                                          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


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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


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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.




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¶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).



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¶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




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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




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