIS R. FLANAGAN, MICHAEL J. FLANAGAN
and PATRICK FLANAGAN,

              Defendants and Appellants.


APPEAL FROM:          District Court of the Nineteenth Judicial District,
                      In and For the County of Lincoln, Cause No. DV 08-32
                      Honorable James B. Wheelis, Presiding Judge


COUNSEL OF RECORD:

               For Appellants:

                      Bart S. Culbertson, (self-represented), Eureka, Montana
                      Joseph M. Flanagan, Darris R. Flanagan, (self-represented),
                      Eureka, Montana
                      Michael J. Flanagan, Patrick Flanagan, (self-represented),
                      Eureka, Montana

               For Appellee:

                      Kevin S. Jones, Joseph D. Houston; Christian, Samson & Jones, PLLC;
                      Missoula, Montana



                                                   Submitted on Briefs: July 11, 2012

                                                               Decided: September 5, 2012


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     This is an action brought by Rocky Mountain Bank-Kalispell (RMB) against Bart

Culbertson (Culbertson) and Joseph, Darris, Michael, and Patrick Flanagan (Flanagans)

to foreclose on RMB’s mortgage held on real property located in Lincoln County. In

February 2007, RMB agreed to loan $250,000 to Culbertson to develop and subdivide

real property owned by Flanagans. Culbertson purchased the property from Flanagans

and used $160,000 of the loan proceeds to pay the down payment on the real property to

Flanagans. Flanagans retained a security interest in the property to secure payment of the

balance of the $1,600,000 purchase price. However, RMB’s loan to Culbertson was

made contingent on Flanagans entering into a subordination agreement that would grant

RMB a first-position security interest in the property. Culbertson’s attorney drafted the

subordination agreement and the agreement was approved by Flanagans’ attorney.

Culbertson, Flanagans, and RMB executed the subordination agreement, which granted

priority to RMB and provided that its mortgage “be and remain superior to the mortgage

lien of Flanagans.” The agreement stated that the Culbertson and Flanagans “want the

Bank to provide additional funds and perhaps provide additional accommodations to

                                         2
Culbertson for use in payment of all phases of developments expenses.” The agreement

referenced “the Bank loan” and stated “[t]he Bank anticipates future advances.”

¶3    Thereafter, the real estate market declined and Culbertson failed to satisfy RMB’s

conditions for future advances. Culbertson failed to make payments in accordance with

the terms of the loan and RMB initiated foreclosure proceedings by filing a complaint on

January 29, 2008. Culbertson and Flanagans filed an answer on November 7, 2008. On

December 23, 2008, Culbertson and Flanagans filed a motion for leave to file an

amended answer, which included counterclaims, and a demand for jury trial.            On

December 29, 2008, the District Court granted leave to file an amended answer and

counterclaims, but denied the demand for jury trial. Culbertson and Flanagans filed the

amended answer and counterclaims.

¶4    RMB filed a motion for summary judgment on Culbertson’s and Flanagans’

counterclaims, affirmative defenses, and the priority issue. The District Court denied the

motion as to the affirmative defenses because it found that there were genuine issues of

material fact that precluded summary judgment. However, the District Court granted the

motion as to the counterclaims and the priority issue, concluding that the intent of the

subordination agreement was to give priority to RMB and that RMB’s mortgage was

recorded before Flanagans’ mortgage.

¶5    A trial was held on August 2 and 3, 2011, before a different presiding District

Court Judge who had assumed the bench. The District Court referenced the earlier

summary judgment order but also entered findings of fact regarding the terms of the

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subordination agreement and entered conclusions of law regarding the agreement’s

interpretation. The District Court held in favor of RMB and ordered foreclosure of its

mortgage. Culbertson and Flanagans filed a notice of appeal on September 8, 2011, each

filing briefs pro se after their counsel filed a motion to withdraw in the District Court.

However, although Culbertson and Flanagans filed briefs on appeal, neither party filed

the trial transcript or the original trial exhibits with the Clerk of the Supreme Court.1

¶6     Culbertson first challenges the denial of his demand for a jury trial by the District

Court, which held:

       By failing to demand a jury trial within 10 days after filing their original
       Answer, the Defendants waived their right to a jury trial. Inasmuch as the
       counterclaims arise out of the conduct, transaction, or occurrence set forth
       or attempted to be set forth in the original pleading, the jury waiver is not
       revoked by the amendment of the Defendant’s pleading.

¶7     Culbertson and Flanagans filed their answer on November 7, 2008. Their motion

for leave to file an amended answer and the demand for jury trial was filed on

December 23, 2008. The demand for jury trial was not premised on any new claim or

issue that Culbertson and Flanagans sought to add by way of the amended answer. The

Montana Rules of Civil Procedure provide that a demand for jury trial may be demanded

“not later than 10 days after the service of the last pleading directed to such issue.” M. R.

Civ. P. 38(b) (2007).       Under these circumstances, Culbertson and Flanagans were

required to file a demand for jury trial within 10 days of their original answer. A party
1
  Copies of several of the trial exhibits are located in the record as attachments to pleadings and
are attached to the appellate briefs. Regarding the trial transcript, Flanagans and Culbertson
made a number of inquiries to the court reporter, necessitating an order from the District Court to
clarify issues related to the transcript and their counsel’s motion to withdraw. Ultimately,
however, a transcript was not prepared.
                                               4
waives a jury trial unless its demand is properly served and filed. M. R. Civ. P. 38(d).

The District Court correctly interpreted and applied Rule 38 of the Montana Rules of

Civil Procedure in denying the demand. See Sebena v. American Automobile Assn., 280

Mont. 305, 308-09, 930 P.2d 51, 52-53 (1996).

¶8    Culbertson and Flanagans raise additional issues on appeal. However, these issues

include challenges to the District Court’s findings of fact and evidentiary concerns for

which a trial transcript is necessary for proper review, such as the circumstances

surrounding the parties’ entry into the subordination agreement, the conditions imposed

by RMB, RMB’s commitment to lend additional funds, the sufficiency of consideration,

the lack of good faith and fair dealing, and whether there were undisclosed conditions

that led to a mistake of fact.      For example, in one of Culbertson and Flanagans’

arguments, they offer as follows:

               RMB did not disclose to Culbertson [prior to entering the
      subordination agreement] that there were any other conditions that had to
      be met before it would grant the financial accommodations that Culbertson
      was requesting of it. Based on his understanding that the only condition
      that the Bank required was that Flanagans would subordinate their
      mortgage to RMB’s mortgages or liens, Culbertson purchased the property
      . . . . [Emphasis in original.]

                                         .   .   .

             The [district] court found that “although RMB and Culbertson
      discussed potential future loans from RMB to Culbertson for the
      development of the [Flanagan] subdivision, Culbertson did not satisfy the
      Bank’s terms and conditions with regard to such future loans and
      advances.”. . . The court erred in finding that these other terms and
      conditions could be imposed

                                         .   .   .
                                         5
              Culbertson’s apparent consent to RMB’s promissory note and
       mortgage was not real or free when it was obtained through mistake. . . .
       The mistake that Culbertson made was his belief that the only condition
       RMB imposed to the granting of the financial accommodation that he was
       requesting was that Flanagans’ subordinate their mortgage to RMB’s
       mortgage.

We cannot review the District Court’s findings regarding the parties’ discussions and

understandings, or the satisfaction of conditions, without a trial transcript, nor can we

review that court’s legal conclusions about the interpretation of the agreement without the

benefit of a factual record.

¶9     Prior to trial, the District Court entered a partial summary judgment order which

provided a very narrow ruling regarding the subordination agreement, holding, in totality,

that the agreement’s “intention to subordinate the Flanagans’ mortgage to RMB’s

mortgage cannot reasonably be denied.         If the Subordination Agreement has one

unmistakable purpose, it is that.” However, the District Court relegated the larger issues,

including the defendants’ affirmative defenses, until trial. After trial, the District Court

entered findings regarding the factual issues surrounding the transaction. The appeal

from the District Court’s subordination determination by Culbertson and Flanagans

include challenges to these findings and evidence extrinsic to the agreement itself. Their

arguments include the following assertions:

       –“RMB represented to Flanagans that it was going to lend money for all
       phases of development of their land as they and Culbertson were
       requesting.”




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      –“RMB did not disclose to Flanagans that there were any other conditions
      that had to be met before it would grant the financial accommodations that
      Flanagans were requesting of it.”

      –“[T]he court found the following conditions allowed RMB to evade
      lending money for all phases of Flanagans’ property: [list of conditions]
       . . . None of these 11 conditions were ever disclosed to the Flanagans at
      the time they signed the subordination agreement.”

      –“Here, the lender made an intentional misrepresentation that it would lend
      all money to develop Flanagans’ property, while failing to tell them that
      there were considerable vague and subjective conditions by which it could
      avoid lending that money, which operated to mislead the Flanagans.”

      –“RMB deceived Flanagans when it solicited the subordination of their
      $1,440,000 interest in their land. It induced Culbertson to place over
      $700,000 of improvements on the property before it told him it would not
      lend him the money to repay him for those improvements.”

Citing the language of the subordination agreement that RMB’s mortgage secured

“additional loans for development,” Flanagans also argue that “[t]he $250,000 loan was

not an additional loan. It was the initial loan.” (Emphasis in original.) They further

argue that this loan was “not a loan for development” and that use of these proceeds for

“purchase money, bank fees and preparation for the appraisal” was “not development.”

¶10   These are fact-intensive issues which, while related to the District Court’s partial

summary judgment ruling, are nonetheless much broader than that holding. Thus, even

though our review of summary judgment is de novo, we cannot undertake review of the

District Court’s narrow holding regarding the “intention” of the subordination agreement

without the benefit of the trial record which addressed the factual issues surrounding the

transaction, given the arguments made on appeal.


                                        7
¶11    The Montana Rules of Appellate Procedure state:

       The appellant and any cross-appellant have the duty to present the supreme
       court with a record sufficient to enable it to rule upon the issues raised.
       Failure to present the court with a sufficient record on appeal may result in
       dismissal of the appeal or affirmance of the district court on the basis the
       appellant has presented an insufficient record.

M. R. App. P. 8(2) (2011). When the trial transcripts are missing from the record, we

cannot review evidentiary issues and will affirm the District Court’s findings. In re

Marriage of Cameron, 2009 MT 302, ¶ 19, 352 Mont. 375, 217 P.3d 78. Here, the

substantive issues raised by Culbertson and Flanagans require review of the trial record.

Because neither Culbertson nor Flanagans filed the trial transcript or related trial exhibits,

we must decline to undertake review of those issues.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issues in this case are legal and are controlled by settled Montana law, here, the Montana

Rules of Civil Procedure, which the District Court correctly interpreted, and the Montana

Rules of Appellate Procedure.

¶13    Affirmed.

                                                                 /S/ JIM RICE


We concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ BRIAN MORRIS

                                          8
Justice Patricia O. Cotter concurs.

¶14    Unfortunately, I must concur in the Court’s conclusion that it is not possible to

resolve the substantive issues surrounding the intent underlying the Subordination

Agreement without the benefit of the trial transcript and related trial exhibits. I find this

unfortunate because based upon the arguments contained in the briefs of all parties, I was

inclined to reverse the decision of the trial court and conclude that because RMB did

obligate itself to loan Culbertson all the money required for the project as a condition for

the Subordination Agreement and failed to do so, the consideration for the Subordination

Agreement failed, and Flanagans’ purchase money mortgage should accordingly be given

priority over the RMB loan.

¶15    The Subordination Agreement was given to RMB by Flanagans in exchange for

the anticipation that the Bank would finance the entire development project. Paragraph 1

of the agreement recited the land development proposal.              Paragraph 2, entitled

“Additional Loans for Development,” provided in pertinent part that the Bank would

provide “additional funds . . . to Culbertson for use in payment of all phases of

developments expenses.” The Agreement further provided that “The Bank anticipates

future advances.” The succeeding Paragraph 3 provided that “As a condition to the

granting of the requested financial accommodations as above stated the Bank requires

that its mortgage or other lien on the property be and remain superior to the mortgage lien

of Flanagans.” On paper, therefore, it appears that the Subordination Agreement was

given in exchange for full financing of the project—full financing that never
                                          9
materialized. Whatever the reason for the collapse of the arrangement, the fact remains

that the consideration given for the subordination failed; therefore—and again on paper—

the Subordination Agreement should have been deemed null and void and Flanagans’

purchase money mortgage should therefore have enjoyed first priority.

¶16    However, as the arguments highlighted by the Court in ¶ 8 of the Opinion reflect,

the intent of the Bank with respect to the financing and the underlying conditions was a

key focus of the evidence offered at trial. The District Court clearly took account of the

testimony and supporting exhibits in reaching its decision. Without a transcript, we are

unable to evaluate the evidence so as to determine whether the District Court erred in its

findings of fact and resulting conclusions of law. Therefore, although my inclination on

the basis of the briefs of the parties was to urge reversal of the court’s judgment, I cannot

do so without the benefit of a full record. For this reason, I concur.



                                                  /S/ PATRICIA COTTER




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