Golden Condor, Inc. v. Bell

739 P.2d 385, 112 Idaho 1086, 1987 Ida. LEXIS 329

• Court: Idaho Supreme Court
• Decided: June 17, 1987
• Docket: 16461
• Status: Published

Opinions

BAKES, Justice.

Pro se appellant, Velma Bell, appeals from a judgment of the district court which, after remand from the Court of Appeals, again quieted title to four unpatented mining claims in respondent, Golden Condor, Inc. Mrs. Bell contends that the district court’s decision on remand is not supported by the evidence in the record. For the reasons explained below, we disagree and affirm the district court’s judgment.

Golden Condor obtained title to four unpatented mining claims, denominated the Mountain Lion, Burton, E.R. Fields, and John Rogers, via quitclaim deed executed by Alfred Slawson, Sr., and Alfred T. Slaw-son, Jr., on February 29, 1972. Alfred Slawson, Jr., is the controlling shareholder and president of Golden Condor, Inc. The Slawsons had previously obtained title to the four unpatented mining claims by quitclaim deeds from James Schasre, Raymond Koziuk, Charles Yenny and Kalevi Jarvinen in 1971.¹ Schasre, Koziuk, Yenny and Jarvinen each held an undivided one-fourth interest in each of the mining claims. The location notice for each claim was recorded in the Shoshone County Recorder’s office. The alleged adverse claims of appellant consist of her seven mining claims denominated Ephraim Nos. 1 through 7, which she initially located in August, 1978, and relocated in January, 1979.

Respondent Golden Condor brought the initial quiet title action in April, 1979, asserting that appellant’s mining claims were located over Golden Condor’s four unpatented claims. At the trial, Golden Condor asserted its right to the four unpatented mining claims as the record owner of those claims via the quitclaim deeds executed by the Slawsons. Golden Condor contended that after obtaining title to the unpatented claims it had performed the annual assessment work for each claim as required by 30 U.S.C. § 28 in order to hold the claims, up to and including the assessment year ending September 1, 1978. By performing the annual assessment work for the year 1978, Golden Condor contended that the claims were not subject to relocation by appellant, and that Golden Condor was entitled to have title to the four claims quieted in itself subject only to the paramount title of the United States.

Appellant, on the other hand, contended that her seven Ephraim mining claims were valid locations, alleging that, at the time of her locations, the ground was public domain open to mineral entry because Golden Condor had failed to perform the assessment work for 1978. Appellant presented testimony that in June of 1978 Mr. Slawson traveled to Idaho from Arizona to visit his aunt in Murray, Idaho. At the time of that visit, Alfred Slawson, Jr., purportedly entered into negotiations with his cousin, Guy Bell, appellant’s husband, to sell Bell the unpatented mining claims in question. Apparently the two parties signed an agreement for the sale of the claims.² The sale was never consummated. Albert Slawson, Jr., testified that, while in Idaho during his June visit, he performed the annual assessment work on the claims and filed an affidavit with the county recorder on June 15, 1978. Appellant, on the other hand, presented testimony that, during the course of her husband’s negotiations with Slawson, Slawson allegedly stated that he had not done the assessment work on the claims for the assessment year 1978, but that he would nevertheless file an affidavit with the county recorder to protect the claims. Mr. Bell testified that he visited the area where the mining claims of Golden Condor were allegedly located shortly after Slawson returned to Arizona, around June 15,1978. Mr. Bell stated that upon visiting the location of the mining claims he found no evidence of a mineral location sufficient to meet the requirements of 30 U.S.C. § 28, and I.C. § 47-602. Based on their belief that Slawson held no valid mineral claims in the area where he purported that the four unpatented mining claims were located, appellant, Mrs. Bell, and her husband staked out and located the seven Ephraim claims in approximately the same area on July 31, 1978. Appellant filed location notices with the Shoshone County recorder on August 8, 1978, listing herself as locator. She relocated the claims on January 8, 1979, because of a late filing with the B.L.M. in October, 1978.

At the original trial, the district court, sitting without a jury, quieted title in Golden Condor on the grounds that the annual affidavits of “proof of labor” filed pursuant to I.C. § 47-606 by Golden Condor constituted prima facie evidence that the assessment work had in fact been done. The district court held that such evidence could not be rebutted by Guy Bell’s testimony that he did not see any evidence of assessment work on the claims or evidence of a valid mineral location after the date of the affidavit filing.

Appellant appealed and the case was assigned to the Court of Appeals which issued its decision on denial of petition for rehearing on February 24, 1984. Golden Condor, Inc. v. Bell, 106 Idaho 280, 678 P.2d 72 (1984). The Court of Appeals affirmed the trial court on all of the issues on appeal except the issue of the . assessment work. On that issue the Court of Appeals determined that the district court had given too much weight to the “prima facie” evidence language of I.C. § 47-606 and remanded the case for further findings limited to the single issue of whether or not Golden Condor had in fact performed the required assessment work for 1978. No petition for review was filed with this Court from the Court of Appeals decision. Accordingly, that decision is final and unreviewable on all issues except for the factual issue of whether the required assessment work had been done. See Angel v. Bullington, 330 U.S. 183, 189, 67 S.Ct. 657, 661, 91 L.Ed. 832 (1947) (“If a litigant chooses not to continue to assert his rights after an intermediate tribunal has decided against him, he has concluded his litigation as effectively as though he had proceeded through the highest tribunal available to him.”); Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 4433 (1981).

On remand, the district court conducted another hearing on the assessment work issue and received additional evidence from the parties. The district court then determined that the 1978 assessment work had in fact been performed by Golden Condor and re-entered judgment in favor of Golden Condor. Mrs. Bell appeals that decision, in essence contending that the district court’s decision is not supported by the evidence in the record. Mrs. Bell’s arguments on appeal are: (1) Golden Condor has failed to produce sufficient evidence to establish the geographical location of its mining claims and therefore failed to carry its burden of proof in the quiet title action; and (2) the only additional testimony presented on remand concerning whether the assessment work was performed in 1978 was inherently unreliable and should have been disregarded by the district court. We address each of these arguments in turn.

I

Appellant’s argument that Golden Condor failed to produce sufficient evidence to establish the geographical location of its mining claims amounts to an assertion that thé location notices for the four unpatented claims in question do not satisfy the requirements of I.C. § 47-602. That statute requires a location notice to provide a sufficient physical description of the claim so as to establish its geographical location. The Court of Appeals in its decision noted that appellant had not raised the argument at trial:³ “There was no issue as to the filing or sufficiency of the original location notices for these claims,” Golden Condor, Inc. v. Bell, 106 Idaho at 285, 678 P.2d at 77 (emphasis added).⁴ Therefore, the Court of Appeals declined to address the issue on appeal. The Court of Appeals action was in keeping with the established law in this jurisdiction that issues not presented to the trial court for its consideration will not be considered for the first time on appeal. Nycum v. Triangle Dairy Co., 109 Idaho 858, 712 P.2d 559 (1985); Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983) (parties are held to the theories on which a cause was tried in the lower court and may not raise additional or new theories on appeal).

Additionally, appellant did not petition this Court to review the Court of Appeals decision. The Court of Appeals limited the remand to the sole issue of whether the 1978 assessment work had been performed. The district court on remand was thus precluded from considering any other issue. In short, appellant is precluded from raising any issue concerning the sufficiency of the location notices either on remand or now on appeal after remand.⁵

II

The sole issue which is properly beforé this Court for its determination is appellant’s contention that the district court erred in finding that the assessment work for 1978 had, in fact, been performed. The only additional evidence presented on remand concerning this issue was the testimony of Harold McKeehan.⁶ McKeehan testified that he worked for one and a half days in June, 1978 with Alfred Slawson, Jr., on some mines near Murray, Idaho. Appellant contends that McKeehan’s testimony is unreliable and should have been disregarded by the district court. Specifically, she argues that the testimony is inconsistent with Alfred Slawson, Jr.’s, testimony at the first trial that he worked alone on the mines in performing the annual assessment work in June, 1978. Appellant also argues that McKeehan’s description of the area where the work was performed is clearly inconsistent with the description of the mine sites given by Slawson.

The trial court sitting without a jury was responsible for resolving any inconsistencies in the evidence presented to it. We will not interfere with or attempt to second guess on appeal the trial court’s resolution of conflicting or inconsistent evidence absent a showing that the trial court’s findings are clearly erroneous. I.R.C.P. 52(a); Pointner v. Johnson, 107 Idaho 1014, 1018, 695 P.2d 399, 403 (1985) (“The credibility and weight to be given evidence is in the province of the trier of fact, and the findings of fact by the trial judge will not be set aside unless clearly erroneous.”) Such a showing has not been made in the present case. In the first instance, we have no way of reviewing the testimony given. Appellant has failed to provide us with a verbatim transcript of the proceedings held on remand. Secondly, even assuming, arguendo that Mr. McKeehan’s testimony was so inherently improbable that it should have been disregarded, the trial court still had before it the testimony of Alfred Slawson, Jr., and the “Proof of Labor” affidavit for 1978. The trial court could have chosen to resolve the issue of the 1978 assessment work in favor of respondent based on this evidence alone even in the face of the contradictory testimony of appellant’s witness, Guy Bell. The district court, after observing the witness’s demeanor, may well have decided that the more credible testimony was that of Mr. Slawson. Again, absent a showing that the district court’s resolution of the conflict between Mr. Slawson’s and Mr. Bell’s testimony in favor of respondent was clearly erroneous, we will not disturb that judgment on appeal.

The judgment of the district court on remand is affirmed. Costs to respondent. No attorney fees.

SHEPARD, C.J., and DONALDSON and HUNTLEY, JJ., concur.

1 . The quitclaim deeds from Schasre, et al., to the Slawsons and from the Slawsons to Golden Condor are not in the record in this appeal, but were admitted in evidence at the first trial.

2 . Testimony at the first trial indicates that the parties did execute a written agreement for the sale of the claims. However, the copy of the signed agreement offered into evidence by appellant was rejected on the grounds that the original of the written agreement was required under the best evidence rule. Bell refused to produce the original agreement.

3 . Appellant first raised this line of argument in her reply brief to the Court of Appeals. At page 4 of her reply brief appellant made the following assertion:

“The question before the Court is a Quiet Title Action against me, the defendant. The plaintiffs never proved where the mining claims they claimed to own were located." (Emphasis added.)

Appellant continues on in her reply brief asking the court to examine certain exhibits attached to her brief, the majority of which were not introduced in evidence at the first trial and therefore were not properly before the Court of Appeals for its consideration. Based on this additional evidence outside the record on appeal, Mrs. Bell for the first time asserted that the location notices were insufficient to determine the geographical location of the four unpatented claims in issue.

4 . Our own review of the record on appeal from the first trial, which is included in the record on this appeal, confirms the Court of Appeals observation. Though appellant questioned Alfred Slawson, Jr., at trial concerning the geographical location of the four claims, she never contested the answer given by Slawson or attempted to introduce any evidence to contradict Slaw-son’s response that the claims were located "one mile west of Murray, Idaho.”

5 . In all likelihood this result has come about due to appellant's lack of understanding of the procedural rules of law. Nevertheless, the failure to abide by such rules may not "be excused simply because [appellant was] appearing pro se and may not have been aware of the rule[s].” Scafco Boise, Inc. v. Rigby, 98 Idaho 432, 434, 566 P.2d 381, 383 (1977). Pro se litigants are held to the same standards and rules as those represented by an attorney. State v. Sima, 98 Idaho 643, 570 P.2d 1333 (1977).

6 . The record in the present case does not contain a transcript of the testimony given by Mr. McKeehan. Consequently, we must rely on the minutes of the trial court for information concerning the content of said testimony.