                                                                                               04/18/2017


                                          DA 16-0493
                                                                                          Case Number: DA 16-0493

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 91N


WHITEFISH CREDIT UNION,

               Plaintiff and Appellant,

         v.

MARY KAY PRINDIVILLE, GEORGE W. PRINDIVILLE,
LLOYD SHINN, BARBARA SHINN, BARRY ROTHSCHILD,
and JOHN DOE(S) 1-10,

               Respondents and Appellees.

APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV 11-746(A)
                       Honorable Robert B. Allison, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Sean S. Frampton, Johnna J. Preble, Morrison & Frampton, PLLP,
                       Whitefish, Montana

                For Appellees:

                       George B. Best, Kira I. Evans, Best & Westover Law Office, Kalispell,
                       Montana (for Shinn/Rothschild)

                       Judah M. Gersh, Viscomi & Gersh, PLLP, Whitefish, Montana
                       (for Prindivilles)



                                                    Submitted on Briefs: March 22, 2017

                                                               Decided: April 18, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2    Whitefish Credit Union (WCU) appeals from the District Court’s Findings of Fact,

Conclusions of Law, and Order that determined the value of foreclosed property for

purposes of determining WCU’s entitlement to a deficiency judgment against the

above-named Defendants/Appellees.

¶3    The factual background of this matter, including the foreclosure of Appellees’

interest in the Patrick Creek property and WCU’s request for a deficiency judgment, is

fully set forth in our opinion in Whitefish Credit Union v. Prindiville, 2015 MT 328, 381

Mont. 443, 362 P.3d 53. In summary, Appellees defaulted on their notes to WCU, owing

approximately $1.9 million. WCU foreclosed on the secured property, which was sold at

a sheriff’s sale for $1.1 million, with WCU as the purchaser. WCU sought a deficiency

judgment, but the District Court, after conducting a hearing and considering the evidence,

determined the value of the Patrick Creek property to be approximately $2.4 million, and

that WCU was not entitled to a deficiency judgment against the Appellees.

¶4    WCU appealed. This Court determined that the District Court had not abused its

discretion by proceeding in equity to determine the value of the property for purposes of
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entering a deficiency judgment, but that “evidentiary errors clearly affected the outcome

of the proceeding to the prejudice of WCU and . . . a remand for further proceedings and

application of the proper standards is necessary.” Whitefish Credit Union, ¶ 33. On

remand, the District Court conducted a new hearing and received exhibits and testimony.

The District Court averaged the appraisals of the parties’ respective real estate appraisers

and determined the value of the property to be $1.65 million, entitling WCU to a deficiency

judgment of $190,673.89, with attorney fees and costs of $36,088.50, and statutory interest.

WCU appeals.

¶5     WCU argues that the appraisal submitted by Appellees’ appraiser lacked credibility

because it relied upon sales that were not comparable. It further argues that the District

Court erred by failing to recognize deficits in the appraisal’s analysis of “highest and best

use” of the property, and by reasoning that an earlier appraisal commissioned by WCU for

its purchase of the property at sheriff’s sale was subject to negative value depressing effects

of foreclosure sales, when those effects had already been considered by the appraiser.

WCU asks this Court to address and apparently set standards for “the credibility of

appraisals.” As relief, WCU requests that this Court reject Appellees’ appraisal, conclude

that they failed to meet their burden of proving the value of the property, and order that a

deficiency judgment in the amount of $740,673.89 be entered.

¶6     “This Court will affirm the factual findings of a district court sitting without a jury

unless those findings are clearly erroneous.” Jacobson v. Bayview Loan Servicing, LLC,

2016 MT 101, ¶ 19, 383 Mont. 257, 371 P.3d 397 (citation omitted). “A district court’s
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findings are clearly erroneous if they are not supported by substantial evidence, if the

district court has misapprehended the effect of the evidence, or if a review of the record

leaves this Court with the definite and firm conviction that a mistake has been committed.”

Jacobsen, ¶ 19 (citation omitted).       “Evidentiary issues, including rulings on the

admissibility of expert testimony, are reviewed for abuse of discretion.” Whitefish Credit

Union, ¶ 10 (citation omitted). “The credibility of witnesses and the weight to be given to

their testimony are determined by the trier of fact . . . .” State v. Trujillo, 2008 MT 101,

¶ 8, 342 Mont. 319, 180 P.3d 1153 (citation omitted).

¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the District Court’s findings of fact are not clearly erroneous and the court did not

abuse its discretion in its evidentiary rulings, including matters of credibility of the

appraisals.

¶8     Affirmed.


                                                 /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER




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