                                   NO.     95-214
              IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995


FIRS HOLDING CO., INC., a Montana
Corporation; and TERRY L. MCKAY,
              Plaintiffs    and Appellants,
         v.
                                                              /qjG 2 2 1995
MICHAEL LEMLEY; RX ENTERPRISES, INC.,
a Montana Corporation,                                        *$ p $i, ,/Aj
                                                              (~...&.>,..48bLE
                                                                           l: t
                                                         Ogli.RM,0~ ~~~p!i&vi; GauH~
              Defendant    and Respondent.                    gl#Tt? OP WNTnNP




APPEAL FROM:          District  Court of the Thirteenth Judicial District,
                      In and for the County of Yellowstone,
                      The Honorable Diane G. Bars, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                      James R. Graves, Ingrid Gustafson;   Oliver,                 Graves,
                      Toennis & Gustafson,   Billings, Montana

              For Respondent:
                      Mark D. Parker;     Parker     Law Firm,      Billings,      Montana



                                         Submitted     on Briefs:         July    27,    1995

                                                         Decided:         August        22, 1995
Filed:
Justice         W. William           Leaphart            delivered          the Opinion             of the Court


           In this        appeal,          FIRS Holding              Co.,     Inc.,         questions              whether      a
District           Court        Judge who did                not     preside          over      the        trial       in    the
first       instance         may amend the Findings                         of Fact         without           the benefit
of a transcript                 of the proceedings.                       We reverse.
                                                      BACKGROUND
          FIRS Holding              and Terry            McKay filed           this      suit       against           Michael
Lemley          alleging,            inter         alia,       bad         faith       with         regard            to     the
capitalization               of FIRS Holding,                 an entity            which had been formed by
McKay and Lemley.                      The suit            was tried               before       Judge William                  J.
Speare,         sitting         without        a jury.             Judge Speare issued                      his     Findings
of      Fact      and      Conclusions              of     Law on December                    5,        1994 with            the
Judgment being               filed         on December 15, 1994.                       On December 21, 1994,
Lemley         filed       a Motion          for      a New Trial             and to Amend Findings                          and
Relief         from Judgment.                On January            1, 1995, Judge Speare retired                             and
Judge Diane              G. Bars           succeeded         him as District                    Judge,            Thirteenth
Judicial         District,           and assumed jurisdiction                          over        this       matter.          On
January         3, 1995,         FIRS Holding              filed         a response           to Lemley's              motion
to Amend the Findings.                        On February                1, 1995, Judge Bars entered                           an
order       amending         Judge Speare's                  December 15, 1994 Judgment.                                   As of
the      date      of     Judge Bars's              order,         the    record        of the            trial      had not
been        transcribed.                     FIRS        Holding          then        filed         a       Rule        59 (g) ,
M.R.Civ.P.,             motion       for     relief        from the Amended Judgment based upon
Judge Barz's              failure          to review          a transcript              of the May 10,                     1994,
trial       over        which    Judge Speare had presided.                                 Lemley          responded          to

                                                               2
FIRS Holding's                 motion.           The District                Court,       however,       did not rule
on the         motion      within             45 days and,              thus,         pursuant      to Rule        59(g),
M.R.Civ.P.,             the     motion          was deemed denied.                        FIRS Holding          appeals
from that            denial.


                                                  ISSUE PRESENTED
          May a District                      Court      Judge        who did           not      preside       over      the
original        bench trial               issue        amended findings                 of fact      without       having
the benefit            of a transcript                   of the original                 proceeding?
                                                        DISCUSSION
          When Judge             Barz          assumed          the     office          of    District         Judge       on
January        2, 1995,          Lemley's             motion         to amend Judge Speare's                   Findings
of      Fact    was pending                   before      the        court.           FIRS Holding          and McKay
responded            to the motion              on January             3, 1995 and failed                to point        out
that,      since       Judge Bars had not presided                              over the original              trial,          a
transcript            of the proceedings                   would be necessary                     in order      for      her
to rule        on the pending                   motion.          Had FIRS Holding                 brought      Lemley's
failure         to     order       a transcript                 to     the      court's        attention        at      that
early      stage,       the necessity                  of this        appeal would have been obviated.
Nonetheless,              the          fact      remains             that       the     record       had     not        been
transcribed            and the court                  proceeded             to rule      on the motion          without
the benefit            of a transcript                  of the testimony.                    We hold that        this      is
reversible            error.       A district             court        judge who has not presided                       over
the original            bench trial              and who has not read a transcript                             of those
proceedings            does not have the necessary                              basis        to act as an advised
and intelligent                 fact      finder,         either        in the first             instance      or in an

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amendatory            fashion.                  Unless          the       parties       have stipulated                    to    the
relevant           and controlling                         facts,         a judge        who is         asked        to     amend
findings          of fact         entered             by another           judge,       cannot       act on the motion
to amend without                  having           first       reviewed         the relevant            portions           of the
trial         transcript.
          In     reviewing               district              court        findings          of     fact,      this        Court
determines           whether              the        finding        are      clearly      erroneous.            Interstate
Production           Credit         Ass'n            v. DeSaye (1991),                  250 Mont.            320,    322,        820
P.2d 1285,           1281.           In determining                    whether         the findings            are clearly
erroneous,           we first                 look     to see if             the findings             are     supported           by
substantial             evidence.               We then determine                     whether       the district            court
misapprehended               the evidence.                      In the absence of a transcript                             of the
proceedings,                there         is       no evidence              to apprehend              or misapprehend.
Without          a record,               it     is     impossible             to      judge        whether      or not           the
finding(s)           in question                   are supported               by substantial                evidence.
         Since        Lemley             is     the        party       who sought             the    amendment to                the
Findings          of Fact,          it        is incumbent             upon Lemley to order                   a transcript
of      the      proceedings                  so      that      the        District        Court        can     adequately
consider          the    merits               of his motion.
         Reversed            and remanded                    for      proceedings             consistent            with        this
opinion.




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