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                                                                No. 98-471



                              IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                               1998 MT 316




                                     ROSSLYN INGMAN DUNCAN, GARY INGMAN

                                                       and RODNEY INGMAN,



                                                      Plaintiffs and Respondent,



                                                                      v.



                                     R. and D. ALLEN, MR. and MRS. H. ANDERSON,

                                                                    et al.,



                                                                Defendants,



                                                                     and



                                                        MARK SAFRONOFF,


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                                                       Defendant and Appellant.




                                APPEAL FROM: District Court of the Fifth Judicial District,

                                                 In and for the County of Jefferson,

                                           Honorable Frank M. Davis, Judge Presiding.




                                                      COUNSEL OF RECORD:



                                                              For Appellant:



                              William G. Sternhagen, Sternhagen Law Firm, Helena, Montana

                                                             Havre, Montana



                                                             For Respondent:



                                  C. W. Leaphart, Jr., Leaphart Law Firm, Helena, Montana




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                                               Submitted on Briefs: December 3, 1998

                                                      Decided: December 23, 1998



                                                                     Filed:




                                       __________________________________________

                                                                     Clerk




                      Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1. Mark Safronoff appeals from the judgment of the Fifth Judicial District Court,
Jefferson County, quieting title to certain mining properties previously held by Sun
Mining, Inc., and allocating the ownership of those properties as between various
former shareholders of the corporation. We affirm.

¶2. The question before us is whether the District Court erred in determining the
total number of outstanding shares of Sun Mining, Inc., and the relative number of
shares owned by each of the plaintiffs.

¶3. This lawsuit was commenced as an action to quiet title to certain patented and
unpatented mining claims formerly held by Sun Mining, Inc. Sun Mining was
involuntarily dissolved by the State of Montana in 1979, and as of the time of this
lawsuit, there were no surviving directors of that corporation. Each of the plaintiffs
and defendants in this lawsuit were known to have held shares in Sun Mining, Inc., at
one time. However, several of the originally named defendants failed to make an
appearance in this action, and default judgments were accordingly entered against
those parties. By the time this matter came on for trial, the remaining defendants in
the action included Mrs. Albert Diehl, Mr. Don Allen, the Estate of George

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McGaffick, Mrs. Gerald Quitney, and Mr. Mark Safronoff.

¶4. On January 16, 1998, a bench trial was held before the Fifth Judicial District
Court, Jefferson County, to determine how much existing stock there was in Sun
Mining, Inc., and to determine how much of the total stock each owner held, in order
to calculate the percentage of the corporation's remaining mining assets belonging to
each of the residual stock owners. In its Findings of Fact and Conclusions of Law, the
District Court found that there was a total of 1,827,170 shares of Sun Mining, Inc.,
outstanding as of the time of trial. Of these, the District Court determined that
483,500 shares were held by each of the individual plaintiffs; 192,000 shares were
held by Mr. Safronoff; 171,000 shares were held by Mrs. Diehl; 1000 shares were
held by Mr. Allen; 6420 shares were held by the Estate of George McGaffick; and
6250 shares were held by Mrs. Quitney. Furthermore, the District Court held that
each of these parties was an owner in fee simple of a percentage of the mining assets
of Sun Mining, Inc., according to his or her relative equity ownership in Sun Mining,
Inc.

¶5. Did the District Court err in determining the total number of outstanding shares
of Sun Mining, Inc., and the number of shares owned by each of the plaintiffs?

¶6. This Court reviews the findings of a trial court to determine whether those
findings are clearly erroneous, giving due regard for the opportunity of the trial
court to weigh the credibility of the witnesses before it. Rule 52(a), M.R.Civ.P.
Factual findings by the trial court are clearly erroneous where they are not
supported by substantial evidence, the court has misapprehended the effect of the
evidence before it, or our review of the record convinces us that a mistake has been
committed. Interstate Prod. Credit Ass'n v. De Saye (1991), 250 Mont. 320, 323, 820
P.2d 1285, 1287.

¶7. Mr. Safronoff contends that the District Court was correct in finding that the
"only credible evidence" of stock holdings for Sun Mining, Inc., was a list of
shareholders and their holdings prepared in 1980 by the corporation's then secretary/
treasurer, and that the court correctly relied upon that document in calculating the
number of shares belonging to Mr. Safronoff. However, he contends, the court erred
in not relying on that same document in calculating the total number of outstanding
shares or the number of shares held by each of the individual plaintiffs. In particular,
Mr. Safronoff argues that the District Court's calculations should not have included


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the 483,500 shares represented on the face of each of the plaintiff's original stock
certificates, because those certificates pre-dated the 1980 shareholder list and were
therefore not reliable evidence of the actual holdings of the plaintiffs in Sun Mining,
Inc.

¶8. Our review of the record demonstrates Mr. Safronoff's contentions to be without
merit. In calculating the total number of outstanding shares in Sun Mining, Inc., the
District Court properly considered all of the evidence before it, which included the
1980 stockholder list prepared by the only surviving officer/director at the time, the
copies of the plaintiffs' stock certificates, and the testimony of several witnesses
regarding the accuracy of the 1980 stockholder list in cataloging the holdings of each
of the equity owners of Sun Mining, Inc. All of this evidence was also properly
considered in determining the number of shares to be allocated to each of the
plaintiffs.

¶9. The District Court relied exclusively on the stockholder list in determining the
number of shares belonging to Mr. Safronoff, because it found this list to be the
"only credible evidence" of any stock ownership in Mr. Safronoff. All of the interest
owned by Mr. Safronoff in Sun Mining, Inc., was purchased via quit claim deed
executed by the shares' former owner, Wendy Deschon. However, neither Ms.
Deschon nor Mr. Safronoff were able to produce any stock certificates evidencing
precisely what interest had been transferred from Ms. Deschon to Mr. Safronoff in
the course of that sale. Ms. Deschon testified that she at one time had been in
possession of several large share certificates totaling over 1.5 million shares in Sun
Mining, Inc., but that these certificates were destroyed in a house fire in 1994. The
District Court, however, did not find this testimony credible.

¶10. Therefore, for purposes of calculating Mr. Safronoff's shares, the District Court
relied upon the figures in the shareholder list. Contrary to Mr. Safronoff's assertions,
the District Court did not deem the 1980 shareholder list the "only credible
evidence" of all the shareholders' holdings, but rather, the "only credible evidence"
of Mr. Safronoff's equity interests. The District Court was not, however, bound by its
findings with regard to the fact of Mr. Safronoff's holdings in determining the total
number of outstanding shares nor the number of shares to be allocated to each
plaintiff.

¶11. The number of the plaintiffs' shares was documented on the face of the original


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share certificates which were introduced into evidence at trial. The number of shares
documented on the certificates did not coincide with the information contained in the
1980 shareholder list; however, the testimony of several witnesses indicated that the
1980 shareholder list was not wholly accurate in documenting the number of shares
held by each shareholder of Sun Mining, Inc. Where there is conflicting evidence
presented at the trial level, it is within the province of the trier of fact to weigh the
evidence based on the credibility of the witnesses and determine which shall prevail.
State v. Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111. The District Court was not
required to rely exclusively upon the data contained in the 1980 shareholder list
when the information contained therein conflicted with evidence which the District
Court deemed ultimately more reliable.

¶12. We hold that the District Court reasonably relied upon the information
contained in the share certificates in calculating the total number of outstanding
shares and the number of shares belonging to the plaintiffs. We further hold that the
District Court's findings of fact were not clearly erroneous, and we affirm the
judgment of the District Court quieting title to the mining properties of Sun Mining,
Inc., in the shareholders of the corporation according to the percentages set forth in
the judgment.



/S/ J. A. TURNAGE



We concur:



/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER

/S/ JAMES C. NELSON




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