                     Nos.    95-351 and 95-469
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                1996


ACIES PROPERTIES, INC.,
a Canadian corporation,




APPEAL FROM:   District Court of the Nineteenth Judicial District,
               In and for the County of Lincoln,
               The Honorable C. B. McNeil, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Vaughn J. Gardner and Thelma M. Gardner,
               Pro Se, Eureka, Montana
          For Respondent:
               Todd A. Hammer, Warden, Christiansen,
               Johnson & Berg, Kalispell, Montana


                            Submitted on Briefs:   February 22, 1996
                                        Decided:   May 9, 1996
Filed:
Justice Terry N. Trieweiler         delivered the opinion of the Court.
     Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result    to    State   Reporter   Publishing   Company   and    West    Publishing

Company.

     The plaintiff, Acies Properties, commenced this action in the
District Court for the Nineteenth Judicial District in Lincoln

County by        filing a     complaint in      which it        sought    specific

performance      of a real estate agreement by Vaughn and Thelma

Gardner.       After a two-day nonjury trial, the District Court issued

an order in which it granted specific performance.                  The    Gardners
appeal from that order in cause number 95-351.                  After the court
issued its order, Acies Properties requested and the court granted

a stay pending appeal.        The Gardners also appeal from that order in
cause number 95-469. We have consolidated cause numbers 95-351 and

95-469 for appeal.        We affirm the District Court's order in 95-351

and conclude that the question raised in 95-469 is moot.
     We restate the issues as follows:

     1.        Did the District Court err when it denied the Gardners'

request for a jury trial?

     2.        Did the District Court abuse its discretion when it

denied the Gardners' motion to compel discovery?
        3.      Did the District Court abuse its discretion when it ruled
on evidentiary matters?

        4.      Did the District Court abuse its discretion when it

denied the Gardners' motion for verification?

        5.      Does substantial evidence support the District Court's

findings?

        6.      Did the District Court err when it concluded that neither

fraud nor a mistake of fact occurred?

        7.      Did the District Court abuse its discretion when it

granted a stay pending appeal?

                              FACTUAL   BACKGROUND

        Acies    Properties is a Canadian Corporation.      The   Gardners

reside in Lincoln County and own land consisting of a home and lake

frontage on Glen Lake.        Pursuant to the terms and provisions of a

1992 written agreement between the parties, the Gardners agreed to

sell,    and Acies Properties agreed to purchase that real property.

This property was described in the deed as:

        Tract 7A in Government Lot 3 in the SE1%iiW?4 of Section 27,
        Township 36 North, Range 26 West, M.P.M., Lincoln County,
        Montana.

However,     after a survey revealed the property's true size,         the

Gardners demanded more money than had been previously agreed upon.

When Acies Properties refused to pay more, the Gardners refused to

complete the sale.        Acies Properties then filed the complaint for

specific performance which gives rise to this appeal.
     During trial,    Greg Sells and Charles Cochrane, officers of

Acies Properties, testified that they first began looking for lake

shore frontage for use as a summer home in the spring of 1992, and

for that reason,     Acies Properties contacted Rick Vredenburg, a

licensed real estate agent with Tobacco Plains Realty in Eureka,

Montana.      Vredenburg testified at trial that he     met   with the

Gardners in the spring of 1992 and asked them whether they were

still interested in selling their property.         The Gardners had
previously listed the property with Tom Waters, another real estate

agent,     but that listing had expired.    Those   listing   materials

described the property as Glen Lake home on 4.7 acres with over 425
useable    lake front with a purchase price of $184,000. Vredenburg

testified that he walked the boundaries of the property with Mr.

Gardner who     pointed out property lines which were generally

consistent with the plat Vredenburg had obtained from the prior

listing.      The Gardners told Vredenburg they wished to sell the

tract in its entirety,     as demonstrated by the walk around the

boundaries.

     Testimony at     trial also revealed that officers of Acies
Properties traveled to Eureka in early July and met with Mr.

Gardner to inspect the property and home.    The officers walked the

boundaries with Vredenburg who showed them the boundaries Mr.

Gardner had previously shown.     The officers testified that their

interest was in the land's lake frontage, not the stated acreage of

the land.     When Acies Properties presented an offer dated July 3,


                                   4
1992,    to purchase the property for $195,000, it made the offer

subject     to a home    inspection   report   and the verification of

boundary lines and markers for the property.          Testimony    revealed

that Acies Properties included the survey requirement to verify the

eastern boundary of the property and determine the lake frontage

involved.

        Vredenburg testified that he followed up on Acies Properties'

request for a survey and a home inspection report by contacting Mr.

Gardner.     Gardner stated that he would make no guarantee regarding

the amount of the lake front on the property being sold.          He stated

that    "whatever   is   in the parcel is what we're selling." As

Vredenburg explained, the Gardners' position was as follows:

        Look we've showed you the property. You get what you get
        as is.   I don't want to have to pay for a survey. I
        don't want to have [to] argue over if it's short or long
        o r whatever.    This is the deal.      If they [Acies
        Properties] want a survey, they can go do whatever they
        want at their own expense.

Vredenburg testified that he then agreed to take the cost of a

survey out of his own commission.

        The Gardners made a counteroffer to Acies Properties on

July 27, 1992,      in which they agreed to sell the property for

$195,000 but which provided that Tobacco Plains Realty would pay

for the survey and the home inspection report.         The counteroffer,

which Acies Properties accepted on August 10, 1992, incorporated

other terms of the July 3, 1992, offer.        On September 8, 1992, the

Gardners     acknowledged    the   agreement   and   agreed   that    where

applicable,    the counteroffer superseded the original offer.

                                      5
        A survey subsequently revealed that the property consisted of
11.32 acres and that it had sufficient lake frontage to satisfy
Acies     Properties.        Acies Properties then agreed to release the
contingencies and provide for the Gardners' moving expenses.
        After receiving          the   survey,      the Gardners          advised Acies
Properties      by    written     letters    that while they were willing to
proceed with the sale, they wanted additional money for the acreage
in     excess   of 4.7 acres.             Acies Properties refused to offer
additional compensation and claimed that the property was sold as
a parcel.
        The parties'       agreement provided for the remedy of specific
performance.         This action was brought to enforce that provision.
        Following     trial, Acies Properties requested a stay pending
appeal to enjoin the Gardners from disposing of $15,000 it had paid
them for moving expenses or from otherwise transferring or
conveying the property subject to this action.                      The District Court
granted the stay of judgment pending appeal.                         The Gardners also
appeal that order.
                                          ISSUE 1
        Did the District Court err when it denied the Gardners'
request for a jury trial?
        We review a court's conclusions of law to determine if they
are correct.         Carbon County v. Union Reserve Coal Co.   ( 19 95 ) , 271   Mont. 459,

469,    898 P.2d 680, 686.



                                              6
     The District Court denied the Gardners' demand for a jury
trial because it was untimely.        Rule 38(b),    M.R.Civ.P., provides

that a demand for a jury trial must be served          "not later than 10

days after the service of the last pleading directed to such

issue."    Here,    the Gardners demanded a jury trial when they filed

their pretrial order and contend that the pretrial order was the

last pleading.       However, all pleadings are set forth in Rule 7(a),

M.R.Civ.P.,   and the pretrial order is not included in that list of

pleadings.     The Gardners should have made their request in their

answer to the complaint, but did not do so.          Because the Gardners

failed to timely serve this demand, they waived their claim for a

jury trial.        Rule 38(d), M.R.Civ.P.     Therefore, we conclude that

the court did not err when it denied the Gardners' request for a

jury trial.

                                   ISSUE 2

     Did the District Court abuse its discretion when it denied the

Gardners' motion to compel discovery?
     We review a district court's ruling relating to discovery to

determine whether the court abused its discretion.           McKamey   v. State

(1994),   268 Mont. 137, 145, 885 P.2d 515, 520.

     After execution of the pretrial order, the Gardners moved to

compel    discovery.     Rule 5 of the Montana Uniform District Court

Rules requires parties in their pretrial order to set forth the

additional discovery that they contemplate and the estimated time

for completion of that discovery.           The Gardners failed to do so,


                                      7
and the District Court denied their motion stating that discovery
had closed and that the pretrial                order failed to state that
additional    discovery    would   be   conducted.      We conclude that the
District Court did not abuse its discretion when it denied the
Gardners' motion to compel.
                                     ISSUE 3
        Did the District Court abuse its discretion when it ruled on
evidentiary    matters?
        The determination of whether evidence is                 relevant   and
admissible is left to the sound discretion of the trial court and
will not be overturned absent a demonstration that its discretion
has been abused.       InreMarriageofJohansen   (1993), 261 Mont. 451, 455,

863 P.2d 407, 410; Hislopv.Cady (19931, 261 Mont. 243, 247, 862 P.2d

388, 390.
        Rule 103,    M.R.Evid.,     requires a party to object          to the
admission of evidence in order to later claim error and provides
that:
              (a) Effect of erroneous ruling. Error may not be
        predicated upon a ruling which admits or excludes
        evidence unless a substantial right of the party is
        affected, and
              (1)  Objection. In case the ruling is one admitting
        evidence, a timelv obiection or motion to strike aonears
        of record, stating the specific ground of objection, if
        the specific ground was not apparent from the context
        . . . .
(Emphasis added.)         The Gardners specifically contend that the
District     Court   erred    when it        admitted   the   title   insurance
commitment.     However, the Gardners failed to object during trial to

                                         8
the admission of the title insurance commitment and therefore have

waived any objection to its admission.

        The Gardners also claim that Vredenburg said untrue things

about their former real estate agent, Tom Waters, which they could

not counter because they had neither the time nor the opportunity
to call him to testify.              However,   a review of the record reveals

that the Gardners neither objected to Vredenburg's testimony nor

brought any problems with his testimony to the court's attention.
Therefore,     the Gardners also waived objections to Vredenburg's

testimony.

        Next, the Gardners contend that the court sustained objections
without merit, did not allow them to ask questions and "told the

witness what to answer."              In support of the allegation that the

court    "told the witness what to answer,"                 the Gardners cite to

dialogue during which Vredenburg stated that he was lost or had

lost track of the question.               The court replied, "Say you don't

know."      Vredenburg then stated "I don't understand the question,"

and   the    question   was    restated.        Neither this exchange nor the

remainder of the record supports the Gardners' allegations.

        Finally,   the Gardners claim that            they were denied their

opportunity to question Vredenburg about Waters.                However, a review

of the record reveals that the court denied questions put to

Vredenburg      because       they    were   beyond   the     scope of    redirect

examination.       We conclude that the court did not                    abuse   its
discretion when it ruled on the evidentiary issues complained of by
the Gardners.

                                    ISSUE 4

          Did the District Court abuse its discretion when it denied the

Gardners' motion for verification?

          We review discretionary trial court rulings to determine

whether the court abused its discretion.                 May v. First Nat? Pawn Brokers, Ltd.

(1995),      270 Mont. 132, 134, 890 P.2d 386, 388.

          The day before trial,      the Gardners filed a "motion for

verification" with the court in which they asked the court to

verify that they had received the same proposed findings and
conclusions from Acies Properties that the judge had received. We

are cited to no authority for such a requirement.                    Furthermore, the

Gardners do not show that they were prejudiced by the court's

denial of their request.        We conclude that the District Court did

not abuse its discretion when it denied the Gardners' motion for

verification.

                                    ISSUE 5

          Does   substantial   evidence        support      the     District       Court's

findings?

          The standard of review for a district court's findings of fact

is whether they are clearly erroneous.                    Rule 52(a),       M.R.Civ.P.;

Brownv.    Tintinger (1990), 245 Mont. 373, 377, 801 P.2d 607, 609.

          The Gardners contend that several of the court's findings are

clearly      erroneous.   These findings pertain generally to the issue


                                          10
of whether the property was intended to be sold as a parcel or by
the acre.    Therefore, we first examine whether substantial evidence
supports the court's finding that the property was sold as a
parcel.
        Both testimony of Acies Properties' witnesses and exhibits
from the trial support a finding that the number of acres being
sold was irrelevant to the Gardners and that the property was sold
as a parcel and not by the acre.          For example, at the trial Greg
Sells and Charles Cochrane,      officers     of   Acies   Properties,   both
testified that the property was sold as a parcel and not by the
acre.     Sells stated that Acies Properties negotiated with the
Gardners for the purchase of the land as an entire parcel or in
gross and that neither party indicated in their dealings or in the
written instruments that the property would be sold or purchased on
a per-acre basis.    Furthermore, nothing in Acies Properties' offer
stated that it was agreeing to purchase the property other than as
a parcel.     Finally, Vredenburg,    the real estate agent, testified
that he walked the property with Mr. Gardner and that Gardner
represented to him that the property would be sold in its entirety
absent some personal items.
        Both Sells and Cochrane also testified that it was Acies
Properties who wanted a survey to verify the eastern boundary of
the property to determine the lake frontage involved.          The Gardners
did not care about the survey.       Specifically,    Vredenburg   testified
that when he contacted Mr. Gardner about the survey, Gardner stated


                                     11
that he would not be bound by a particular number of frontage feet
and that he would make no guarantee as to the amount of the lake

front or other characteristics of the property being sold.

Vredenburg also testified that Mr. Gardner stated that "whatever is

in the parcel is what we're selling." As Vredenburg explained, the
Gardners' position was as follows:

     Look we've showed you the property. You get what you get
     as is.   I don't want to have to pay for a survey. I
     don't want to have [to] argue over if it's short or long
     o r whatever.    This is the deal.      If they [Acies
     Properties] want a survey, they can go do whatever they
     want at their own expense.

Vredenburg testified that he then agreed to take the cost of a

survey out of his own commission.
     Based    on     our   review of      the   record, we      conclude     that
substantial    evidence      supports    the court's      findings that       the

property was sold as a parcel rather than by the acre and that

those findings were not clearly erroneous.

     Next, we address the Gardners' allegation that the witnesses

for Acies Properties lacked credibility.                  In support of this

allegation,    the     Gardners    identify     alleged    conflicts in       the

testimony and offer new evidence.
     Although conflicts may exist in the evidence presented, it is

the duty of the trial judge to resolve those conflicts.               Due regard

shall be given to the trial court's ability to judge credibility of

witnesses, and this Court will not substitute its judgment for the

trier of fact.       Eissinger v. Mullin Trucking, Inc. (1993) , 263 Mont. 38, 42,



                                        12
865 P.2d 300, 302; Williamsv.     DeVinney    (1993), 259 Mont. 354, 359, 856

P.2d 546, 549.
      Furthermore, we will not consider new evidence in the form of
pay   stubs, a letter prepared after trial, and real estate documents
from 1988 which the Gardners contend prove that the court erred.
The Gardners did not submit this evidence to the lower court, but
instead attach the exhibits to their appeal brief.                     This Court is
not a proper forum for the presentation of new evidence.                     We review
only that evidence which has been presented in the district court.
      The Gardners also present several issues for the first                     time   on
appeal.     They contend that they were denied the right to review the
real estate file of Tobacco Plains Realty, that the contingencies
were not timely released, and that Acies Properties' certificate of
authority      was      "fraudulently         submitted     by     a     non-existing
corporation."        It is well-settled that we will not consider issues
raised for the first time on appeal.              Fandrich v. Capital Ford Lincoln Mercury

(1995),     272 Mont.     425,   431,    901 P.2d 112,         115-16;     Hislop v. Cady

(1993),   261 Mont. 243, 250, 862 P.2d 388, 392; Weavers.                    LawFirmof

Graybill (lPPO), 246 Mont. 175, 180, 803 P.2d 1089, 1092-93. We will

therefore not consider these issues.
      After a review of the record, we conclude that substantial
evidence exists to support the court's findings that the property
was sold as a parcel and that those findings were not clearly
erroneous.


                                             13
                                    ISSUE 6
       Did the District Court err when it concluded that neither
fraud nor a mistake of fact occurred?
       Conclusions of law are reviewed to determine whether the
district court's interpretation and application of the law is
correct. Jim’sExcavatingServ.,Inc.v.HKMAssocs. (1994), 265 Mont. 494, 501,

878 P.2d 248, 252.
       The Gardners allege that the court erred when it concluded
that Acies Properties did not engage in any fraud and that no
mistake of fact occurred.          In making this argument, the Gardners
again contend that they believed they were selling 4.7 acres but
that Acies Properties knew that the property consisted of more
acreage.
       However,   Mr.   Gardner testified that he had suspicions by
August 10, 1992, that the tract consisted of more acreage than he
thought     and   that he    Was     anxious to      receive    the    survey.
Nonetheless, he         signed an     acknowledgment of        the    sale   on
September   8, 1992, without conditioning his acceptance on approval
of the survey.      This evidence suggests that Mr. Gardner neither
believed that he was selling 4.7 acres nor relied on any alleged
representation by Acies Properties.           Fraud does not occur when the
alleged misrepresentation is not relied upon.         Van Hookv. Baum (1990) ,

245 Mont. 407, 410, 800 P.2d 151, 153; Lowev.Root (19751, 166 Mont.

150,   155, 531 P.2d 674, 677.



                                       14
         We conclude that the District Court did not err when it held

that no fraud or mistake of fact occurred.         We therefore affirm the
order and judgment of the District Court in cause number 95-351.

                                    ISSUE 7

         Did the District Court abuse its discretion when it granted a
stay pending appeal?

         The issue in cause number 95-469 is whether the District Court

abused its discretion when it granted a stay pending appeal.               Our
decision in cause number 95-351 renders this issue moot because it

"has ceased to exist and no longer presents an actual controversy."

State   ex rel. A4iller v. Murray (19791, 183 Mont. 499, 503, 600 P.2d 1174,

1176.      This Court will not pass upon a moot question.      State Y. Thompson

(1978),     176 Mont. 150, 153, 576 P.Zd 1105, 1107

         We therefore decline to address the issue raised in cause

number 95-469.



                                                 us ice
                                        f
We concur:
