Cowles v. Sheeline

No. 92-171

I N THE SUPREME COURT OF THE STATE O F MONTANA

1993
DONALD C. COWLES,
P l a i n t i f f and R e s p o n d e n t ,

J E A N S H E E L I N E , PAUL C . S H E E L I N E ,
FRANCIS ELDREDGE and t h e h e i r s and
devisees of NELLE B. COX, PAUL D.
S H E E L I N E , SAMUEL D. STEVENS, GEORGE
H. POORE, JOHN F. TYLER, WENDELL L .
J A C Q U I T H , ALTON W . ELDREDGE, CYRUS
B. MENDENHALL a/k/a C . B . MENDENHALL,
SUSAN A. MENDENHALL, NATHANIEL STEVENS,
ELIZABETH P. STEVENS, ETHAN H. COWLES,
B E S S I E COWLES, ALL STOCKHOLDERS AND
SUCCESSORS I N R I G H T , T I T L E S AND
I N T E R E S T TO THE COWLES MINING CO. I N C . ,
a M o n t a n a C o r p o r a t i o n , and ALL PERSONS
KNOWN OR UNKNOWN, CLAIMING OR WHO
MIGHT CLAIM R I G H T , T I T L E , ESTATE OR
I N T E R E S T OR L I E N OR ENCUMBRANCE UPON
THE REAL PROPERTY DESCRIBED I N THE
COMPLAINT OR ANY THEREOF ADVERSE TO
P L A I N T I F F ' S T I T L E THERETO, WHETHER SUCH
CLAIM OR P O S S I B L E CLAIM BE PRESENT OR
CONTINGENT, INCLUDING ANY OF DOWER,
INCHOATE, OR ACCRUED,
D e f e n d a n t s and A p p e l l a n t s .

APPEAL FROM: D i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of S w e e t G r a s s ,
T h e H o n o r a b l e B y r o n L . R o b b , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For A p p e l l a n t :

R i c h a r d W . Josephson, R . Mark Josephson, Josephson
& F r e d r i c k s , B i g T i m b e r , Montana

For R e s p o n d e n t :

J. D a v i d P e n w e l l , B o z e m a n , Montana

S u b m i t t e d on B r i e f s : February 4 , 1 9 9 3
Decided: June 1 0 , 1 9 9 3
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

Defendant, Jean Sheeline, herein called defendant, appeals the
order of the District Court of the Sixth Judicial District, Sweet
Grass County, in an action to quiet title to mining claims near
Cooke City, Montana. The District Court awarded Donald C. Cowles,
herein called plaintiff, a 50% ownership, and defendant the
remaining 50% ownership in the assets of Cowles Mining Company. In
a separate appeal, defendant also appeals the District Court's
order denying her Motion for Relief of Judgment based upon newly
discovered evidence. These have been consolidated into this one
appeal. We affirm.
The issues presented for our review are restated as follows:
1. Did the District Court err in determining that plaintiff
and defendant each owned 50% of the stock in Cowles Mining Company?
2. Did the District Court err in admitting certain testimony
of Don C. Cowles, Jr.?
3. Did the District Court err in awarding costs to plaintiff?
4. Did the District Court err in not granting defendant's
motion for relief of judgment based on newly discovered evidence?
Plaintiff brought this action to quiet title to real property
owned by Cowles Mining Company (the Company), a Montana corporation
which was dissolved by operation of law in 1982. The disputed
property includes ten patented mining claims encompassing an area
of approximately 176 acres.
Cowles Mining Company was incorporated in Montana in 1902.
The original principal shareholders were plaintiff's grandfather,

2
Ethan H. Cowles (E. H. Cowles) , and Nathaniel Stevens. E. H.
Cowles and Nathaniel Stevens each transferred five patented mining
claims to the Company. A minimal number of shares were issued to
several other persons. The Articles of Incorporation authorized
the Company to issue one million shares of $1.00 par value common
stock.
The 1902 corporate charter limited the Company to forty years
of existence. Although the Company mined gold in its early years,
operations ceased when a stamp mill it had constructed was
destroyed by fire in 1904. Nonetheless, the original charter was
extended in 1946 for an additional forty years. Cowles Mining
Company retained ownership of the same ten patented mining claims
throughout its existence.
In order to dispose of plaintiff Cowles' claim against
defendants, the District Court was required to analyze and evaluate
a complex maze of confusing and incomplete testimony and exhibits
dating back to 1902. Although numerous defendants are named in
this action, Jean Sheeline is the sole defendant claiming shares in
the Company. She claims to be the successor to shares representing
Nathaniel Stevens' stock ownership. She claims this ownership
through a number of different parties, including her husband, Paul
D. Sheeline. E. H. Cowles' stock ownership in the Company passed
to Nelle Cox, plaintiff's aunt, and then to plaintiff.
Plaintiff testified that he examined the Company stock book in
Paul D. Sheelhe's Boston office in 1967 and made an incomplete
handwritten list of transactions dating from 1902 to 1920. The
same records were examined by Paul C. Sheeline, defendant's
stepson. Defendant testified that the stock book had been lost or
destroyed and was therefore not available in evidence.
Other evidence established that the original owners, E. H.
Cowles and Nathaniel Stevens, intended that each would own 50% of
the controlling interest in the Company with 5000 of the 1,000,000

shares to be split among the corporate attorney and several other
officers. At trial, plaintiff was the only person who presented
stock certificates. Plaintiff's certificates represented 144,500

shares of Company stock.
The evidence established that a number of E. H. Cowles' share
certificates were lost in a 1917 fire in Livingston, Montana. No
replacement shares were ever issued. Evidence also established
that E. H. Cowles had turned in shares to Stevens as his share of
the expense to construct a new stamp mill. This stamp mill was
never built and there was no evidence to demonstrate the share
certificates were returned to E. H. Cowles.
E. H. Cowles was active in the Company operations. He and
Nathaniel Stevens had been schoolmates in their youth and remained
friends thereafter. Nathaniel Stevens' involvement in the Company
appears to be that of investor and controller of corporate records.
Evidence established that Stevens was a wealthy industrialist who
owned textile companies which later merged and became J. P. Stevens
Co., a multi-million dollar corporation. The Montana gold mining
company, which appears to be the major effort and drain of E. H.
Cowles' financial resources during his lifetime, was only one of
many investments made by Stevens.
The record contains numerous correspondence records saved by
E. H. Cowles, his daughter Nelle Cox, and plaintiff which indicate
their continuing efforts to either sell the Company, interest
investors and exploratory activities, or purchase the remaining
shares from Stevens' successors in interest.
George Naylor, an attorney of the firm of Tyler, Eames and
Reynolds, one-time attorneys for Stevens and the Company, testified
that Nathaniel Stevens wanted to dispose of the stock for estate
tax purposes prior to his impending death and that Paul D. Sheeline
acquired the shares from the Stevens family in 1946 for the sum of
one dollar. Nathaniel Stevens died in 1946. No other evidence was
presented to establish the selling price. Paul D. Sheeline died in
1979.
Paul C., Jean, and William Sheeline and George Naylor
testified about what happened to all corporate records. Paul C.,
Jean and William believed that they were destroyed when the Paul C.
Sheeline family moved from the house where the records had been
kept in an attic box. George Naylor testified that he thought many
of the records had been destroyed by his office on his instruction
so as to save storage space.
Plaintiff, 76 years old at the time of trial, and his
predecessors in interest, established their continuing interest in
the mining company and demonstrated continuing efforts regarding
the property throughout the years of their ownership. E. H. Cowles
paid the taxes on the property until his death in 1938. After that
time, taxes were paid by a lessee, Paul D. Sheeline, Frances
Eldredge, Jean Sheeline, and the Boston law firm of Tyler, Eames
and Reynolds.
The District Court determined that plaintiff and defendant
each owned 50% of the stock of the Company. The District Court
stated its reasons for the decision to award each party 50% as
partly because defendant was unable to produce records and partly
because the court believed that her predecessors had attempted to
"squeeze Cowles out and arbitrarily deprive them of their stock and
their interest in the mining claims . . . and [defendant cannot be]
permitted to profit by such legal maneuvering and manipulation by
her predecessors."
The court's order dated March 3, 1992, awarded 50% to each
party. On March 22, 1992, defendant found what she claims are
numerous and significant records of Cowles Mining Company,
including actual stock certificates issued in the names of Paul D.
Sheeline, Paul C. Sheeline and Alton Eldredge totalling 797,500
shares. These records also included stock transfer records,
correspondence and other documents demonstrating stock ownership
which defendant claims may complete the list made by plaintiff in
1967. The stock book, however, was not among these records.
On May 4, 1992, defendant filed a Rule 6O(b), M.R.Civ.P.,
motion for relief from judgment based on newly discovered evidence.
On July 6, 1992, which was beyond the time allowed by Rule 60(c),
M.R.Civ.P., for ruling on the motion, the District Court issued an
order denying this motion, with an explanation of its reasons for
denial. The defendant appealed the denial of this motion.
I.
Did the District Court err in determining that plaintiff and
defendant each owned 50% of the stock in Cowles Mining Company?
Defendant contends that the District Court could only reach a
result that plaintiff owns 50% of the former assets of the Company
by weaving an unsubstantiated tale of deception, illegalities and
fraud and by utterly ignoring evidence. She further contends that
the District Court disregarded and misapprehended ordinary common
knowledge and understanding of corporate dealings and proceedings.
Defendant assigns clear error to at least 17 specific findings of
fact and contends that nearly all of the court's 56 findings are
incorrect.
This Court will affirm a district court's findings and
conclusions unless they are clearly erroneous. Interstate Prod.
Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285,
1287. In DeSaye, this Court adopted the following three-part test
to determine if findings are clearly erroneous: (1) first, the

Court will review the record to see if the findings are supported
by substantial evidence; (2) if the findings are supported by
substantial evidence, we will determine if the trial court has
misapprehended the effect of the evidence; and (3) if both
substantial evidence exists and the effect of the evidence has not
been misapprehended, whether a review of the record leaves the
Court with the definite and firm conviction that a mistake has been
committed. DeSave, 820 P.2d at 1287. Substantial evidence is
evidence that a reasonable mind might accept as adequate to support
a conclusion; it consists of more than a scintilla of evidence and
it may be somewhat less than a preponderance of evidence. Barrett
v. Asarco, Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080.
Defendant first objects to the general finding which relates
to the amount of stock that E. H. Cowles owned when he died in 1938
and the court's conclusion that E. H. Cowles owned 50% of the stock
at that time. Defendant contends that the specific findings do not
recognize the fact that E. H. Cowles at times sold shares and
transferred shares to the corporation in exchange for new share
certificates. Plaintiff contends that the evidence supports the
court's ruling and, more importantly, that the evidence did not
support defendant's position. We agree with plaintiff.
The District Court based its decision to award 50% of the
assets of the defunctmininq corporation partially on exhibits from
1902 which demonstrate Nathaniel Stevensf and E. H. Cowlesf intent
that each own equal shares, and partially by other evidence,
including plaintiff's notes from 1967 and the certificates and
letters in plaintiff's possession. The documents indicate that
497,500 shares were issued to E. H. Cowles and that the same number
were to be issued to Nathaniel Stevens. The District Court found
that E. H. Cowles sent certificates in as security for the stamp
mill which was never built and that there was no evidence of the
return of such certificates to him. The District Court also
determined there was no evidence E. H. Cowles ever sold any of his
stock. After a careful reveiw of the record. we affirm the
conclusion of the District Court that E. H. Cowles did not dispose
of any of his stock in the Company after its original issue.
Defendant next contends that the District Court erred in
finding that stock Certificate No. 84 was illegal and that the 1946
corporate proceedings were fraudulent and illegal. There is
substantial evidence questioning the validity of Certificate No. 84
issued around 1920 to Nathaniel, Samuel and Moses Stevens for
797,500 shares. That evidence indicates there was an issuance of
stock exceeding the authorized limit of 1,000,000 shares.
Defendant's claim is based upon Certificate No. 84.
The evidence established that plaintiff went to Boston in
early 1946 and spoke to Stevens' attorney, George Naylor. At that
time he tried to acquire other shares in the Company. He also
spoke with Paul D. Sheeline and communicated his interest in
acquiring shares to Paul D. Sheeline. Naylor and plaintiff
discussed a general figure of $500-600 for the Stevens shares in
the Company. Naylor later communicated to plaintiff that a better
offer had been accepted. This better offer turned out to be $1.00
from Naylor's friend, Paul D. Sheeline. The District Court
concluded that plaintiff's 1946 visit sparked Paul D. Sheelinels
interest in the Company.
After plaintiff's 1946 visit, a corporate reorganization took
place. The District Court found "there are numerous facts making
it highly suspect that the purported shareholder meetings ever
occurred, or if they did, whether they were lawful." There is no
evidence that Nelle Cox ever received notice of these meetings,
despite Paul D. Sheeline's knowledge of her stock ownership as
evidenced by his correspondence with her. Plaintiff was not
notified of any of the 1946 meetings, even though he was well known
to counsel for the defendant and operated a drug store within one
block of the law offices in Livingston. In addition, plaintiff
filed a post-trial affidavit stating that he checked the
appropriate newspaper for publication of a notice of shareholdersf
meeting and no notice appeared
The District Court expressly found the minutes of the 1946
meetings to be "unreliable and inaccurate." The court stated:

36. Under these circumstances, it would be
unconscionable, if not fraudulent, to the Cowles family
to give said minutes legal effect as to the number of
shares of stock then outstanding or who the lawful owners
were, as to do so would be to condone an apparent attempt
to squeeze Cowles out and arbitrarily deprive them of
their stock and their interest in the mining claims.
Such events occurred long before Jean Sheeline became
involved, and she is not responsible for them, but
neither can she be permitted to profit by such legal
maneuvering and manipulation by her predecessors.
Naylor stated that the reason for selling the stock to Sheeline
after plaintiff's 1946 visit was to get the stock out of Nathaniel
Stevens1 very substantial estate before he died. Stevens in fact
died shortly after that time. The court added the following
information about Naylor's testimony:
37. . . . [Blut sale to Don Cowles would have
accomplished that. Whatever the reason, it would have
been customary to give the stockbook and all the
corporate records to Sheeline, but Naylor went on to say
they were destroyed, which makes no sense. As
hereinafter indicated, Paul was in fact later found to
have possession of the stockbook by plaintiff. Naylor
also testified at one point there was an offer of
 $250,000 per claim for the property, but yet he arranged
sale to Sheeline for $1.00, and stated that he had no
idea if there was one certificate, numerous ones, or the
number of shares they represented. These inconsistencies
render Naylor's testimony of little value.
We conclude the District Court carefully reviewed the evidence
and based its finding that the proceedings were illegal on the
conclusions that Certificate No. 84 was illegal and that Nelle Cox
and plaintiff were not informed or aware of these proceedings. The
record contains substantial evidence to support this finding.
Defendant also contends that the court found that no evidence
existed to prove the number of shares owned by defendant or her
predecessors. Clearly, the court determined that defendant
succeeded to the Stevens' interest and this is evidenced by its
award to her of 50% of the ownership in the claims. Most of the
evidence presented to establish defendant's ownership was oral
testimony. She presented no written evidence of ownership other
than the minutes of the 1946 meetings. The only other evidence to
establish that defendant owned shares is George Naylor's testimony
and the testimony of the Sheeline family. We conclude the District
Court's findings reflect its consideration of this as well as the
interests of the Stevenses to which she claims to have acquired.
This Court has thoroughly reviewed the record to determine
that the numerous findings of the District Court are supported by
substantial evidence. Applying the second and third factors of the
DeSaye test, we further conclude that the District Court has not
misapprehended the effect of the evidence and we are not left with
a firm conviction that a mistake has been made.
 We hold that the District Court's findings relative to stock
ownership and the 1946 proceedings to reorganize the corporation
are not clearly erroneous.

Did the District Court err in admitting the testimony of Don
C. Cowles, Jr.?
Defendant contends that the District Court should not have
admitted Don C. Cowles, Jr. 's testimony and exhibits because he was
not disclosed as an expert witness, he was not qualified as either
an expert or a lay witness to give the testimony he presented and
the exhibits he prepared and testified about were presented for the
first time at trial.
Defendant responded to her receipt of Don C. Cowles, Jr. 's
exhibits on the first morning of the trial with a formal Memorandum
of Objection to his testimony and exhibits. Defendant contends
that the District Court allowed the witness to determine how many
shares were issued and who owned them, which is expert opinion
testimony on the ultimate issue in the case and invaded the
province of the trier of fact. The District Court responded as
follows to that objection:
THE COURT: Well, I'm going to let Mr. Penwell
proceed in part, and I don't know just what questions he
will ask, but if it will save the Court pawing through
several hundred exhibits to see that one letter refers to
two shares and another one to ten shares and so forth, to
trace the title to them, you don't have to be an expert
to do that as far I can see, and so I may permit some
answers. Let's see what Mr. Penwell asks him.
Defense counsel then asked if he could have a continuing objection.
The District Court denied this request and ordered him to make
objections as the testimony progressed.
Part of Don C. Cowles, Jr. 's testimony involved his
interpretation and his typewritten copy of his father's handwritten
notes from the Company stock book, which incorporated information
from other exhibits which had been introduced to prove plaintiff's
ownership interest. Defendant subsequently objected to the
admission of Exhibits 78 and 79. Exhibit 78 purported to determine
which share certificates were reissued in Certificate 84, a
certificate which the court found was illegal. Exhibit 79 was a
document prepared by Don C. Cowles, Jr. which summarized
plaintiff Is position on the total number of shares as exceeding the
1,000,000 authorized.
Defendant contends that Rule 602, M.R.Evid., prohibits the lay
witness from testifying to matters not within his personal
knowledge and that Don C. Cowles, Jr. was allowed to testify to
such matters. The result was that the court allowed him to testify
as an expert and, thus, abused its discretion. Plaintiff contends
that Don C. Cowles, Jr. did not testify as an expert and that the
exhibits served no function other than as demonstrative evidence,
admitted by the court "as aids to the courtw to clarify Exhibit 68,
the notes of plaintiff, Don Cowles, Sr., and to determine totals of
stock ownership.
Rules 602, M.R.Evid., limits a witness1 testimony to his
personal knowledge. Further, I1a lay witness may even give an
opinion on an ultimate factual issue if it complies with the
foundational requirements in Rule 701, M.R.Evid., however, the
opinion testimony must be 'confined to matters of fact.'" First
Bank (N.A.) -- Billings v. Clark (l989), 236 Mont. 195, 202, 771
P.2d 84, 88 (quoting In re the Estate of Smith (1988), 230 Mont.
140, 148, 749 P.2d 512, 517; and Rule 704, M.R.Evid.).
Clearly, the court did not allow Don Cowles, Jr. to testify as
an expert witness; rather, the court permitted Cowles to proceed to
testify and determined the propriety of plaintiff's counsel's
questions as each was asked. Rule 701, M.R.Evid., provides:
Rule 701. Opinion testimony by lay witnesses.
If the witness is not testifying as an expert, the
witness1 testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness1
testimony or the determination of a fact in issue.
The record demonstrates that the court allowed Cowles to testify
about the summaries he had made relating to the other exhibits in
evidence and admitted his exhibits for demonstrative purposes only.
Demonstrative exhibits are admissible if they supplement the
witness1 spoken description of the transpired event, clarify some
issue in the case, and are more probative than prejudicial. Palmer
by Diacon v. Farmers Ins. Exch. (1988), 233 Mont. 515, 522-23, 761
P.2d 401, 406. They are inadmissible only when they do not
illustrate or make clearer some issue in the case; that is, where
they are irrelevant or immaterial, or where they are of such a
character as to prejudice the jury. Workman v. McIntyre Const. Co.
(l98O), 190 Mont. 5, 24, 617 P.2d 1281, 1291 (citing 29 Am. Jur. 2d
Evidence 5 785) . The testimony given by Don C. Cowles, Jr. was
relevant in that it helped to clarify plaintiff's position on the
number of shares issued.
The admission of such evidence is within the discretion of the
District Court and this Court will not reverse unless a manifest
abuse of discretion is shown. Palmer, 761 P.2d at 406. See also
Bache v. Gilden (l992), 252 Mont. 178, 827 P.2d 817. There is
nothing in the record to indicate that the District Court accorded
any significant weight to this testimony. To the contrary, the
court specifically stated in Finding No. 53:
Both sides made some efforts to trace the history of the
stock issued as indicated by these findings, but due to
the absence of most of the corporate records and
antiquity of most of the other evidence, this is largely
speculative, inconclusive and unreliable.
The contested testimony certainly involved a fact in issue,
the second requirement of Rule 701, M.R.Evid. It also helped to
clarify plaintiff's position on that issue to the District Court.
Because the evidence presented in this case was complex, confusing
and incomplete, Don C. Cowles, Jr.'s testimony was helpful to the
District Court in determining which of the exhibits previously
admitted could determine the total number of shares.
While Rule 1006, M.R.Evid., was not mentioned or argued by the
parties, we conclude that it is applicable to this issue. Rule
1006, M.R.Evid., provides:
Rule 1006. Summaries.
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary,
or calculation. The originals, or duplicates, shall be
made available for examination or copying, or both, by
other parties at a reasonable time and place. The court
 may order that they be produced in court.
Rule 1006, M.R.Evid., and the identical federal rule, Rule 1006,
Fed.R.Evid., have been applied in a limited number of appeals. In
general, the cases would affirm the District Court's decision in
this case to admit the testimony of Don C. Cowles, Jr. See, e q ,
..
United States v. Johnson (9th Cir. l979), 594 F.2d 1253, &.
denied, 444 U.S. 964, 100 S.Ct. 451, 62 L.Ed.2d 376 (1979)
(proponent of a summary must establish that the underlying
materials upon which the summary is based are admissible in
evidence); United States v. Duncan (5th Cir. 1990), 919 F.2d 981,
cert. denied, - U.S. -, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991),
r h q denied, 991 U.S. App. Lexis 1316 (5th Cir. 1991), (rule
e'
requires only that the underlying records be voluminous and that
in-court examination be inconvenient): and United States v. Citron
(2nd Cir. 1986), 783 F.2d 307, appeal after remand, 853 F.2d 1055
(1988) (summaries cannot be admitted without the proper
foundation).
A case from the District of Columbia circuit most closely
resembles the facts before us. See United States v. Lemire (D.C.
Cir. 1983), 720 F.2d 1327, &. denied, 467 U.S. 1226, 104 S.Ct.
2678, 81 L.Ed.2d 874 (1984). In that case, the defendants argued,
as defendant argues here, that Rule 602 requires that non-expert
witnesses testify only as to matters of which they have personal
knowledge for the purpose of ensuring reliability.
The lay witness in Lemire was an FBI agent who was also a
certified public accountant. The lay witness relied on the
testimony of prior witnesses and the numerous documents previously
introduced. The witness summarized the evidence about a complex
cash flow through offshore companies that the government had
introduced by direct examination of its witnesses. The defendants
objected to his testimony on the grounds that he was an improper
witness under the Federal Rules of Evidence and that his testimony
would unfairly prejudice their defense. The court stated:
... In this case, neither Rule 602's literal language
nor its overriding purpose was violated. [The witness]
did not testify about any of the events underlying the
trial: he only summarized evidence about cash flows that
several prior witnesses had already offered. As to that
evidence, he testified from his personal knowledge of the
transcripts and exhibits. Hence Rule 602 does not bar
his testimony.
This court has not previously ruled on the
admissibility of one witness's summary of evidence
already presented by prior witnesses. Other courts,
however, have recently confronted the question and
permitted such summaries under Rule 1006, allowing for
admission into evidence of summaries of documents too
voluminous to be conveniently examined in court. . ..
[W]e note that Rule 1006 was designed primarily as an
exception to the best evidence rule, see United States v.
Johnson, 594 F.2d 1253, 1255 (9th Cir.) , cert. denied,
444 U.S. 964, . . . and since the evidence itself here
was already before the court, there is no issue of
inadmissibility under Rule 1002 as a replacement for the
"best evidence." . . . Hence, "[elntirely aside from Rule
1006, there would still be ample authority for the
admission of [summary testimony] into evidence. .. .
There is an established tradition that permits a summary
of evidence to be put before the jury with proper
limiting instructions." . .. Thus, we conclude that the
Federal Rules of Evidence do not bar use of non-ex~ert
summary testimony such as is presented in this case.
Lemire, 720 F.2d at 1347 (citations omitted) (emphasis supplied).
The court further stated:
[Jlust as an expert can assist a jury by imparting
special knowledge that helps the jury to understand
 technical evidence, a non-expert summarv witness can help
the iury orqanize and evaluate evidence which is
factually complex and fraqmentallv revealed in the
testimony of a multitude of witness throuqhout the trial.
Lemire, 720 F.2d at 1348 (emphasis supplied).
While Lemire involved a jury trial and our case involves a
trial to the court, the principles are applicable in both cases.
We conclude that Rule 1006, M.R.Evid., authorized the admission of
the testimony of Don C. Cowles, Jr. under the facts of this case.
The District Court concluded that the evidence regarding stock
ownership was speculative, inconclusive and unreliable in various
aspects. The extensive findings on the part of the District Court
demonstrate that the court carefully considered all of the evidence
submitted to it. We conclude that the District Court properly
allowed Don C. Cowles, Jr. to assist the court by his summary
testimony of other documents already in evidence under Rule 1006,
M.R.Evid. We further conclude that Don C. Cowles, Jr.Is exhibits
are summaries made by him based on his own perception of other
admitted facts, that the summaries were helpful to the court and
that his testimony and exhibits were permitted under Rules 602 and
701, M.R.Evid.

We hold the District Court did not abuse its discretion in
permitting Don C. Cowles, Jr. to testify as a lay witness and to
introduce summaries which he had made to clarify admitted evidence.
111.

Did the District Court err in its award of costs to plaintiff?
Defendant contends that the District Court's award of $469.50
in costs to plaintiff should be reversed as plaintiff was not the
prevailing party. Each party claimed 100% stock ownership at the
outset of the lawsuit. Each was awarded only 50%. Defendant
contends that this was a victory and a loss for both sides;
therefore, no costs should have been awarded and the court should
have found there was no prevailing party.
Plaintiff acknowledged during trial that he should be declared
owner of only 50% of the company. He contends that he is the
prevailing party because he in fact received the relief he sought.
The general rule is that the party who receives an affirmative
judgment in his favor at the conclusion of the entire case is
considered the prevailing party. Schmidt v. Colonial Terrace
Associates (1985), 215 Mont. 62, 68, 694 P.2d 1340, 1344 appeal
after rem., 223 Mont. 8, 723 P.2d 954 (1986).
--
We conclude that plaintiff was the prevailing party as he
received the relief he asked for at trial. We hold the District
Court correctly awarded costs to plaintiff.
IV.

Did the District Court err in not granting defendant's motion
for relief of judgment based on newly discovered evidence?
Defendant submitted a Rule 60(b), M.R.Civ.P., post-judgment
Motion for Relief from the Judgment under Rule 60(b)(2) and S 25-
11-102(1) and ( 4 ) , MCA. Defendant based this motion upon newly
discovered evidence which she found on March 22, 1992, consisting
of stock certificates and other documents concerning ownership of
Cowles Mining Company. The District Court's Judgment was dated
March 3, 1992. An appeal was filed on April 3, 1992. This Court
granted defendant's motion to stay that appeal pending the District
Court's ruling on her post-judgment motion.
Rule 60 (c), M.R. Civ.P. , provides that Rule 60(b) motions shall
be determined within the 45-day period provided by Rule 59(d),
M.R.Civ.P., or shall be deemed denied. The time limits set forth
in Rule 59, M.R.Civ.P, are mandatory. Marvel Brute Steel Bldg. v.
Bass (1980), 189 Mont. 480, 483, 616 P.2d 380, 382. An order
denying a motion is a nullity where it is issued after the time for
ruling on the motion has expired. Marvel, 616 P.2d at 382.
The District Court did not rule on that motion prior to the
expiration of the 45-day period allowed by Rule 59(d), M.R.Civ.P.,
and on June 18, 1992, defendant's motion was deemed denied.
Apparently the parties created some confusion for the District
Court as the court was under the impression that the Supreme Court
had granted extra time for ruling on the motion. When the ~istrict
Court became aware that the motion was deemed denied, it
nevertheless issued its Order Denying Motion for Relief From
Judgment dated July 6, 1992, stating therein the reasons for
denying the motion.
The District Court noted in the order that the comment may be
moot, but nonetheless deemed it advisable to issue its ruling on
the matter. The court's order of July 6, 1992, denied the
defendant's request which is the same result as the denial by
passage of time under the rule.
Defendant contends that the contents of the District Court's
order further illustrates the failure of the court to examine the
evidence and the documents filed in this case. The District Court
concluded:
The district court has reviewed copies of all of the
documents, correspondence, etc., which Ms. Sheeline has
presented post-trial along with her motion and brief, and
finds no new evidence that would iustifv settincr aside or
modif~inq the iudment ~reviouslv entered herein, or
qrantina a new trial, Such material includes
correspondence from and to Paul C. Sheeline as late as
September 1980 . . Jean thereafter continued
correspondence, payment of taxes, etc., during the
ensuing years, received a letter from David Penwell
(plaintiffIs attorney) in 1987, and this action was filed
in 1990, so the court does not find Jean would have
easily forgotten the files such material was in, and she
did not exercise due diligence in looking for it. It .
, . is highly unlikely the "new evidence" would have
produced any different result at trial for reasons
hereinafter stated.
. . . .
. . . If anything, much of the "new evidencettconfirms
legal manipulating and hanky-panky to squeeze out the
Cowles stockholders, and surely does not constitute
sufficient or equitable grounds for setting aside the
judgment or ordering a new trial.
....
In the opinion of the district court, judicial
economy would not be served by retrial herein, and it
would be a gross miscarriage of justice to modify the
judgment so as to deprive Cowles of his one-half interest
in the property on such purportedly newly discovered
evidence.
The remainder of the order reflects the court's detailed analysis
of the newly discovered evidence.
Rule 60(b)(2), M.R.Civ.P., provides in pertinent part:
On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: . . . (2) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59(b). ...
Newly discovered evidence may constitute grounds for a new
trial if the following conditions are met: (1) the alleged newly
discovered evidence came to the moving party after trial; (2) it
was not a want of due diligence which precluded its earlier
discovery; (3) the materiality of the new evidence is so great that
it would probably produce a different result on retrial: and (4)
the new evidence is not merely cumulative, not tending only to
impeach or discredit witnesses in the case. In re the Marriage of
Barnes (1992), 251 Mont. 334, 336, 825 P.2d 201, 202-03.
The basic criterion for granting new trials because of newly
discovered evidence is that the evidence could not have been
discovered and produced at trial with the exercise of reasonable or
due diligence. Kartes v. Kartes (1977), 175 Mont. 210, 214-15, 573
P.2d 191, 194. The moving party has the burden to show due
diligence in unearthing the newly discovered evidence before relief
from judgment or a new trial is proper. Brunner v. LaCasse (1990),
241 Mont. 102, 104, 785 P.2d 210, 211. "Every presumption is
indulged that the movant for a new trial on the ground of newly-
discovered evidence could have secured the testimony for the former
trial, and the movant must negative any negligence on his part."
Bushnell v. Cook (1986), 221 Mont. 296, 302, 718 P.2d 665, 669
(quoting Walter v. Evans Products Co. (1983), 207 Mont. 26, 31, 672
P.2d 613, 616) .
Defendant found documents which she contends are material
while in the process of moving from her home in Boston where she
had lived since 1962. Affidavits from defendant, one of her
attorneys, Paul C. Sheeline, William Sheeline and Judith Bleakney
Savage, a friend who assisted in defendant's move, swear to the
following information: Prior to trial, an extensive search was
conducted for Paul D. Sheeline's stock certificates and the Company
records, including several searches of defendant's home, and it is
understandable that defendant did not find the records as they were
mailed to her by Paul C. Sheeline after her husband's death when
she was very disoriented and distressed. The old files were wedged
behind a broken bottom shelf in an old cabinet in her utility
closet. The utility closet was packed with numerous sundry items
including paint, light bulbs, and old magazines. Defendant kept
important documents elsewhere. She would not have found these
documents except for the fact that she was moving the old cabinet
out of the closet in anticipation of moving. She previously
searched the utility closet but had no reason to believe there was
any important paperwork in that closet. Defendant does not
remember receiving these documents or how they got into the old
cabinet in the utility closet.
Defendant contends that she exercised due diligence in
locating these documents prior to trial. Prior Montana cases have
addressed the issue of due diligence. For example, in Kartes, the
parties contested title and ownership of a ranch. Kartes, 573 P.2d
at 194. This Court held the defendants did not meet the burden to
show due diligence because they had not made a significant effort
to go through the books, records and papers, of which the alleged
"newly discovered1' evidence was a part, which were in their
possession and because the evidence was cumulative. Kartes, 573

23
P.2d at 194.
However, in Alan D. Nicholson, Inc. v. Cannon (1983), 207
Mont. 476, 674 P.2d 506, this Court held the district court did not
abuse its discretion by granting a motion to reopen a hearing when
an attorney located a misfiled document in his files four days
after the hearing concluded. Another case finding due diligence is
Halse v. Murphy (1989), 237 Mont. 509, 774 P.2d 418, in which this
Court affirmed a district court decision to reverse a summary
judgment order when a plaintiff's expert testified by signed
affidavit that when he gave his deposition testimony, he was unable
to render an opinion because he had not had the opportunity to
review another doctor's notes and records, despite earlier
extensions of time to the plaintiff for her expert to review
records.
After a careful review of the defendant's evidence in this
case, we conclude the District Court properly should have found
that defendant exercised due diligence in looking for the Company
records but was unable to find them at an earlier date.
However, before the evidence presented by defendant could be
admitted, the remaining requirements for admission of newly
discovered evidence must be met. Our review of the newly
discovered evidence has disclosed a number of documents which were
not presented at trial. Most of these are cumulative and
duplicative. Nearly all of the evidence is dated after Paul D.
Sheeline became interested in the Company. Stock certificates
issued to the Sheelines and Alton Eldredge in 1946 are signed by

24
Alton Eldredge as president and Paul D. Sheeline as secretary of
the Company. These certificates shed no light on what happened
prior to 1946. If anything, they present further questions. For
example, some of the stock issued prior to the date of devaluation
is issued at the devalued par value. Further, a letter written by
Paul C. Sheeline to his father in 1941 tends to indicate that Paul
D. Sheeline thought he owned around 50% of the stock at that time,
but a letter from George Naylor in April of 1946 refers to a large
number of shares being transferred to Paul D. Sheeline on that day.
There are proxy statements in the file--all blank and unsigned with
nothing to prove the 1946 proceedings were legal. Typed and
handwritten shareholder lists and records are mostly undated and
all unsigned and, thus, there is no way to know who prepared them.
As the District Court noted, they are inadmissible hearsay. Many
of the documents concern property tax assessments and payments made
by Paul D. Sheeline from 1946 through 1978. This evidence was
presented at trial.
We have carefully reviewed the documents and affirm the
decision of the District Court that the admission of the newly
discovered evidence would not change the result of the trial. We
emphasize that the Cowles Mining Company stock book was still
missing and was not included in the new evidence. "Stock books and
stock transfer records of a corporation serve as evidence to both
creditors and the corporation of actual stockholders therein."
Thisted v. Tower Management Corp. (1966), 147 Mont. 1, 9, 409 P.2d
813, 818. We conclude the admissible documents do not constitute
 e v i d e n c e l i k e l y t o r e s u l t i n a d i f f e r e n t outcome.
W e h o l d t h e D i s t r i c t C o u r t c o r r e c t l y d e n i e d t h e motion f o r

relief from judgment on t h e b a s i s of newly d i s c o v e r e d e v i d e n c e .

Affirmed.

We Concur: I/

*J hief Just'

Justices
 I respectfully dissent. The appellant has met all of the
conditions required for grant of a new trial. The newly discovered
evidence was found subsequent to trial, the motion for new trial
was diligently and timely made, the failure to previously produce
the evidence was not for want of due diligence, and the new
evidence was not cumulative.
As to the materiality of the new evidence, I believe it is not
only material but just as probative or more so than the evidence
produced at trial. This type of case, considering the antiquity,
is one of limited available evidence and the courts should be
considerate of all available evidence.
I would grant the motion for relief of judgment and grant a

new trial.

&
/
Justice
 June 10. 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order w s sent by United States mail, prepaid, to the following
a
named:

Richard W. Josephson
R. Mark Josephson
JOSEPHSON & FREDRICKS
P.O. Box 1047
Big Timber, MT 5901 1

J. DAVID PENWELL
Attorney at Law
P.O. Box 1677
Bozeman, MT 59715

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA