No. 90-628
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
INTERSTATE PRODUCTION CREDIT ASSOCIATION OF
Plaintiff and Respondent,
-vs-
JOSEPH L. DeSAYE AND GRACE L. DeSAYE,
Defendants, Counter-Claimants
INTERSTATE PRODUCTION CREDIT ASSOCIATION OF GREAT FALLS, MONTANA,
Counter-Defendant.
APPEAL FROM: District Court of the Twelfth Judicial ~istrict,
In and for the County of Choteau,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leo Graybill, Jr. ; Graybill, Ostrem, Warner &
Crotty, Great Falls, Montana.
For Respondent:
John Paul; Alexander, Baucus & Linnell, Great Falls,
Montana.
Submitted on briefs: October 3, 1991
Decided: November 14, 1991
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from a judgment of possession of the Twelfth
Judicial District, Chouteau County. Subsequent to a foreclosure
action, the District Court found that the appellants, Joe and Grace
DeSaye (DeSaye), were not entitled to possession of their farm in
Loma, Montana during the statutory redemption period. We affirm.
A question in this case involves the District Court's denial
of a motion in limine during the foreclosure proceeding. DeSaye was
precluded from introducing expert testimony regarding the interest
rates charged by respondent, Interstate Production Credit
Association of Great Falls, Montana (IPCA). However, this Court
granted IPCA1s motion dismissing DeSayest appeal of the District
Court's ruling on the motion in limine because DeSayes failed to
file their appeal of the foreclosure judgment and decree in a
timely fashion.
There is one issue for our review. Did the District Court err
by finding that Joseph L. DeSaye was not entitled to possession of
the foreclosed farm during the statutory redemption period?
Following a jury verdict in favor of IPCA, the District Court
entered a judgment and decree of foreclosure against DeSayes.
DeSaye objected that the judgment failed to identify how the issue
of possession during the year of redemption would be resolved. The
court ordered briefs on the possession issue and an evidentiary
hearing was held. The subject property, located at Loma, Montana,
is a large irrigated farm consisting of two houses and several
outbuildings. The Itlarge"house is occupied by DeSayes' son Grant,
2
Grant's wife and their children. Grant utilizes the property to
run cattle independently of his father. In addition, along with
his father, he attends to farming operations. Initially, the court
found that during the redemption period DeSaye would be entitled to
possession of the 'small house1 but not to the 'large house',
outbuildings and surrounding grounds.
Subsequent to the District Court's decision, this Court
decided Federal Land Bank of Spokane v. Snider (1991), 48 St.Rep.
285, 808 P.2d 475. In Snider, this Court held that when determining
possession of foreclosed property during the redemption period
there is no basis for dividing lands that the execution debtor
occupies. In May, 1991, we requested the District Court to
reconsider its decision in light of the Snider decision. The
District Court reviewed the record, found it unnecessary to obtain
further evidence and determined that DeSaye did not occupy the
foreclosed land as a home for himself and his family thereby
granting possession of all the foreclosed land to IPCA. DeSaye
appeals.
Section 71-1-229, MCA, provides in relevant part that:
The purchaser of lands at mortgage foreclosure is
not entitled to the possession thereof as against the
execution debtor during the period of redemption allowed
by law while the execution debtor personally occupies the
land as a home for himself and his family.
Determining who is entitled to possession of the property hinges on
whether DeSaye (the execution debtor) personally occupied the land
as a home for himself and his family. Resolution of this matter is
a question of fact to be determined by the trial court.
This Court will affirm the findings of a trial court sitting
without a jury unless the findings are clearly erroneous. Rule
52(a), M.R.Civ.P. In comparison, this Court will affirm the
verdict of a jury if there is substantial credible evidence in the
record to support the verdict. It is necessary to clarify these
two standards and their proper application.
Substantial credible evidence when used to support a jury
verdict is fairly well understood; however, when substantial
evidence is used in the clearly erroneous standard it is less
clear. If a finding is not supported by substantial evidence it is
clearly erroneous. The converse proposition that a finding
supported by substantial evidence cannot be clearly erroneous is
not true in a non-jury case. Wright and Miller, 9 Federal Practice
and Procedure, CiviI 3 2585 at p. 735. vvSubstantial
evidence and
clearly erroneous are not synonymous and a finding may be set
aside, though supported by substantial evidence if found to be
clearly erroneous.gt W.R.B. Corp. v. Geer (C.A. 5th, 1963) , 313
F.2d 750.
We adopt the following three-part test to determine if a
finding is clearly erroneous. First, the Court will review the
record to see if the findings are supported by substantial
evidence. Second, if the findings are supported by substantial
evidence we will determine if the trial court has misapprehended
the effect of evidence. Western Cottonoil Co. v. Hodges (C.A. 5th
1954) , 218 F. 2d 158.; Narragansett Improvement Company v. United
States (1961), 290 F.2d 577. Third, if substantial evidence exists
and the effect of the evidence has not been misapprehended the
Court may still find that [A] finding is 'clearly erroneous' when,
although there is evidence to support it, a review of the record
leaves the court with the definite and firm conviction that a
mistake has been c~rnmitted.~~
U.S. v. U.S. Gypsum Co. (1948), 68
S.Ct. 525, 333 U.S. -364, 92 L.Ed. 746.
In the instant case, the District Court based its findings
that DeSaye did not reside in Loma on the following six facts.
First, DeSayelstelephone number was listed in Arizona at the home
of his present wife, Carol Struck, while no listing was found in
his name at the Loma farm. Second, neither DeSayels mailing
address nor vehicle registration identify the Loma farm. His
mailing address is a post office box at Havre, Montana. Third,
Desaye was found to have spent more than 50 percent of his time in
Arizona. Fourth, his current wife resides in Mesa, Arizona and has
never spent a night at the Loma farm. Fifth, Joe and Grace Desaye
divorced in 1989. Joseph L. DeSaye claimed in petition for
dissolution and was found in the final decree of marriage
dissolution to be a resident of the State of Arizona. Sixth, the
farmhouse is occupied by DeSayest son and his family who run
livestock independent of DeSaye.
We find that the facts above provide substantial evidence that
DeSaye did not make his home at the Loma farm. DeSaye contends that
these facts are not determinative. He testified and maintains that
he considers the Loma farm to be his home. Numerous examples from
the record are cited to refute the District Court's finding and to
support his contention that he does in fact live at the Loma farm.
DeSaye alleges that the record clearly supports a finding that he
does reside at the Loma farm and that he should be given possession
during the redemption period.
Although conflicts may exist in the evidence presented, it is
the duty of the trial judge to resolve such conflicts. Due regard
is to be given the trial court's ability to judge the credibility
of the witnesses. Rule 52(a), M.R.Civ.P. This Court's function is
not to substitute its judgment for the trier of fact. Wallace v.
Wallace (1983), 203 ~ o n t .255, 661 P.2d 455.
The language of 5 71-1-229, MCA, is clear in that execution
debtors themselves must 'personallyt reside at the foreclosed
property. We decline Desaye's invitation to include his son's
family residence at the farm as being able to substitute for his
own. While it is unclear why the District Court initially found
that DeSaye did reside in the 'small house,' but on reconsideration
found that the small house was not his home, it remains that the
substantial evidence does support the court's finding on
reconsideration. The District Court did not misapprehend the
effect of its evidence. Furthermore, a review of the evidence does
not leave us with a definite and firm conviction that a mistake has
been committed. Affirmed.
Justice
/
We Concur: