No. 05-528
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 137N
_______________________________________
DAVID CERISE, ROBERT CERISE, MARGARET
AGUIRRE, PATRICIA RICHARDSON and MARY
SANZ, Surviving Descendants of ERNEST CERISE,
Petitioners and Appellants,
v.
VIOLA CERISE, Personal Representative in the
ESTATE OF HENRY CERISE,
Respondent and Respondent.
______________________________________
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson, Cause No. DP 03-3533
The Honorable Loren Tucker, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Timothy M. Dick, Dick & Thomas, P.C., Butte, Montana
For Respondent:
Daniel R. Sweeney, Attorney at Law, Butte, Montana
____________________________________
Submitted on Briefs: June 1, 2006
Decided: June 27, 2006
Filed:
______________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 The surviving descendants of Ernest Cerise (Ernest) appeal from the District
Court’s findings of fact, conclusions of law, and order, dated May 23, 2005, in favor of
Viola Cerise, the Personal Representative to the Estate of Henry Cerise. We affirm.
¶3 Ernest makes numerous arguments on appeal, but most stem from the question of
whether the testator, Henry Cerise, owned the real property that he attempted to devise in
his will to Ernest, or whether a partnership originally comprised of Henry and his brother,
Guido Cerise, owned the property. Ernest further argues that the District Court allowed
Viola to make arguments that should have been barred by judicial estoppel and that § 72-
2-616(1)(f), MCA, required payment of the value of the disputed property to Ernest.
¶4 The Cerise family operated a ranch in Elk Park in Jefferson County bisected by
Interstate 15. Henry, Guido and their mother, Hermine Cerise, purchased what was
known as the “lower ranch” from Francis Vujovich, the widow of Rody Vujovich, in
1955. Hermine deeded her interest in the lower ranch in 1956 in equal shares to Henry
and Guido, as joint tenants with full rights of survivorship. Henry and Guido held title to
the “upper ranch” as tenants in common as successors of their parents.
2
¶5 Henry and Guido commenced business as partners in the Cerise Ranch sometime
before 1960. The partnership operated until Guido’s death in 1979. Henry reconstituted
the partnership with Guido’s heirs as partners. The partnership operated through Henry’s
death. Henry died testate on March 19, 2003. He appointed Viola Cerise to act as his
Personal Representative. Viola submitted Henry’s will to probate.
¶6 Henry’s will contained the following specific devise:
THIRD: I give, will, devise and bequeath to my brother, ERNEST
CERISE, that parcel of land and the improvements thereon which was
formerly owned by Rody Viavich [sic] and was purchased by the Cerises
on or about 1955.
Viola, as Personal Representative, challenged this bequest on the grounds that Ernest did
not own the lower ranch individually, but rather the lower ranch was owned by the
partnership comprised of Henry and Guido’s heirs.
¶7 The District Court held a hearing on this matter in January and February 2005.
The District Court found that the partnership paid property taxes each year on the lower
ranch and that the partnership treated the lower ranch as part of the partnership assets.
The District Court rejected the notion that bare legal title could determine whether the
property constituted partnership property. The District Court instead relied upon the
actions of the parties and determined that Henry and Guido had treated the lower ranch as
partnership property throughout the existence of the partnership. The District Court thus
concluded that the Personal Representative’s proposed distribution of the lower ranch as
partnership property comported with the parties’ intent and approved the distribution.
¶8 Ernest argues on appeal that the District Court should have considered the
3
evidence in light of the presumption favoring individual ownership of real property used
in a partnership enterprise. Ernest further contends the District Court abused its
discretion regarding its consideration of certain evidence given the court’s failure to set a
formal discovery schedule, as requested by Ernest, and its failure to consider rebuttal
exhibits.
¶9 We review a district court’s findings of fact to determine whether they are clearly
erroneous. In re McKenzie, 2001 MT 25, ¶ 5, 304 Mont. 153, ¶ 5, 19 P.3d 221, ¶ 5. We
conduct plenary review of a district court’s conclusions of law to determine whether they
are correct. City of Billings v. Gonzales, 2006 MT 24, ¶ 6, 331 Mont. 71, ¶ 6, 128 P.3d
1014, ¶ 6.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. It is manifest on the face of the briefs and record before us that
substantial evidence supports the District Court’s findings of fact, that the legal issues are
clearly controlled by settled Montana law that the District Court correctly interpreted, and
that there was no abuse of discretion by the District Court.
¶11 We affirm the judgment of the District Court.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
4
/S/ JOHN WARNER
/S/ JIM RICE
/S/ JAMES C. NELSON
5