No. 80-415
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
LAURA MAY BRUNTON KARTES,
Plaintiff and Respondent,
VS .
THEODORE C. KARTES,
Defendant and Appellant.
Appeal from: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin
Honorable W. W. Lessley, Judge presiding
Counsel of Record:
For Appellant:
Moses Law Firm, Billings, Montana
Charles Moses argued, Billings, Montana
For Respondent:
Goetz and Madden, Bozeman, Montana
James Goetz argued, Bozeman, Montana
Submitted: September 22, 1981
Decided :fiN 2 i 1981
Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n o f t h e C o u r t .
T h i s i s a n a c t i o n b a s e d on t h r e e a l l e g e d a g r e e m e n t s ,
o n e w r i t t e n and two o r a l , b e t w e e n a h u s b a n d and w i f e . The
D i s t r i c t C o u r t f o u n d t h a t t h e w r i t t e n a g r e e m e n t and a re-
l a t e d o r a l a g r e e m e n t were e n f o r c e a b l e a g a i n s t t h e h u s b a n d by
his wife; a l l c l a i m s r e l a t i n g t o t h e t h i r d o r a l agreement
were d i s m i s s e d . Both p a r t i e s a p p e a l .
L a u r a May B r u n t o n m a r r i e d T h e o d o r e K a r t e s on J a n u a r y
22, 1973. They e n t e r e d i n t o a p r e n u p t i a l a g r e e m e n t which
provided t h a t t h e r e a l and p e r s o n a l p r o p e r t y o f e a c h would
remain s e p a r a t e .
I n 1974 T h e o d o r e K a r t e s b r o u g h t s u i t a g a i n s t h i s two
s i s t e r s f o r t i t l e t o 320 a c r e s of land i n G a l l a t i n County,
Montana. He had h i r e d an a t t o r n e y who e s t i m a t e d that his
f e e s f o r t h e a c t i o n would r a n g e f r o m $ 5 , 0 0 0 t o $ 7 , 5 0 0 .
Theodore and Laura Kartes discussed privately how
they would finance the legal expenses. A handwr i t t e n
a g r e e m e n t was e x e c u t e d by them on S e p t e m b e r 18, 1974, in
which L a u r a K a r t e s a g r e e d t o pay t h e l e g a l f e e s o f T h e o d o r e
Kartes' q u i e t t i t l e a c t i o n and i n e x c h a n g e T h e o d o r e K a r t e s
would g i v e t o L a u r a K a r t e s 1 0 % of h i s 320 a c r e s o r t h e v a l u e
thereof.
Theodore K a r t e s was successful in the quiet title
a c t i o n a t t h e D i s t r i c t Court l e v e l . Laura K a r t e s p a i d her
h u s b a n d ' s l e g a l f e e s amounting t o $8,627.86.
Theodore Kartes' sisters appealed the decision.
Laura Rartes claims that at this time, July 20, 1976,
Theodore K a r t e s a g r e e d t o convey a n a d d i t i o n a l 1 0 % of the
320 acres if she financed the appeal. Theodore Kar t e s
d e n i e s t h a t h e made t h i s o r a l a g r e e m e n t .
T h e o d o r e K a r t e s ' q u i e t t i t l e a c t i o n was s u c c e s s f u l on
appeal and, again, Laura Kartes paid her husband's legal
f e e s amounting t o $7,049.79.
Theodore Kartes has taken no action to convey to
Laura Kartes any portion of the 320 acres or any value
thereof.
L a u r a K a r t e s c l a i m s t h a t t h e r e was a t h i r d a g r e e m e n t
b e t w e e n h e r s e l f and h e r h u s b a n d . She c l a i m s t h a t i n J a n u a r y
1973, s h e a g r e e d t o advance f u n d s t o h e r husband f o r t h e i r
living e x p e n s e s and that h e would repay her expenditures.
She i s c l a i m i n g repayment o f $143,457.53. Theodore K a r t e s
d e n i e s making s u c h a n a g r e e m e n t t o r e i m b u r s e h i s w i f e f o r
t h e i r j o i n t l i v i n g expenses.
Theodore K a r t e s does admit that he entered into a
l i m i t e d a g r e e m e n t t o r e p a y h i s w i f e f o r money s h e a d v a n c e d
him f o r l i v i n g and r a n c h e x p e n s e s . H e claims t h a t the f u l l
amount of t h e money advanced by h i s w i f e i s e v i d e n c e d by
three promissory notes amounting to approximately $4,800.
Laura Kartes claims, however, that the chattel mortgage
e x e c u t e d a t t h e same t i m e a s t h e n o t e s , indicates t h a t her
husband owed h e r a t o t a l o f $ 2 0 , 1 2 3 , and t h a t t h e p r o m i s s o r y
n o t e s w e r e o n l y a p a r t o f t h e o b l i g a t i o n owed t o h e r .
A t trial, Laura Kartes submitted voluminous
a c c o u n t i n g s of her expenses s i n c e 1973, i n c l u d i n g a l l of her
living expenses, some o f her business expenses, and some
expenses f o r t h e support of her son. She a d m i t t e d a t t h e
t r i a l t h a t some of t h e c a l c u l a t i o n s were i n e r r o r and t h a t
some o f t h e e x p e n s e s s h o u l d n o t have been included in the
accountings.
On A p r i l 1 0 , 1 9 8 0 , a t r i a l was h e l d w i t h o u t a j u r y .
The District Court held that the written agreement for 10%
of Theodore Kartes' ranch and the oral agreement for an
additional 10% were enforceable against Theodore Kartes.
The District Court ordered that Theodore Kartes pay Laura
Kartes 20% of the value of the ranch and that the value be
determined at the time he elected to pay her and based upon
20% of the value of the whole ranch. The District Court
dismissed all of Laura Kartes' claims relating to the oral
agreement for living expenses and found that the promissory
notes from Theodore Kartes to Laura Kartes had been repaid
in full. Both parties appeal. Under Rule 29(d), M.R.Civ.P.,
the parties agree that Laura Kartes is the appellant and
Theodore Kartes is the respondent.
We affirm the District Court's holding that Theodore
Kartes owes Laura Kartes 20% of his land and affirm the
dismissal of Laura Kartes' claim for living expenses. We
reverse the District Court's interpretation of the
enforceable contracts to the extent that Theodore Kartes
must pay 20% of the value of his land as a whole. We
recognize that Theordore Kartes has the option to transfer
whichever acreage he chooses, or the value thereof
determined at the time of transfer.
Essentially three issues have been raised by the
par ties:
1. Whether the District Court erred in its
interpretation of the written agreement?
2. Whether there is substantial evidence to support
the District Court's finding of an oral agreement for an
additional 10% of Theodore Kartes' land; if so, is the
agreement nevertheless barred by the statute of frauds?
3. Whether the District Court erred by dismissing
a l l of L a u r a K a r t e s ' c l a i m s f o r l i v i n g e x p e n s e s ?
Respondent, Theodore Kartes, admits that under the
written agreement he has an obligation to convey to
a p p e l l a n t 1 0 % of h i s r a n c h o r t h e v a l u e t h e r e o f . H e claims,
however, t h a t t h e D i s t r i c t C o u r t e r r e d by o r d e r i n g t h a t h e
m u s t c o n v e y 1 0 % o f t h e v a l u e o f h i s l a n d a s a whole i n a n
amount determined at the time he makes the transfer.
Respondent contends t h a t t h e second paragraph of t h e w r i t t e n
a g r e e m e n t g r a n t s h i m t h e o p t i o n t o p a y i n money o r l a n d and
g r a n t s him t h e s o l e d i s c r e t i o n t o c h o o s e which thirty-two
acres t o transfer.
This contention of respondent is well-taken. The
second p a r a g r a p h of t h e w r i t t e n agreement p r o v i d e s :
". . D e s c r i p t i o n a s t o what metes and
b- -n d s t o b e e s t a b l i s h e d w i l l b e d o n e by Ted
o u-
--
- a r t e s o r money ------E --------------
C. K t o be a i d i n hand t o
L a u r a May B r u n t o n by M o r t g a g e t o F e d e r a l Land
Bank i n t h e amount s o s t a t e d a b o v e . " (Empha-
sis s u p p l i e d . )
The District Court itself observed at trial that
respondent had the option to select thirty-two acres
wherever he wanted. A p p e l l a n t h a s a d m i t t e d t h a t t h e r e was
no q u e s t i o n a b o u t r e s p o n d e n t ' s r i g h t t o c h o o s e what l a n d t o
convey. N e v e r t h e l e s s , t h e D i s t r i c t C o u r t awarded damages t o
appellant i n an amount of 10% of the property taken a s a
whole.
A s t h i s C o u r t h a s h e l d many t i m e s , where t h e l a n g u a g e
of a written contract is c l e a r and unambiguous, there is
nothing to construe; the duty of the court is simply to
apply the language as written to the facts of the case.
Danielson v. Danielson ( 1 9 7 7 ) , 172 Mont. 55, 560 P.2d 893,
894, and cases cited therein. See s e c t i o n 1-4-101, MCA.
F u r t h e r , i f a n e x p r e s s c o n t r a c t h a s b e e n e n t e r e d l n t o by t h e
parties, t h e D i s t r i c t Court cannot a l t e r the t e r m s of the
express agreement. See McNulty v. Bewley Corporation
(1979) - Mont . , 596 P.2d 474, 36 St.Rep. 1110,
c i t i n g Keith v. K o t t a s ( 1 9 4 6 ) , 119 Mont. 98, 172 P.2d 306.
Lastly, it is r e v e r s i b l e e r r o r for t h e D i s t r i c t Court to
insert into a contract language not put there by the
parties. H e r r i n v. H e r r i n ( 1 9 7 9 ) , Mont. , 595 P.2d
1 1 5 2 , 36 S t . K e p . 193.
Here, t h e w r i t t e n agreement is c l e a r t h a t r e s p o n d e n t
has the option to choose which property to convey. The
D i s t r i c t C o u r t may n o t d i s r e g a r d t h i s e x p l i c i t l a n g u a g e o f
the contract by ordering respondent t o convey 1 0 % of the
v a l u e of h i s l a n d a s a whole.
Respondent also claims that the intention of the
p a r t i e s was t h a t t h e l a n d would b e v a l u e d a t t h e t i m e o f t h e
execution of the agreement in 1974. Since no contract
language addresses this question, i t was t h e d u t y of the
court to discern the intention of the parties from their
testimony. The D i s t r i c t C o u r t c h o s e t o b e l i e v e a p p e l l a n t
t h a t the p a r t i e s intended t o value the property a t the time
of respondent's performance. The credibility of the
witnesses and t h e weight t o be given their testimony are
matters exclusively within the province of the District
Court in a nonjury case. Harris v. Harris (1980),
Mont . , 616 P.2d 1 0 9 9 , 1 1 0 2 , 3 7 S t . R e p . 1696, 1699.
W must t h e r e f o r e uphold t h e D i s t r i c t C o u r t ' s i n t e r -
e
p r e t a t i o n of t h e c o n t r a c t t h a t t h e v a l u e of t h e land is t o
be d e t e r m i n e d a t t h e t i m e o f r e s p o n d e n t ' s performance. On
tne grounds stated above, however, we must reverse the
District Court's order to the extent it requires respondent
to pay 10% of the value of the land taken as a whole, and we
recognize respondent's right under the written agreement to
transfer any thirty-two acres of his land or value thereof.
In the second issue, respondent contends that there
is not substantial evidence to support the District Court's
finding of an oral agreement for an additional 10% of
respondent's land. Even assuming that suck an agreement
existed, respondent claims that it is barred by the statute
of frauds and is against public policy.
As mentioned earlier, the credibility of witnesses
and weight of evidence are matters for determination by the
District Court in a nonjury case. The rules governing
claims of insufficient evidence are well-established. These
rules were set down recently in Harris where we addressed a
claim similar to that of respondent:
"It is the petitioner's position that there
is insufficient evidence to support a finding
that an oral agreement existed between the
parties. In the resolution of this issue, we
are guided by a number of well-established
principles adhered to by this Court. The
credibility of witnesses and the weight to be
given their testimony are matters which are
exclusively the province of the District
Court in a nonjury case. Corscadden v.
Kenney (1977), 175 Mont. 98, 572 P.2d 1234.
In examining the sufficiency of the evidence
we review the same in a light most favorable
to the prevailing party, and we further
presume the findings of fact and conclusions
of law of the District Court to be correct.
Rock Springs Corp. v. Pierre (1980), -
Mont .
-, 615 P.2d 206, 37 St.Rep. 1378,
1384. only if our review discloses decided a
E- -E----r- n c e of evidence c o n t r a 9-to the
r e o n d e -a- --
findings and c o n c l u.....................r i c t
sions of the Dist
Court, will --- disturb the judgment of the
we
District Court. Morqan and Oswood Const. Co.
v. Big Sky of ~ o n t a n a (1976), 171 Mont. 268,
275, 557 P.2d 1017, 1021." 616 P.2d at 1102.
(Emphasis supplied.)
'The record does not disclose a preponderance of the
evidence contrary to the District Court's finding that the
oral agreement for an additional 10% of respondent's land
existed. The District Court's finding must therefore stand.
Respondent contends also that even if one assumes
that the parties made such an oral agreement, it is barred
by the statute of frauds, as provided in section 28-2-903,
MCA. He claims that it is an agreement which by its terms
cannot be performed within one year (section 28-2-903(a),
MCA), and is an agreement for the sale of real property
(section 28-2-903(d), MCA). The District Court accepted
appellant's position that the statute of frauds does not bar
the oral agreement because appellant fully performed her
part of the bargain. See section 30-11-111, MCA.
Respondent testified that he believed the written
agreement for 10% of his land was to cover the costs of
appeal as well as costs at the District Court level.
According to respondent, then, appellant's payment of the
costs on appeal can be reasonably explained on these
grounds as her performance of the written agreement.
The District Court did not find that the written
agreement covered legal costs for appeal. The record does
not disclose any evidence other than respondent's testimony
to support his contention. Since the District Court is in
the best position to view witness testimony and decide
credibility, and since the record does not disclose a
preponderance of the evidence contrary to its findings,
respondent's contentions of error here lack merit.
Since the District Court found that the oral
agreement for an additional 10% of Theodore Kartes' land
contained the same terms as the written agreement, and there
is evidence t o support this finding, Theodore K a r t e s must
s e l e c t another thirty-two acres to transfer t o h i s wife or
p a y t h e e q u i v a l e n t v a l u e d e t e r m i n e d a t t h e time o f p a y m e n t .
In the last issue, appellant contends that the
D i s t r i c t Court e r r e d by d i s m i s s i n g a l l o f her claims for
l i v i n g expenses.
The D i s t r i c t C o u r t found that t h e promissory notes
g i v e n by respondent to appellant for h i s ranch and l i v i n g
e x p e n s e s had b e e n p a i d and t h a t a n y e x p e n s e s a c c r u i n g p r i o r
t o A p r i l 25, 1 9 7 3 , were b a r r e d by t h e f i v e - y e a r s t a t u t e of
l i m i t a t i o n s a s provided i n s e c t i o n 27-2-202(2), MCA. The
D i s t r i c t C o u r t c o n c l u d e d a s a m a t t e r o f law t h a t a l l o f t h e
e v i d e n c e s u b m i t t e d by a p p e l l a n t u n d e r her claim for l i v i n g
expenses was "speculative, unclear, f i l l e d with errors in
calculations [and] filled with many items admitted on
cross-examination as being improperly included," and the
e v i d e n c e t h e r e f o r e s h o u l d be d i s a l l o w e d i n i t s e n t i r e t y .
Appellant cannot expect t o , i n e s s e n c e , have a l l h e r
a c c o u n t s a t t h e c o u r t and t r a n s f e r t h e burden of proof to
t h e r e s p o n d e n t t o p r o v e what e v i d e n c e i s n o t e n t i t l e d t o be
admitted. The g e n e r a l a c c e p t e d p r o c e d u r e i s f o r t h e moving
party t o lay a foundation for e a c h a c c e p t a b l e a c c o u n t and
t h e n have t h e a d v e r s e p a r t y proceed w i t h i t s c h a l l e n g e , if
any. The District Court's disallowance of appellant's
e v i d e n c e f o r l i v i n g e x p e n s e s was p r o p e r .
Appellant argues that because there was no
s u b s t a n t i a l evidence challenging a majority of her living
expenses, a simple challenge to some should not prevent
r e c o v e r y on t h e b a l a n c e of p r o p e r evidence. Appellant has
twisted t h e meaning o f the s u b s t a n t i a l evidence r u l e . The
rule means only that an appellate court will not disturb the
trial court's conclusions if there is substantial evidence
on the record to support its findings. See Barrett v.
Ballard (1980), - Mont . , 622 P.2d 180, 185, 37
St.Rep. 2038, 2042-2043.
Therefore, tne judgment of the District Court is
affirmed in the following matters: (I) respondent owes
appellant 10% of his 320 acres under the written agreement
between the parties; ( 2 ) respondent owes appellant an
additional 10% of his 320 acres as provided in the oral
agreement between them; and (3) appellant's claims for
living expenses are dismissed.
The judgment of the District Court is reversed
wherein it requires respondent pay 20% of the value of his
land as a whole. Respondent may choose which sixty-four
acres to convey, or he may pay the value of those sixty-four
acres as determined at the time of payment.
-
Justice
We concur:
, ,8' Ldl- Z - , & I d w
;
i Justices