No. 82-05
I N THE SUPREME COURT O THE STATE OF MONTANA
F
1982
D R A A.
O C S ROSE,
P l a i n t i f f and A p p e l l a n t ,
-vs-
JAMES S. ROSE,
D e f e n d a n t and Respondent.
Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County of 1 4 i s s o u l a , The H o n o r a b l e
J o h n S . Henson, J u d g e P r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
M i l o d r a g o v i c h , Dale & Dye, M i s s o u l a , Montana
Lon J. D a l e , M i s s o u l a , Montana
F o r Respondent :
S k e l t o n & Cooley; R o b e r t E . Skelton, Missoula,
Montana
--
Submitted on B r i e f s : July 9, 1982
Decided: O c t o b e r 7 , 1982
Filed: OCT 7 - '1982
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of
the Court.
On November 9, 1981, the Fourth Judicial District Court
entered judgment construing a warranty deed by which Dorcas
Rose transferred her interest in the Thunderbird Motel,
iss sou la, Montana, to James Rose. The District Court concluded
that road signs, sign permits and leasehold interests in the
lands upon which the signs are located, passed as appurtenances
to the Thunderbird Motel under the deed. The District Court
also concluded that James Rose was entitled to recover
$1,944.00 from Dorcas Rose as a result of an accounting
settlement of the parties' previous partnership interests in
the Thunderbird Motel. Dorcas Rose appeals.
The issues to be reviewed are:
(1) Whether the District Court erred in concluding
that four road signs, sign permits and leasehold interests
in separate noncontiguous land upon which the signs are
affixed passed as appurtenances to the Thunderbird Motel
property under warranty deed?
(2) Whether the District Court erred in concluding
that as a result of the accounting settlement between parties'
partnership interests James Rose was entitled to one thousand
nine hundred forty-four dollars ($1,944.00)?
We find no error. The District Court's judgment is
affirmed.
During the course of the parties' twenty-six year
marriage and joint operation of the Thunderbird Motel, four
signs were constructed on noncontiguous leased property for
advertising purposes. The signs were located between one-
quarter and three miles from the Thunderbird Motel.
Upon dissolution of the Rose marriage on May 19, 1976,
the parties' real and personal property was distributed as
follows:
"That all real and personal property acquir-
ed and accumulated by [Dorcas Rose] and [James
Rose] shall remain in the ownership of the
parties as the same are now t i t l - e d , by mutual
agreement, except the real and personal prop-
erty located at Missoula, Montana, known as the
Thunderbird Motel, which property has been sold
to [James Rose] by [Dorcas Rose] and said prop-
erty shall remain the sole property of [James
Rose] subject to a mortgage in favor of [Dorcas
Rose]." Missoula County District Court, Cause
No. 43982, Final Decree of Dissolution, dated
May 19, 1976.
The Thunderbird Motel sale, referred to therein, had been
finalized six days earlier by execution of five written
documents: a note, warranty deed, trust indenture, mortgage
and escrow receipt. Nowhere in the five sales instruments
was there any specific reference to the billboards, sign
permits or correspondent leasehold interests. Nor was there
a sales or property settlement agreement executed which
inventoried the specific real and personal property that was
to pass as a result of the sale.
At the time of sale and dissolution, Dorcas Rose had
possession of the sign permits and lease agreements. The
signs themselves advertised the Thunderbird Motel.
Less than one year later Dorcas Rose instituted an
action to prevent James Rose from using the tradename,
"Thunderbird Motel." In a counterclaim James Rose sought
delivery of the four sign permits and leases as well as
recovery of monies Dorcas Rose converted from the parties'
Broadway Motel checking account. The Broadway Motel was
jointly owned and operated by the Roses until June, 1977,
when James Rose sold his interest therein to Darcas Rose.
Dorcas Rose did not prevail upon her claim. Instead
the District Court ruled that James Rose was the sole owner
of the tradename, "Dorcas Rose having conveyed all her
right, title and interest in the business known as the
Thunderbird Motel, to [James Rose] on May 13, 1976." The
District Court made no specific ruling on the counterclaim.
The counterclaim came to trial in April, 1981. After
hearing the testimony presented by the parties the District
Court rendered the decision which forms the basis of this
appeal.
Dorcas Rose believes that the District Court was mistaken
when it implicitly relied upon certain water rights cases as
proper precedent for the sign question. Dorcas Rose submits
that those cases are not instructive because they involve
things which are by statute defined to be appurtenances.
The statutory definition of appurtenance is set forth
in section 70-15-105, MCA, wherein it states:
"Incident or Appurtenance Defined. A thing
is deemed to be incidental or appurtenant to
land when it is by right used with the land
for its benefit, as in the case of a way or
watercourse or of a passage for light, air,
or heat from or across the land of another."
Whether or not a thing is an appurtenance under the statutory
definition is a question of fact. Yellowstone Valley Co. v.
Associated Mortgage Investors (1930), 88 Mont. 73, 290 P.
255.
Although road signs, sign permits and leasehold interests
of this nature have few characteristics in common with the
things listed as appurtenances under section 70-15-105, MCA,
the District Court properly concluded that in this instance
the real and personal property interests represented by the
sign permits and leases were used for the benefit of the
Thunderbird Motel property and therefore passed as appurtenances.
The District Court not only found that the billboards advertised
the Thunderbird Motel at the time of sale and dissolution
but that the signs, sign permits and leases were acquired as
a result of the parties' joint efforts and expenditure of
Thunderbird Motel monies and that they were carried as
assets on the Thunderbird Motel books.
It is apparent from the District Court's decision that
the parties did not regard the signs, sign permits and
leases as separate property of Dorcas Rose which, coinciden-
tally, was being used to benefit their jointly-operated
motel business located on the conveyed property. The parties
treated the signs, etc., as an integral part of the motel
business as is evident from the trial court's finding that
as recently as 1975 the parties advertised the Thunderbird
Motel property as including "four well-placed road signs."
In this circumstance, it was proper to conclude the contested
personalty was appurtenant to the motel at the time of sale.
The second error claimed by Dorcas Rose involves the
District Court's findings related to a settlement of the
parties' partnership interests as a consequence of the sale
and divorce. Dorcas Rose contends that there is insufficient
evidence to support the trial court's finding that she
converted nine thousand dollars ($9,000.00) from the parties'
joint Broadway Motel checking account to her own use. Ms.
Rose maintains that the only evidence concerning the accounting
between the parties' Thunderbird Motel and the Broadway
Motel accounts was presented by her expert accountant and
that his testimony compels a finding and conclusion that in
fact James Rose owes four thousand four hundred dollars
($4,400.00) to Dorcas Rose.
The trier of fact is free to disregard the expert
testimony of one party and adopt the testimony of the other
party as long as the other party's evidence is credible and
substantial. Jacques v. Montana National Guard (1982),
Mont. -I - P.2d , 39 St.Rep. 1565, 1571-1572.
Here, James Rose testified that Dorcas Rose impermissibly
withdrew nine thousand dollars ($9,000.00) from their joint
Broadway Motel account and used such monies for her own
benefit. He presented a signed countercheck to substantiate
his testimony. Ms. Rose's own expert testified that about
one-half of that sum was expended for personal expenses. It
was but his opinion that the remainder was used for business
purposes through means of a second separate Broadway Motel
account established by Dorcas Rose. The testimony of Ms.
Rose's certified public accountant did not conclusively
establish that the monies were not diverted for nonbusiness
uses.
The proper function of the trial court is to assess the
evidence, ascertain the witnesses' credibility and render
its findings based upon substantial credible evidence. If
that is accomplished, this Court cannot overturn its decision.
Crabtree v. Crabtree (1982), Mont . -1 - P.2d I
39 St.Rep. 1668. Here, finding no insufficiency of evidence,
we affirm.
We concur;