Tillett v. Lippert
| Decision Date | 08 January 1996 |
| Docket Number | No. 95-187,95-187 |
| Citation | 275 Mont. 1,909 P.2d 1158 |
| Parties | Lloyd S. TILLETT and Abbie Tillett, husband and wife; William E. Tillett; and John P. Tillett; and Latahna Entel, Plaintiffs and Respondents, v. Nikki A. LIPPERT and Robert R. Tillett, as Co-Personal Representatives of the Estate of Royce E. Tillett; Marian J. Tillett; Nikki A. Lippert as Personal Representative of the Estate of Kenneth Lippert; Nikki A. Lippert; et al., Defendants and Appellants. |
| Court | Montana Supreme Court |
Leonard H. Smith (argued), Bruce A. Fredrickson; Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for Respondents.
Defendants appeal from the Findings of Fact, Conclusions of Law and Judgment of the Montana Thirteenth Judicial District Court, Carbon County, partitioning real property and awarding compensatory and punitive damages against the estate of Kenneth Lippert. We affirm.
We restate the issues raised on appeal as follows:
1. Did the District Court err in modifying the partition recommendation of the referee?
2. Did the District Court err in awarding compensatory and punitive damages for assault against the Estate of Kenneth Lippert?
This case arises out of an acrimonious dispute between two branches of the Tillett family. The parties to this action are all members of the extended Tillett family and were all cotenants of approximately 240 acres in Carbon County, Montana, known as the "home place."
On February 27, 1991, plaintiff Latahna Entel was driving a vehicle along established roads on the "home place." Kenneth Lippert brandished, pointed and eventually discharged a loaded rifle at Latahna hitting her vehicle. At trial, Latahna claimed Kenneth's actions caused her apprehension of bodily injury and emotional distress.
Plaintiffs filed a complaint, seeking to partition the "home place," to quiet title, to obtain injunctive relief, and to recover damages for assault arising out of the February 27, 1991 incident. On June 19, 1991, the District Court entered Findings of Fact, Conclusions of Law and a Preliminary Injunction. The Preliminary Injunction restrained the parties from harassing each other, from restricting access to the "home place," and prohibited the Lipperts from engaging in additional construction activities outside the "construction area." The District Court noted that it was "very much aware of the volatile nature of the relationship that ... exist[ed] between the two family factions involved in this action." During the pendency of this action, and while the Preliminary Injunction was in effect, appellants continued to exclude respondents from portions of the "home place" in violation of the Preliminary Injunction.
To assist the District Court in equitably dividing the property, and by stipulation of the parties, the court appointed Dennis Warren as the single referee to recommend the partition of the "home place." The order appointing the referee stated that "the final report of the referee shall not be binding on the Court." In December 1992, Warren submitted a proposed Certificate of Survey to the court. He did not submit a report. Neither respondents nor appellants agreed with the Certificate of Survey proposed by Warren, accordingly, the partition action proceeded to trial.
Following a bench trial, the district judge personally toured the premises to be partitioned. The district judge found that the physical partition proposed by Warren was not an equitable partition because the proposed partition did not provide respondents access to their federal lease land located north of the "home place." Accordingly, to equitably partition the property and to provide respondents access to the federal lease land, the District Court found a more equitable partition line for the northern boundary and directed that the line on the proposed Certificate of Survey be changed. The court also directed that a survey be made to obtain accurate legal descriptions of the partitioned parcels of property.
The District Court further found that Kenneth Lippert's conduct was outrageous and done with actual malice, and awarded both compensatory and punitive damages. The appellants filed a motion for a new trial and the District Court denied that motion. Thereafter, the appellants filed the instant appeal.
After hearing the evidence and touring the property, the district judge concluded that Warren's proposed partition was inequitable. In order to equitably divide the "home place," the district judge modified the northern boundary of the proposed partition to give respondents access to adjoining federal lease land.
In reviewing a district court's findings of fact in a partition action the applicable standard of review is whether the findings are clearly erroneous. Troglia v. Bartoletti (1994), 266 Mont. 240, 244, 879 P.2d 1169, 1171; Kravik v. Lewis (1984), 213 Mont. 448, 453, 691 P.2d 1373, 1375. 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 committed. Troglia, 879 P.2d at 1171.
Appellants argue that it was not within the district judge's discretion to modify the boundaries suggested by the referee. Appellants rely on DeHaan v. Gallatin-Madison Ranch (1991), 250 Mont. 304, 308, 820 P.2d 423, 426, for the proposition that the report of the referee is to be rejected only for reasons that would justify the reversal of a jury's verdict. In DeHaan, this court cited Ivins v. Hardy (1950), 123 Mont. 513, 518, 217 P.2d 204, 206 (Ivins II ) for this proposition. See also Ivins v. Hardy (1958), 134 Mont. 445, 454, 333 P.2d 471, 475, cert. denied, 359 U.S. 1001, 79 S.Ct. 1141, 3 L.Ed.2d 1031 (1959) (Ivins III ). We note that both Ivins cases, as well as DeHaan, borrow their holding that the referee's report should be rejected only for reasons that would justify the reversal of a jury's verdict from cases dealing with attorney discipline. Ivins III, 333 P.2d at 475 (citing In re McCue (1927), 80 Mont. 537, 261 P. 341; In re Lunke (1919), 56 Mont. 226, 182 P. 126). These disciplinary cases were not partition actions, nor did they apply the statute now codified at § 70-29-212, MCA.
Our holdings in Ivins II, Ivins III, and DeHaan, are contrary to § 70-29-212, MCA. Pursuant to § 70-29-212, MCA, the court may "confirm, change, modify, or set aside the report." As is clear from the statute, the district court has discretion in reviewing or adopting the report of the referee. Accordingly, we overrule Ivins II, Ivins III, and DeHaan insofar as they hold that a referee's report is to be rejected by the district court only for reasons that would justify the reversal of a jury's verdict.
In the present case, referee Warren did not submit a report to the court as envisioned by § 70-29-211, MCA. This statute requires referees to:
make a report of their proceedings, specifying therein the manner in which they executed their trust and describing the property divided and the shares allotted to each party with a particular description of each share.
Rather, he submitted only a proposed Certificate of Survey.
Thus, it is clear from the record that there was no report for the District Court to either affirm, adopt or reject. Accordingly, it is unnecessary for this Court to determine whether there was substantial evidence to support a referee's report.
Partition is an equitable action in which the court has great flexibility in fashioning appropriate relief for the parties. Frame v. Frame (1987), 227 Mont. 439, 443, 740 P.2d 655, 658. Here, in the order appointing the referee, the district judge stated that he would not be bound by the report of the referee. Then, after hearing the testimony of the parties and reviewing the referee's proposed partition, the district judge toured the property before issuing his Findings of Fact, Conclusions of Law and Judgment. The goal of a partition action is to divide the property so as to be fair and equitable and to confer no unfair advantage on any of the cotenants. Frame, 740 P.2d at 658. Here, the District Court's findings are not clearly erroneous and there is substantial evidence in the record to support the District Court's partition of the property. The District Court was acting well within its discretion, pursuant to § 70-29-212, MCA, when it modified the referee's proposed partition.
In its Findings of Fact and Conclusions of Law Re: Assault and Battery and Malicious Destruction of Property, the District Court found that Kenneth Lippert's actions in pointing and shooting a loaded gun at Latahna Entel were irresponsible and outrageous. Latahna testified that Kenneth Lippert approached her vehicle, pointed the gun at her and fired seven shots at the wheels and tires. He then told her "get the hell out of there, Latahna, you've had it now" and ordered her out of the vehicle. The court awarded money for the damage to the vehicle as well as compensatory damages for the assault. In reviewing a district court's findings of fact, we determine whether they are clearly erroneous. Columbia Grain Int'l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678. From the record, it is clear that there is substantial credible evidence to support the District Court's award of compensatory damages.
In addition, the court found that Kenneth Lippert's conduct was "outrageous and done with actual malice" and that his conduct should be punished and an example made thereof in order to discourage others from engaging in similar conduct in the future. Accordingly, the District Court awarded punitive damages in the amount of $5,000...
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