FIRS HOLDING CO v LEMLEY
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NO. 95-214 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1995 FIRS HOLDING CO., INC., a Montana Corporation; and TERRY L. MCKAY, Plaintiffs and Appellants, v. MICHAEL LEMLEY; RX ENTERPRISES, INC., a Montana Corporation, Defendant APPEAL FROM: and Respondent. /qjG 2 2 1995 *$ p $i, ,/Aj (~...&.>,..48bLE l: t Ogli.RM,0~ ~~~p!i&vi; GauH~ gl#Tt? OP WNTnNP District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Bars, Judge presiding. COUNSEL OF RECORD: For Appellant: Oliver, James R. Graves, Ingrid Gustafson; Toennis & Gustafson, Billings, Montana Graves, For Respondent: Mark D. Parker; Parker Submitted Filed: Law Firm, Billings, on Briefs: Decided: July Montana 27, August 1995 22, 1995 Justice W. William In this District first Leaphart appeal, Court delivered FIRS Holding Judge who did instance the Opinion Co., not preside may amend the Findings of a transcript Inc., questions over of Fact of the proceedings. of the Court the whether trial without in a the the benefit We reverse. BACKGROUND FIRS Holding Lemley and Terry alleging, capitalization inter of alia, The suit without and Conclusions of filed filed a Motion Relief from Judgment. G. Bars Judicial District, January 3, 1995, for order the been amending date of M.R.Civ.P., Judge Barz's trial over a New Trial FIRS Holding before motion for failure which Judge William 5, his Findings 1994 with 1, 1995, Judge Speare retired and Judge, over a response this Thirteenth matter. to Lemley's the order, Holding On motion 1, 1995, Judge Bars entered record then of the filed trial a an As of December 15, 1994 Judgment. to review the and filed relief J. On December 21, 1994, him as District Judge Speare's the and to Amend Findings On February FIRS to which had been formed by and assumed jurisdiction transcribed. regard Law on December succeeded Judge Bars's Michael Judge Speare issued On January to Amend the Findings. against with on December 15, 1994. Lemley Judge Diane suit faith an entity a jury. Judgment being this was tried sitting Fact bad of FIRS Holding, McKay and Lemley. Speare, McKay filed had not Rule 59 (g) , from the Amended Judgment based upon a transcript Judge Speare had presided. 2 of the May 10, Lemley 1994, responded to FIRS Holding's motion. on the within motion M.R.Civ.P., the from that The District Court, 45 days and, motion thus, however, pursuant was deemed denied. did not rule to Rule 59(g), denial. FIRS Holding appeals ISSUE PRESENTED May a District original Court bench trial the benefit Judge issue who did amended findings of a transcript not preside of fact of the original over without the having proceeding? DISCUSSION When Judge Barz January 2, 1995, of assumed was pending Fact responded that, Lemley's since transcript on the pending failure to order stage, court. on January Nonetheless, fact transcribed 3, 1995 and failed the benefit the original proceedings and intelligent that proceeded and McKay to point over the original court's the in order brought attention record had to rule on the motion We hold that court and who has not read a transcript finder, out trial, a for her Lemley's at either 3 not that basis in the first been without this judge who has not presided does not have the necessary fact Findings of the testimony. A district bench trial the on appeal would have been obviated. remains of a transcript error. to of this and the court Judge FIRS Holding Had FIRS Holding a transcript the District would be necessary motion. the necessity of to amend Judge Speare's the of the proceedings reversible office Judge Bars had not presided to rule early motion before to the motion the is over of those to act as an advised instance or in an amendatory fashion. relevant parties have stipulated facts, a judge who is by another judge, and controlling findings of fact entered to amend without trial Unless having the first reviewed asked to the amend act on the motion the relevant portions of the transcript. In reviewing district whether Production Credit Ass'n P.2d 1285, 1281. erroneous, we first proceedings, Without finding(s) Findings the consider it is Lemley of Fact, proceedings the Reversed merits is it erroneous. 250 Mont. 320, are whether to party 322, supported District Court court of the or not the evidence. amendment to upon Lemley to order the by or misapprehend. whether the 820 are clearly the district by substantial who sought is incumbent that judge Court Interstate the findings to apprehend are supported so this In the absence of a transcript impossible the fact, the findings no evidence in question Since whether We then determine is a record, clearly to see if the evidence. there are of v. DeSaye (1991), look evidence. misapprehended finding findings In determining substantial the court determines of cannot to can the a transcript adequately of his motion. and remanded for proceedings opinion. 4 consistent with this
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