                                   NO.      95-021
               IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                         1995


SUSAN SCHNEELQCH,
              Plaintiff    and Appellant,
         v.
WILLIAM R. CORNMANand JOAN R. CORNMAN,                            JirN 19 1995
and all other persons unknown, claiming,
or who might claim any right,        title,     estate
or interest      in or lien or encumbrance
upon the real property      described      in the
Complaint adverse to the Plaintiff's
title   thereto,    where such claim or
possible    claim be present or contingent,
              Defendants    and Respondents.



APPEAL FROM:         District  Court of the Twenty-First  Judicial
                     District,  In and for the County of Ravalli,
                     The Honorable Jeffrey   H. Langton, Judge presiding.


COUNSEL OF RECORD:
              For Appellant:
                     Michael Sol, Sol & Wolfe,
                     Missoula, Montana
              For Respondent:
                     Timothy D. Geiszler,       Geiszler    & Newcomer,
                     Missoula, Montana


                                     Submitted       on Briefs:      April   20, 1995
                                                       Decided:      June 19, 1995
Filed:



                                     I'Clerk
Justice             Terry       N.        Trieweiler                    delivered                the       opinion                  of    the        Court.
           The         plaintiff,                 Susan              Schneeloch,                      filed            a     complaint                     in    the

District               Court         for         the      Twenty-First                         Judicial                District                 in     Ravalli

County          to quiet             title         to certain                      real        estate            and to recover                        damages

from       the       defendants,                  William                R. and Joan                   R. Cornman.                        The Cornmans

filed           a      counterclaim                      in         which              they       sought               title              to         the        same

property.

           Following                a nonjury                  trial,              the        District                Court          found           that        the

Cornmans              were      the          owners            in       fee        simple          and entitled                          to possession

of      the         real       property                 described                   in        Schneeloch's                      complaint.                       The

District               Court              also          awarded                costs             and          attorney                   fees           to       the

Cornmans,               and entered                    judgment               in       their          favor.               Schneeloch                  appeals

from       the       District              Court's              findings,                 conclusions,                       and judgment.                        We

affirm           the       judgment               of     the         District                  Court          in      part           and        reverse           in

part.

           The        following                issues            are         dispositive                   on appeal:

           1.           Were         the          District                    Court's              findings                    of        fact          clearly

erroneous?

           2.           Did     the          District               Court           err        when it             awarded               attorney               fees

to      the      Cornmans?
                                                          FACTUAL BACKGROUND

           On August                28,       1992,           Susan Schneeloch                           filed          a complaint                    against

William             R. and Joan R. Cornman.                                        Schneeloch                 requested                  that         title       be

quieted             to a five              acre         tract           of     land       located                in     Ravalli                County           next

to      her      home,         and sought                     damages              from         the      Cornmans                   as well.



                                                                                   2
        On December 8, 1992, the Cornmans filed                                   an amended answer and
counterclaim.                They        alleged           that       they,      not      Schneeloch,           were
entitled         to judgment            quieting          title      to the property.
        During         a nonjury        trial,       Schneeloch          testified        that    she met Joan
Cornman in 1987 while                    looking          at a parcel           of five     acres     that      Joan
owned; she stated                that     she contacted               the Cornmans again             in 1990 in
an effort          to purchase            the      five       acre     parcel     of property          and that
they      agreed        to accept         $8000 in cash for                   the parcel;        according         to
her,      the    Cornmans prepared                  a warranty          deed and a realty               transfer
certificate,             which      they         executed,           along     with     a receipt        for     the
$8000,       and they       gave all             three     documents          to her.
        She also          testified          that        because       her husband became angry                    at
her    for      spending         this     money without                consulting         him,    she hid        the
real   estate         documents          in some magazines.                   However,     due to perceived
threats         from the Internal                Revenue Service,               Schneeloch        then decided
to have title             to the property                 transferred           to a third       person.         She
asked the Cornmans to prepare                             a second deed transferring                    title      to
James Carpenter.              According             to Schneeloch,              they agreed to do so and
executed         a deed for           that       purpose.
          Schneeloch        put this         deed away as well.                  However,        she continued
to explain         that     after        returning            from vacation,            she found       that     her
husband         and     son had cleaned                   the      house       and moved the           stack       of
magazines          in     which         she had placed                the      envelope      containing          the
original         deeds.       Her husband had even burned                             certain       items.       She
contacted         the Cornmans again                     in early       July     1990 and told          them she
believed         the     deed had been lost                       or destroyed.           The Cornmans had

                                                              3
other      buyers     for    the property,                   and Schneeloch               attempted        to contact
these      new buyers.             Later,       in September                    1990,     Schneeloch        found       and
recorded          the Carpenter          deed.             She later             found     the original           deed.
         Schneeloch         testified               that      it     was around               mid-September          IYYO
when she found both documents.                               Schneeloch           was charged with               forgery
of the signatures             on these deeds;                   however,           these charges           were later
dropped.
         The Cornmans'             testimony           contradicted               the previous            allegations
in every material             respect.              Joan Cornman testified                        that    she did not
sign     an original         warranty           deed from the Cornmans to Schneeloch                                      on
April       30,     1990;      that           she     did          not     prepare         a     realty       transfer
certificate;          and that         she did not receive                       any cash from Schneeloch.
She also          denied     executing              the      second warranty                  deed by which           the
property       was allegedly             conveyed             to James Carpenter.
         Detective         James Bailey              of the Ravalli                County Sheriff's              Office
stated      that     he investigated                  this         deed dispute           in 1990.          Be stated
that     he received         many inconsistent                      statements            from Schneeloch,            and
that     she did not         cooperate              with      him during            the investigation.
         William       Cornman          testified               that       he      was        familiar      with      the
April      30 and May 15 warranty                     deeds and that                 he did not sign             either
deed.      William,         like     Joan,          testified            that     he did not receive               $8000
from       Schneeloch.                Schneeloch's                   husband            and      son,      and     James
Carpenter,          did not        testify.
                                                       ISSUE 1
         Were the District               Court's           findings             of fact       clearly      erroneous?



                                                              4
          We will               not         overturn              the      findings                     of      a trial             court        sitting

without          a       jury             unless           the         trial              court's               findings               are       clearly

erroneous.                     Interstate Production Credit Ass’n v. De&ye                                     (1991) , 250 Mont.                       320,

322,      820 P.2d               1285,             1287         (citing             Rule          52(a),           M.R.Civ.P.).

          Schneeloch                       argues          that           the         District                     Court        made            findings

unsupported                     by          the        evidence                 and             that            her          allegations                   are
corroborated                     by          the          circumstances,                            but            that         the          Cornmans'
allegations                     are         not.               She        contends                  that            the        District              Court
disregarded                the evidence                    at trial,                 including                 uncontroverted                    opinion

evidence,                and          impermissibly                     based             its           decision               on     her       lack        of

credibility.                     Schneeloch                also         asserts             that             properly          notarized             deeds

are     presumed                 to        be      authentic               and         cannot                 be    controverted                   absent

clear      and convincing                           evidence              to        the     contrary.

          The       Cornmans                 respond             that          the        District                 Court's            findings             are

supported            by substantial                            evidence,              that          the        District             Court        was not

bound      by       the         testimony                 of     any       single               witness,                 and    that         there         was

clear         and        convincing                    evidence                to     overcome                     any       presumption                that

attached            to         the        notarized              deeds.

          We have                held           that       substantial                      evidence                  "'is          such        relevant

evidence            as a reasonable                            mind       might            accept              as adequate                 to    support

a conclusion.'"                            Accounts Management Corp. Y. Lyman Ranch ( 19 8 7 ) , 2 3 0 Mont .

35,     41,      748 P.2d                   919,       923        (quoting                Bushnellv.Cooke                    (19861,         221 Mont.

296,      300,       718 P.2d                   665,       668).

          We     have                also          held         that           even          if          conflicting                   evidence             is

presented,                it         is     a trial             court's              duty          to        resolve           such        conflicts;


                                                                                5
due regard              is to be given              to the trial             court's        ability            to judge the
credibility              of witnesses;               and it         is not our function                   to substitute
our judgment               for       that       of the trial             court.        Williams v. De Vinney ( 19 9 3 ) ,

259 Mont.           354,         359,        856 P.2d 546,               549 (citing            De&ye,         820 P.2d at

1287-88).            The District                Court found that                 Schneeloch's            testimony            was
not     credible,               was misleading,                   and that        she tended             to be evasive.
By contrast,              the District               Court         found that        the Cornmans'                testimony
was corroborated,                     unequivocal,             and unqualified.                   The District            Court
especially              found Joan Cornman's testimony                             that     she would never sign
a blank        warranty              deed to be highly                   credib1e.l
         The Cornmans testified                            that     they had never              received          any money
from Schneeloch                  and that          they      had not signed               the original                warranty
deeds in question.                      We have previously                   stated        that     it        is within        the
province           of     the        district          court        in    a nonjury             case      to      judge        the
credibility               of     the        witnesses          and to        determine            the     weight          to     be
given         to        their          testimony,             especially             when         the         evidence           is

contradictory.                   Neilsv.Deist        (1979),           180 Mont.       542, 547, 591 P.2d 652,

655 (citing              Olsonv. Carter (1977),                   175 Mont.         105,     107,        572 P.2d 1238,

1239).             See&o         § 26-l-301,               MCA.          We will          not      second         guess        the

determination                   of     the      district           court.          A review              of     the     record
reveals        substantial                  evidence       on which the District                    Court        could base
its     findings           of        fact       and we conclude              that      they        were not            clearly
erroneous.

         1
                   Schneeloch   contended                          that  the deed to Carpenter                                 was
executed           without  the transferee's                         name and that she later filled                             it
out.
                                                                   6
         The     judgment          of     the        District            Court      is       affirmed             in    part,
reversed         in    part,     and remanded              for      further         proceedings             consistent

with     this       opinion.

         Pursuant         to    Section         I,    Paragraph           3(c),      Montana          Supreme           Court

1988     Internal        Operating         Rules,          this     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     Montana        Law Week,         State        Reporter        and West            Publishing          Company.




We concur:




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