Zavarelli v. Might

NO. 89-44

IN THE SUPREME COURT OF THE STATE OF MONTANA
1989

ERMINDO ZAVARELLI,
cc.
plaintiff and Respondent,
1 '
-vs-

ANGELA MIGHT,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial ~istrict,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Connell & Beers; Thomas J. Beers, Missoula, Montana
For Respondent:
John C. Schulte, is sou la, Montana
Hugh Kidder, Missoula, Montana

Submitted on ~ r i e f s : June 30, 1989
~ecided: September 14, 1989

Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

This appeal presents a procedural issue as to the power
of a district court, upon remittitur and remand of a cause to
the District Court from this Court "for further proceedings."
We determine that a district court, on reversal and remitti-
tur from this Court "for further proceedings," is reinvested
with full jurisdiction of the cause, and that the issues
raised in the cause are generally open for the ~istrict
Court's decision, except only for legal conclusions con-
trolled by the law of the case established in the reversal.
Angela Might appeals from a decision of the District
Court, Fourth ~udicial~istrict, is sou la County, which held
adversely to Angela that the common boundary line between her
real property and that of her brother, ~rmindo Zavarelli,
followed an historic old board fence.
Ermindo zavarelli and Angela ~ i g h t are brother and
sister. Through the probated will of their father, in 1968,
they each became life tenants with undivided interests in the
whole of certain abutting tracts of land in iss sou la County,
previously owned by the father.
The father died in 1966. ~eginning in that year,
Ermindo commenced building certain apartment buildings on the
property subject to then undivided life estates of the par-
ties. This continued until eight apartments were built, all
of them being situated on Lot 18, Cobban and c ins more Orchard
Homes No. 2.
Ermindo obtained permits for the installation of septic
tanks and sewer drainage lines from the iss sou la County
Health Department. The District Court found that part of a
septic tank system (or sewer system) intruded on lands
contained within the Eddy Edition to the south of Lot 18.
The court further found that ~rmindoplaced the septic tanks
on the property, before the life estate interests were
divided, north of a board fence which the court found was
understood by the parties to be on the south property line of
Lot 18.
On February 25, 1971, ~rmindo made, executed and deliv-
ered to Angela a quitclaim deed to certain of the real prop-
erty, and in return on the same date Angela made, executed
and delivered a quitclaim deed to Ermindo to certain of the
real property. The remaindermen after the life estates were
all grandchildren of the deceased father and all of the
remaindermen joined in the execution and delivery of the
quitclaim deeds. Thus, the issues in this case involve only
the rights of the life estate holders, ~rmindoand Angela.
The District Court further found and concluded that the
parties had by mutual agreement divided the property subject
to the life estates between them by delineating in the
quitclaim deeds the exact descriptions of the property each
was to own. They further found that they relied on the legal
descriptions as set forth in recorded subdivision plats in
Missoula County and that they were both under the impression
that the fence erected by the father was a boundary line
between the two divided properties.
In the first trial of this cause, the ~istrict Court
did not disturb the descriptions of the property deeded by
Angela to Ermindo in the mutual quitclaim deeds. Instead,
the District Court concluded that Ermindo had obtained a
prescriptive easement to that parcel of the property, which
under the description of the quitclaim deeds, belonged to
Angela. That judgment of the District Court was appealed by
Angela to this Court, and in zavarelli v. ~ i g h t(Mont. 1988),
749 P.2d 524, 45 St.Rep. 211, we reversed the holding that
Ermindo had a prescriptive easement over Angela's lands. In
reversing and remanding the cause for further proceedings in
the District Court, we said:
Ermindo's complaint proceeds on the
theory that he and Angela had divided
the property in accordance with direc-
tions received from the father and that
the true boundary line between their
property should have been that marked by
a board fence south of Lot 18. Although
the District Court made findings and
conclusions respecting the location of
the fence, the judgment that there was a
prescriptive easement, is a refutation
of any title to the disputed area in
Ermindo and is, instead, a conclusion
that Angela owned the line up to the
subdivision line in Lot 18, but subject
to the purported prescriptive easement
of Ermindo. Ermindo cannot both own the
surface of land up to the line of the
board fence, and have a prescriptive
easement under the same ownership. The
easement would merge in the title.
Ermindo could not claim title to the
surface of the disputed area south of
Lot 18 by adverse possession, since he
does not pay the taxes thereon. Section
70-19-411, MCA.
Since the prescriptive easement cannot
be supported, the judgment must be
reversed. We remand for such further
proceedings as are necessary in the
light of- this opinion - - facts
and the
found a the ~istrictCourt. (~mphasis
supplied.1
When the District Court received the cause again after
reversal and remand to it, the court held further
proceedings. Angela moved for a judgment f o r the ~istrict
rri
Court ejecting Ermindo Zavarelli from Angela's property and
requiring him to remove the existing sewer system. On the
other hand, Ermindo moved for summary judgment, claiming that
on the facts already found by the District Court the descrip-
tions of the quitclaim deeds to each other constituted a
mutual mistake between the parties, because of their inten-
tion to fix the common boundary line to that of the old board
fence.
In deciding the matter, the District Court made no
further findings of fact, but made additional conclusions of
law to the effect that when the parties divided their respec-
tive ownership interests in the real property, they agreed
and understood that the real property would be divided along
a boundary fence, which they mistakenly believed represented
the boundary line as shown on described tracts on the records
of Missoula County; that because of their mutual mistake, the
deeds did not accurately convey to each other the exact
parcels that were intended to be transferred, and concluded
that the exact proper line of the historic old board fence
was one which the court described with particularity. The
District Court thereupon quieted title in Ermindo for the
duration of his life estate in the real property up to the
old board fence. This judgment had the effect of including
within Ermindo's real property the sewer system
above-mentioned.
Angela has now appealed a second time to this Court
from the decision of the District Court. She contends on
appeal that under our former Opinion in zavarelli v. Might,
supra, the District Court on remand had to conclude and enter
a judgment that she was the owner of the disputed property,
that Ermindo was trespassing thereon, and that the court
erred in allowing a new affirmative defense of mutual
mistake.
Angela's contention that the ~istrict Court was duty
bound after remand and remittitur to hold Ermindo a trespass-
er on her land requires an examination of the doctrine of
"law of the case." In explaining "law of the case," thj-s
Court has said:
The rule is well established and long
adhered to in this state that where,
upon an appeal, the Supreme Court, in
deciding a case presented states in its
opinion a principle or rule of law
necessary to the decision, such pro-
nouncement becomes the law of the case,
and must be adhered to throughout its
subsequent progress, both in the trial
court and upon subsequent appeal; . . .
It is a final adjudication from the
consequences of which this Court may not
depart, nor the parties relieve them-
selves [citing cases].
Carlson v. Northern pacific ailw way Co. (1929), 86 Mont. 78,
281 P. 913, 914. See also ~ i s c u s v. Beartooth ~lectric
cooperative (1979), 180 Mont. 434, 591 P.2d 196.
It is generally true, however, that the doctrine of law
of the case applies to questions of law which are decided on
the case. The doctrine does not apply to questions of fact:
The general principle seems to be that
the doctrine of the law of the case
applies only to determinations of ques-
tions of law and not to questions of
fact. It has been said that the doc-
trine of the law of the case applies to
all questions of law identical to those
on the former appeal, and on the same
facts and to the same questions only,
that the doctrine is rarely, and in a
very limited classification, applied to
matters of evidence as distinguished
 from rulings of law, and that a decision
on appeal on a question of fact does not
generally become the law of the case,
nor estop the parties on a second trial
from showing the true state of facts.
5 Am.Jur.2d 198, Appeal and Error S 755 (1962).
Under the doctrine of law of the case, therefore, the
~istrictCourt on remand was precluded from determining as a
matter of law that Ermindo had acquired a prescriptive ease-
ment over property owned by Angela. However, our order of
reversal and remittitur told the District Court that the
remand was "for such further proceedings as are necessary in
the light of this opinion and the facts found by the District
Court." Under the facts found by the District Court in the
first trial, it had concluded that the parties intended to
divide their property using as a common boundary line an old
board fence.
The rule of law of the case, therefore, precluded the
District Court from making any further conclusions that would
have the effect of establishing a prescriptive easement in
Ermindo. The rule of law of the case did not, however,
preclude the District Court from reaching a different
conclusion of law based on the facts which it had already
found.
We come now to the effect of the mandate from this
Court to the District Court when, on reversal and remittitur,
the District Court was instructed to take "such further
proceedings as are necessary in light of this opinion and the
facts found by the District Court."
On remand, the trial court may consider
or decide any matters left open by the
appellate court, and is free to make any
order or direction in further progress
of the case, not inconsistent with the
 decision of the appellate court, as to
any question not presented or settled by
such decision. The issues are generally
open on a retrial when a case is re-
versed and remanded for further proceed-
ings. If the mandate speaks only in the
light of the special facts found, the
lower court is at liberty to proceed in
all other respects in the matter that,
according to its judgment, justice may
require. The trial court should examine
the mandate and the opinion of the
reviewing court and proceed in conformi-
ty with the views expressed therein.
The mandate is to be interpreted accord-
ing to the subject matter and, if possi-
ble, in a manner to promote justice.
5 Am.Jur.2d 420, 421, Appeal and Error, 5 992 (1962).
When this Court reversed the first judgment of the
~istrictCourt as to a prescriptive easement, and remanded
the cause to the District Court for further proceedings, the
cause was then before the District Court in the posture of
not having a final judgment. In that situation, when there
is nothing in the terms of the mandate to prevent it, the
trial court has the power, on reconsideration, to find the
same facts and change its holding, or to find different facts
consistent with its original holding. Imperial Chemical
Industries Ltd. v. National Distillers and Chemical Corp. (2d
Cir. New York), 354 F.2d 459, 19 A.L.R.3d 492. ~ssuming
nonapplication of the doctrine of law of the case, the D ~ S -
trict Court was free to correct any error in its original
findings and conclusions, without hearing new evidence as to
matters not passed on by this Court. Hutchins v. State
(Idaho 1979), 603 P.2d 995.
The conclusion of law that the descriptions in the
mutual deeds were the result of a mutual mistake between the
parties at the time of the execution of the deeds is, of
course, a different conclusion of law from a holding that one
party has a prescriptive easement over the land of another.
Nothing in our first opinion in this cause prohibited the
District Court from reaching a different conclusion of law
based upon the same or nearly identical facts. The finding
of fact as to the mutual intent of the parties at the time of
the execution of the deeds is founded on substantial evi-
dence. It is therefore not clearly erroneous (Rule 52(a),
M.R.Civ. P. ) and the conclusion of law based thereon must be
affirmed by us.
Angela argues, however, that the pleadings do not
support the theory of mutual mistake. It is true in this
case that the original complaint filed by ~rmindoasked for
injunctive relief to prevent Angela from interfering with the
sewer system. There is no direct allegation in his pleadings
as to mutual mistake, although his original complaint assumed
that he was in fact the owner of the property on which the
sewer system was situated. The answer of Angela contended
that she was in fact the owner of the property by virtue of
the descriptions in the deeds and she cross-complained
against ~rmindo for damages arising from trespass and a
reduction in the value of her property. Regardless of the
pleadings, however, an issue in the cause in the first trial
before the ~istrictCourt was whether a mutual mistake had
been made by the parties in determining the common boundary
line. The ~istrictCourt made findings with respect to that
issue. In this situation, the judgment finding mutual mis-
take between the parties and correcting the description is
not improper. Under Rule 54(c), M.R.civ.P., "every final
judgment shall grant the relief to which the party in whose
favor it is rendered is entitled, even if the party has not
demanded such relief in his pleadings."
Angela, however, raises two further objections to the
judgment entered after remand which have some merit. The
first is that in the conclusions of law and judgment, the
District Court entered a description of the common boundary
line based upon an exact survey. No evidence was taken in
the case that the line as surveyed followed accurately the
line of the old board fence. Apparently the description of
the common boundary line adopted by the District Court was
supplied by counsel for Ermindo through proposed findings.
We cannot determine from the record whether the survey accu-
rately reflects the position of the old board fence.
The second objection raised by Angela is that the
District Court, in making its final judgment, quieted title
to the disputed land not only as between Angela and ~rmindo,
but also as to their respective remaindermen. Since no
issues in the cause at this point directly affected the
remaindermen, they were not parties to the action.
As to the first objection, the boundary line, this
Court will on remand permit a period of sixty days for Angela
to present evidence, if she may desire, as to the exact
location of the old board fence, if she determines that it
does not agree with the description now entered by the D ~ S -
trict Court. AS to the second contention, we will modify the
judgment so that title is quieted only as to the parties to
this cause.

CROSS-APPEAL
 Angela appeals from the denial by the ~istrictCourt of
costs which she claims by virtue of being the successful
litigant on the first appeal.
Rule 33, M.R.App.P., allow costs, if not otherwise
provided by this Court in its decision, automatically to the
successful party against the other party. Angela timely
filed her memorandum of costs after our decision in the first
appeal in the amount of $ 7 0 6 . 7 5 . The District Court did not
enter judgment with respect to those costs.
Since Angela was the successful party, and properly
filed her memorandum of costs, she is entitled to receive the
same, although eventually the judgment on remand went against
her. No appeal was taken by either party from that portion
of the second judgment that each party should bear his or her
own costs of suit.
Accordingly, we will on remand, direct the entry of
judgment in favor of Angela for her costs on her successful
appeal and sustain the further judgment of the ~istrictCourt
that each party will otherwise bear his or her own costs.

CONCLUSION
The judgment of the ~istrict Court is affirmed with
these modifications, which shall be entered by the District
Court upon remand in this cause:
1. The District Court shall, if required by Angela
within 6 0 days from the date of remittitur, grant a further
hearing for the presentation of evidence as to the exact
location of the old board fence.
2. ~ i n a l judgment of the District Court shall quiet
title to the disputed strip only as to the parties Ermindo
and Angela.
 3. Angela shall be awarded her costs incurred in the
first appeal in the sum of $706.75.
4. Otherwise these parties shall bear his or her own
costs in the ~ i s t r i c tCourt and

Justice