                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 27 1997
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    STATE FARM MUTUAL
    AUTOMOBILE INSURANCE
    COMPANY,

             Plaintiff-Counter-                        No. 96-3154
             Defendant-Appellee,                 (D.C. No. 94-1510-KMH)
                                                        (D. Kan.)
    v.

    CRISOFORO VICENTE; ENRIQUE
    VICENTE,

             Defendants-Counter-
             Claimants-Appellants.




                           ORDER AND JUDGMENT *



Before BRORBY and KELLY, Circuit Judges, and CAUTHRON, ** District Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
       Honorable Robin J. Cauthron, District Judge, United States District Court
for the Western District of Oklahoma, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      State Farm Mutual Automobile Insurance Company (State Farm) brought a

diversity action against Crisoforo Vicente and Enrique Vicente (Vicentes) for

declaratory judgment and rescission of the nonliability provisions of an insurance

policy it issued to Crisoforo Vicente. The parties agreed to have a federal

magistrate hear the case pursuant to 28 U.S.C. § 636(c)(1). After a bench trial,

the magistrate judge entered judgment in favor of State Farm, and the Vicentes

appeal. We have jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291, and we

affirm.

      The magistrate judge found that State Farm proved, by clear and convincing

evidence, that Crisoforo Vicente knowingly and intentionally made false

representations on his insurance application for the purpose of inducing State

Farm to provide insurance, and that State Farm had reasonably relied on the

misrepresentations. See American States Ins. Co. v. Ehrlich, 701 P.2d 676,

678-79 (Kan. 1985) (holding that an insurance company has the right to rescind a

policy for fraud and misrepresentation where the applicant made an untrue

statement of fact, known to be untrue by the party making it, made with the intent


                                         -2-
to deceive or recklessly made with disregard for the truth, and where the

insurance company justifiably relied on the statement and acted to its injury and

damage). On appeal, the Vicentes assert these factual findings are not supported

by clear and convincing evidence.

      We review the magistrate judge’s factual findings for clear error, giving

due regard to the opportunity of the trial court to judge the credibility of the

witnesses. See Salve Regina College v. Russell, 499 U.S. 225, 233 (1991) (citing

Fed. R. App. P. 52(a)); see also Grimsley v. MacKay, 93 F.3d 676, 679 (10th Cir.

1996) (applying same standard to judgments rendered by a magistrate judge). “A

finding of fact is not clearly erroneous unless it is without factual support in the

record, or if the appellate court, after reviewing all the evidence, is left with the

definite and firm conviction that a mistake has been made.” Zimmerman v. Sloss

Equip., Inc., 72 F.3d 822, 825 (10th Cir. 1995) (quotations omitted). “Where there

are two permissible views of the evidence, the factfinder’s choice between them

cannot be clearly erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564,

574 (1985).

      We have reviewed the record and the briefs, and are satisfied that the

record contains sufficient evidence to support the magistrate judge’s factual

findings. Defendants’ arguments regarding the credibility of witnesses would

require us to reweigh the evidence and substitute our view for that of the


                                           -3-
magistrate judge, which we may not do. See id. at 573-75. The judgment of the

United States District Court for the District of Kansas is AFFIRMED for

substantially the reasons stated by the magistrate judge in the Memorandum and

Order dated March 19, 1996, and the judgment dated March 22, 1996.



                                                  Entered for the Court



                                                  Robin J. Cauthron
                                                  District Judge




                                       -4-
