Submitted on Briefs: March 22, 2017
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DV 11-746(A)
Honorable Robert B. Allison, Presiding Judge
Appellant: Sean S. Frampton, Johnna J. Preble, Morrison &
Frampton, PLLP, Whitefish, Montana
Appellees: George B. Best, Kira I. Evans, Best & Westover
Law Office, Kalispell, Montana (for Shinn/Rothschild) Judah
M. Gersh, Viscomi & Gersh, PLLP, Whitefish, Montana (for
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Whitefish Credit Union (WCU) appeals from the District
Court's Findings of Fact, Conclusions of Law, and Order
that determined the value of foreclosed property for purposes
of determining WCU's entitlement to a deficiency judgment
against the above-named Defendants/Appellees.
The factual background of this matter, including the
foreclosure of Appellees' interest in the Patrick Creek
property and WCU's request for a deficiency judgment, is
fully set forth in our opinion in Whitefish Credit Union
v. Prindiville, 2015 MT 328, 381 Mont. 443, 362 P.3d 53.
In summary, Appellees defaulted on their notes to WCU, owing
approximately $1.9 million. WCU foreclosed on the secured
property, which was sold at a sheriff's sale for $1.1
million, with WCU as the purchaser. WCU sought a deficiency
judgment, but the District Court, after conducting a hearing
and considering the evidence, determined the value of the
Patrick Creek property to be approximately $2.4 million, and
that WCU was not entitled to a deficiency judgment against
WCU appealed. This Court determined that the District Court
had not abused its discretion by proceeding in equity to
determine the value of the property for purposes of entering
a deficiency judgment, but that "evidentiary errors
clearly affected the outcome of the proceeding to the
prejudice of WCU and . . . a remand for further proceedings
and application of the proper standards is necessary."
Whitefish Credit Union, ¶ 33. On remand, the
District Court conducted a new hearing and received exhibits
and testimony. The District Court averaged the appraisals of
the parties' respective real estate appraisers and
determined the value of the property to be $1.65 million,
entitling WCU to a deficiency judgment of $190, 673.89, with
attorney fees and costs of $36, 088.50, and statutory
interest. WCU appeals.
WCU argues that the appraisal submitted by Appellees'
appraiser lacked credibility because it relied upon sales
that were not comparable. It further argues that the District
Court erred by failing to recognize deficits in the
appraisal's analysis of "highest and best use"
of the property, and by reasoning that an earlier appraisal
commissioned by WCU for its purchase of the property at
sheriff's sale was subject to negative value depressing
effects of foreclosure sales, when those effects had already
been considered by the appraiser. WCU asks this Court to
address and apparently set standards for "the
credibility of appraisals." As relief, WCU requests that
this Court reject Appellees' appraisal, conclude that
they failed to meet their burden of proving the value of the
property, and order that a deficiency judgment in the amount
of $740, 673.89 be entered.
"This Court will affirm the factual findings of a
district court sitting without a jury unless those findings
are clearly erroneous." Jacobson v. Bayview Loan
Servicing, LLC, 2016 MT 101, ¶ 19, 383 Mont. 257,
371 P.3d 397 (citation omitted). "A district court's
findings are clearly erroneous if they are not supported by
substantial evidence, if the district court has
misapprehended the effect of the evidence, or if a review of
the record leaves this Court with the definite and firm
conviction that a mistake has been committed."
Jacobsen, ¶ 19 (citation omitted).
"Evidentiary issues, including rulings on the
admissibility of expert testimony, are reviewed for abuse of
discretion." Whitefish Credit Union, ¶ 10
(citation omitted). "The credibility of witnesses and
the weight to be given to their testimony are determined by
the trier of fact . . . ." State v. Trujillo,
2008 MT 101, ¶ 8, 342 Mont. 319, 180 P.3d 1153 (citation
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the District Court's findings of fact are not
clearly erroneous and the court did not abuse its discretion
in its evidentiary rulings, including matters of credibility
of the appraisals.
concur: MIKE McGRATH, MICHAEL E WHEAT, DIRK M. ...