Troglia v. Bartoletti, 94-091

• Decision Date: 30 August 1994
• Docket Number: No. 94-091,94-091
• Citation: 879 P.2d 1169,266 Mont. 240
• Parties: James M. TROGLIA, Jr., Plaintiff and Appellant, v. E.A. BARTOLETTI, et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 1169

879 P.2d 1169

266 Mont. 240

James M. TROGLIA, Jr., Plaintiff and Appellant, v. E.A. BARTOLETTI, et al., Defendants and Respondents.

No. 94-091.

Supreme Court of Montana.

Submitted on Briefs June 30, 1994.

Decided Aug. 30, 1994.

Ward A. Shanahan, Gough, Shanahan, Johnson & Waterman, Helena, for appellant.

Edward Beaudette, Anaconda, for respondents.

WEBER, Justice.

In a partition action in the District Court of the Fifth Judicial District, Jefferson County, this is an appeal from a property valuation and order allocating the sale proceeds from a public sale of the real property as between the co-tenant parties to the action. We affirm in part and reverse in part.

The issues on review are:

I. Did the District Court err in awarding defendant E.A. Bartoletti $24,450 for his interest in the land and improvements?

II. Did the District Court err in awarding defendants damages for "wrongful exclusion and wrongful deprivation" when the claim was not properly raised by the parties?

III. Did the District Court err in waiving the formal notice of entry of judgment pursuant to Rule 77(d), M.R.Civ.P.?

The parties are tenants in common in the ownership of two patented mining claims, in Jefferson County, Montana, with a total acreage of 41.179 acres.

The property was first leased by James M. Troglia, Sr. and Louis Bartoletti, father of defendant E.A. Bartoletti. It originally included two older structures and also showed evidence of active mining operations. James M. Troglia, Sr. and Louis Bartoletti built a cabin on the property and jointly used it for recreation. In 1958, they purchased the property in equal shares and thereby became tenants in common. They also purchased another unpatented mining property nearby on which they built another dwelling. In 1964, this cabin was destroyed by fire.

James M. Troglia, Sr. and Louis Bartoletti began having business problems and defendant E.A. Bartoletti became involved in the disputes. Several lawsuits followed.

In October of 1970, James Troglia, Sr. deeded his half interest in the property to his son, plaintiff James Troglia, Jr. (Troglia) and in December 1971, Louis Bartoletti deeded his half in equal shares to his son defendant E.A. Bartoletti (Bartoletti) and his daughter Mrs. Thelma Casey (Casey) of Great Falls. Casey sold her one-quarter interest in the surface to Troglia for $7,000 in 1990 before the commencement of the present action. Casey retained her mineral rights. As a result, Troglia owned 75% of the surface estate and 50% of the minerals and Bartoletti owned 25% of the surface and 25% of the minerals. Casey owned the remaining 25% of the minerals.

Troglia and Bartoletti disputed the cause of the destruction of a cabin. Attempts by Troglia to settle the dispute and get the cabin rebuilt were unsuccessful. Troglia then notified Bartoletti that he was going to rebuild the cabin himself and that it would be his exclusive property. Bartoletti objected to this plan and stated his right to have the land partitioned.

Troglia proceeded to build a quite sophisticated lodge on a fenced 14.11 acre portion of the property. Troglia repaired the existing fence and also made extensive improvements to the other two older cabins on the combined properties. Troglia also filed a water right on a spring that runs through the property.

Troglia has paid taxes on all of the improvements since 1978. The county assessed Troglia based on a one-acre "homestead tract" valued as a homesite until the present time. The rest of the property was assessed as grazing land. Troglia, Bartoletti, and Casey have paid taxes on their respective interest in the land.

Troglia eventually filed an action claiming 1) an "ouster" and repudiation of Bartoletti's surface rights in a 14.11-acre portion of the 41.179 acre property, 2) the need for a partition or sale of all of the property, and 3) a request for quiet title in himself against all other persons unknown. Bartoletti filed an answer containing a general and special denial.

The case was tried on February 26, 1992. In its order the court appointed a receiver to appraise and sell the property in the event an agreement between the parties concerning partition could not be achieved. The court granted Troglia a right of first refusal on the same terms and conditions of any bona fide offer. The court amended its order, striking this right of first refusal and directing the receiver that Troglia be compensated for the reasonable value of improvements made by him during his exclusive occupancy of the property. The court also at this time gave specific directions to the receiver for the appraisal and sale of the property.

The receiver did not complete the sale arrangements during the winter of 1992-93. He later requested permission of the court to try to effect a partition by mutual agreement. In June of 1993, he reported that he was unable to accomplish this. On July 28, 1993, the court issued an order directing sale. The property was advertised for sale and bids were accepted. The bids were opened by the court on October 27, 1993 and Troglia's bid of $201,000 was the highest bid received.

On November 5, 1993, Troglia moved the court for disposition of sale proceeds. The court issued an order on January 28, 1994, finding that Bartoletti owned a 25% interest in both the land and the improvements and was owed the sum of $24,450. The court further determined that the reasonable rental value of the property from which Bartoletti had been "wrongfully excluded" equaled $1,000 per year for a total of $16,000. The court then waived the provisions of Rule 77(d), M.R.Civ.P., and made its judgment immediately effective, even though the actual document was not filed until January 31, 1994, and not received by the parties until February 1, 1994. Troglia appeals this January 28, 1994 order of the court. Judgment is stayed pending appeal and the quiet title action remains pending before the District Court.

I.

Did the District Court err in awarding defendants $24,450 for their interest in the land and improvements?

Troglia contends that the District Court was statutorily bound by § 70-29-207, MCA, to separate the value of improvements from the value of the land; instead, the court simply awarded Bartoletti the sum of $24,450 for land and improvements. Troglia contends the court ignored the evidence of valuation and did not base its decision upon any pertinent evidence. Troglia contends that the land was appraised by his appraiser at $30,000, and that Bartoletti is due only $13,000 of that sum. Bartoletti contends that the statute relied upon by Troglia is inapplicable because there was no partition.

Under Tonack v. Montana Bank of Billings (1993), 258 Mont. 247, 854 P.2d 326, our standard of review of the District Court's findings of fact is to determine if they are clearly erroneous, that is if they are supported by substantial evidence, and then to determine if the trial court has misapprehended the effect of the evidence and last to determine whether this Court is left with a firm conviction that a mistake has been made. We evaluate the legal interpretations of a court as to whether those interpretations are correct. Doting v. Trunk (1993), 259 Mont. 343, 856 P.2d 536.

Section 70-29-207, MCA, cited by Troglia provides:

Allotment of shares of land--improvements. In all cases the court shall direct the referees, in making partition of land, to allot the share of each of the parties owning an interest in the whole or in any part of the premises sought to be partitioned and to locate the share of each cotenant so as to embrace as far as practicable the improvements made by such cotenant upon the property, and the value of the improvements made by the tenants in common must be excluded from the valuation in making allotments, and the land must be valued without regard to such improvements, in case the same can be done without material injury to the rights and interest of the other tenants in common owning such land. (Emphasis added.)

The wording of the statute makes it applicable to cases in which the court partitions land. The court did not do that in the present case, and therefore, the court was not bound by the statute's directive to evaluate the land separately from the improvements upon it.

In its final order, the District Court issued the following findings:

2. The Court finds that the aggregate value of the property is $201,000. Allocation of the respective interests of the co-tenants must necessarily be based on that value. The Receiver's appraisal was of little help to the Court in view of 24 bids ranging from a low of $7,000 to the high of $201,000. The Court personally inspected the property, and from that inspection finds and agrees with the Plaintiff in his appraisal and his bid pursuant thereto.

. . . . .

4. The Court finds, based on Plaintiff's $201,000 appraisal, that Defendants' 25% interest in the land and improvements to be the sum of $24,450.

Twenty-four bids for the property were presented to the court. They showed a broad...