09/15/2026
DA 25-0715
Case Number: DA 25-0715
IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 221N
BRYAN JON SHEPARD, Plaintiff and Appellee,
v.
BICKHAM PROPERTIES, LLC, AMY BICKHAM, JUSTIN BICKHAM and JESSICA BICKHAM,
Defendants and Appellants,
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 23-638 Honorable Mary Jane Knisely, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Nick LeTang, Passamani & LeTang, PLLC, Helena, Montana For Appellee:
Alex W. Hamman, Calton Hamman & Wolff, P.C., Billings, Montana
Submitted on Briefs: July 15, 2026 Decided: September 15, 2026
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 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 Montana Reports.
¶2 Defendants and Appellants Bickham Properties, LLC, (Bickham Properties), Amy Bickham (Amy), Justin Bickham (Justin), and Jessica Bickham (Jessica), (collectively Bickham Defendants), appeal the August 22, 2025 Findings of Fact, Conclusions of Law, and Order After Bench Trial issued by the Thirteenth Judicial District Court, Yellowstone County. The District Court’s Order found the contract at issue was procured through fraud as Bryan Shepard’s (Bryan) consent was not real or free under § 28-2-401(c), MCA, and thus concluded the contract and various instruments involved were rescinded.
¶3 We consider whether the District Court’s determination that there was actual fraud was supported by substantial credible evidence and whether it erred in failing to consider the affirmative defense of waiver, estoppel, or ratification.1 We affirm.
1 Bryan maintains that on January 30, 2026, when the Bickham Defendants filed their opening brief, they were required to file a trial transcript pursuant to M. R. App. P. 8. Rule 8 requires an appealing party to file a transcript when challenging a district court’s findings of fact as insufficient; otherwise, they are precluded from doing so. In re Marriage of Hodge, 2003 MT 146, ¶ 7, 316 Mont. 194, 69 P.3d 1192. This Court will, where possible and efficient, decide cases on the merits. See, e.g., Carter v. Badrock Rural Fire Dist., 2021 MT 280, ¶ 11, 406 Mont. 174, 512 P.3d 241; Whitefish Credit Union v. Sherman, 2012 MT 267, ¶ 7, 367 Mont. 103, 289 P.3d 174; Engelsberger v. Lake Cnty., 2007 MT 211, ¶ 8, 339 Mont. 22, 167 P.3d 902. The Bickham Defendants filed the trial transcript on April 3, 2026, one week after Bryan’s answer brief was filed. This Court has not received any requests for relief from Bryan now that the transcript has been filed and we will, accordingly, proceed to address the parties’ claims.
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¶4 Bryan owned and resided in a home at 4132 Frances Avenue in Billings, Montana. Bryan has lived at the Frances Avenue residence for his entire life. In January 2023, Bryan met Amy and quickly became involved in a romantic relationship. Within a couple of days, Amy moved into Bryan’s home and the two discussed marriage and having children. Amy and Bryan began referring to themselves as husband and wife, filled out a marriage license, and Bryan let Amy use his debit card. Bryan believed this to be a serious relationship.
¶5 In February 2023, Amy suggested that Bryan sell his house to her ex-husband, Justin. Justin periodically helped Amy financially, even when she started dating Bryan. Amy and Justin have two children together, and Justin has full custody. Amy took the lead on opening negotiations with Justin. Bryan did not directly negotiate or communicate with Justin about the terms of a real estate deal involving his house. As established through a series of social media messages, Amy expressed to Justin that, in exchange for Bryan’s house, she and Bryan wanted 50/50 custody of Amy and Justin’s two children, there would be no child support owed by either party, a payment of between $15,000 and $20,000 for hers and Bryan’s honeymoon, and a vehicle. Amy and Justin also negotiated whether Amy and Bryan could reside at a rental property Justin owns. Bryan would not have agreed to sell his house if he was not receiving a lease on one of Justin’s apartments. In contemplation of purchasing the Frances Avenue property, Justin formed Bickham Properties on February 20, 2023.
¶6 The parties agreed to meet at Bryan’s Frances Avenue home on February 21, 2023. When Bryan arrived, Justin and Jessica, along with notary Beth Goldsmith, were present. Justin presented Bryan with five documents (a Contract for Deed, Warranty Deed, Notice
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of Purchaser’s Interest, Limited Power of Attorney, and Assignment and Assumption of Lease to Bryan) and told Bryan he would have a rent-free lease in his name so that he would have a place to stay if he and Amy ever broke up. Bryan, feeling pressured, turned to Amy and conferred with her in another room. Amy was not a party to the contract and had not read or familiarized herself with the terms in the documents Bryan and Justin were to sign. Bryan asked Amy about reading the contract, and Amy told him they could trust Justin and to just sign it. So, Bryan did.
¶7 In the stipulated Pre-Trial Order, Bickham Properties agreed that Justin and Jessica were to give Bryan and Amy a GMC Yukon, $5,000 cash for their honeymoon, and reduced rent at a unit in Justin and Jessica’s residence at Avenue C in Billings in exchange for the residence. The move to Avenue C was arranged to take place on May 1, 2023. After the deal was completed, Justin and Jessica provided a 2003 GMC Yukon to Bryan. They did not, however, make payment of $5,000. Instead, they provided a 2007 Chrysler Town & Country (Kelley Blue Book value offered at trial of $2,900) as Amy wanted a car, rather than $5,000. Amy totaled the Chrysler Town & Country in a wreck shortly thereafter, and Amy and Bryan split the insurance proceeds. Justin never provided Bryan with a lease and the District Court specifically found that Justin misrepresented to Bryan that the terms of the real estate transaction would include a rent-free lease in Bryan’s name. Bryan remained in the Frances Avenue residence.
¶8 Bryan began asking Amy about the custody situation, which Amy avoided discussing. Given that Amy had negotiated everything, Bryan asked Amy to ask if Justin would give the house back if he returned the GMC Yukon and paid cash for the Chrysler
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Town & Country. As with the underlying transaction, he did not directly negotiate with Justin to offer to unwind the deal. Soon after, Bryan and Amy’s relationship fell apart. Amy threatened to evict Bryan from the Frances Avenue property, saying that he did not own it anymore, and there was no lease in Bryan’s name. At some point in 2023, Justin and Jessica went to the Frances Avenue property to clean the house, where they were met by a sign excluding them from the property. The house was in poor condition, and Bryan later changed his mind, allowing them on the property to clean.
¶9 Bryan sued Justin, Jessica, Amy, and Bickham Properties, alleging fraud in the inducement of the real estate transaction and seeking recission of the contract. A bench trial was held on February 15, 2024. At no point during the trial were any affirmative defenses raised.
¶10 Amy testified that she was present for the February 21, 2023 meeting. She testified that she did not believe Bryan agreed to sell his house for $5,000 and a 2003 GMC Yukon. She testified frankly that she had no interest in Bryan other than that he owned a house and Amy wanted to improve her living situation. Amy testified that she, Justin, and Jessica all made misrepresentations to Bryan to get him to sign the contract selling his house.
¶11 After weighing the evidence, the District Court found Justin credible when he testified that he never communicated any arrangement regarding custody of the children as part of the transaction with Bryan. However, the District Court did not find Justin’s explanation credible that the lease arrangement was a separate agreement or represented kindness on Justin’s part. The District Court found the reference to a lease agreement constituted a misrepresentation as to the terms of the real estate transaction.
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¶12 Given that the District Court addressed only the misrepresentation concerning the lease option, it was the only misrepresentation the District Court analyzed under the nine elements of fraud. After determining that the parole evidence rule did not apply, the District Court found by a preponderance of the evidence that actual fraud did occur and rescinded the contract. However, because Bryan had ample opportunity to read the documents, the District Court did not find clear and convincing evidence of fraud and therefore denied punitive damages.
¶13 The District Court ordered title to the Frances Avenue property be vested in Bryan, and divested Bickham Properties of any interest in the Frances Avenue property. The District Court also ordered Bryan to pay $7,300, which represented the value of what Bryan, as the rescinding party, received under the contract, as required by § 28-1-1713, MCA. The amount of $7,300 represented the combined value of the 2003 GMC Yukon and 2007 Chrysler Town & Country.
¶14 “We review the findings of fact in a civil bench trial to determine whether they are supported by substantial credible evidence. We review such evidence in a light most favorable to the prevailing party, and leave the credibility of witnesses and weight assigned to their testimony to the determination of the district court.” Only A Mile, LLP v. State, 2010 MT 99, ¶ 10, 356 Mont. 213, 233 P.3d 320 (citations omitted). We will affirm the factual findings of a district court sitting without a jury unless those findings are clearly erroneous. Pedersen v. Ziehl, 2013 MT 306, ¶ 10, 372 Mont. 223, 311 P.3d 765. We review a district court’s conclusions of law for correctness. Pedersen, ¶ 10. Substantial
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credible evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Blaine Cnty. v. Stricker, 2017 MT 80, ¶ 26, 387 Mont. 202, 394 P.3d 159.
¶15 Actual fraud is defined under § 28-2-405, MCA, as follows:
Actual fraud, within the meaning of this part, consists in any of the following acts committed by a party to the contract or with the party’s connivance with intent to deceive another party to the contract or to induce the other party to enter into the contract:
(1) the suggestion as a fact of that which is not true by one who does not believe it to be true;
(2) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though the person believes it to be true;
(3) the suppression of that which is true by one having knowledge or belief of the fact;
(4) a promise made without any intention of performing it; or (5) any other act fitted to deceive.
The District Court analyzed the evidence under the common law standard for fraud. Our common law sets forth nine elements which constitute a prima facie case of fraud: (1) a representation; (2) the falsity of the representation; (3) the materiality of the representation; (4) the speaker’s knowledge of the falsity of the representation or the speaker’s ignorance of its truth; (5) the speaker’s intent that the false representation should be relied upon; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the false representation; (8) the hearer’s right to rely on the false representation; and (9) the consequent and proximate injury caused by the reliance on the false representation. Franks v. Kindsfather, 2005 MT 51, ¶ 17, 326 Mont. 192, 108 P.3d 487. A preponderance of the evidence is necessary to establish the nine elements of fraud. Sandman v. Farmers Ins. Exch., 1998 MT 286, ¶ 47, 291 Mont. 456, 969 P.2d 277. Under the standard of review, we must consider whether there was substantial credible evidence available to the district
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court, in the light most favorable to the prevailing party, to support a finding that each of the nine elements of a case of fraud are present in the record. 1. A Representation
¶16 During the trial, both Amy and Bryan testified that Justin represented to Bryan that there would be a lease in his name as part of the transaction involving the Frances Avenue property, and that such lease would be rent-free. This was the evidence the District Court specifically noted in its analysis of this element and, in addition, there is Justin’s own admission that he spoke about a lease when handing Bryan the documents to sign. The District Court had substantial credible evidence that Justin made a representation. 2. Falsity of the Representation
¶17 The evidence showed that Justin, Jessica, and Bickham Properties intended to provide rental credits correlated to the fair market value of the Frances Avenue property. Justin testified as to the rental credits, rather than a rent-free lease, demonstrating intent not to follow through on that representation that a rent-free lease would be provided. Further, this conflicts with Justin’s testimony that the Frances Avenue transaction involved only an exchange of $5,000, a 2003 GMC Yukon, and no other terms. The District Court had substantial credible evidence that Justin’s representation to Bryan that he would receive a rent-free lease was false. 3. Materiality of the Representation
¶18 Bryan testified that he agreed to sell his house because he believed he would have a place to live rent-free afterward. Amy corroborated Bryan’s understanding. The District
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Court was required to weigh the evidence and there was substantial credible evidence that Justin’s representation was material to Bryan’s choice to sign the contract. 4. Speaker’s Knowledge of the Representation’s Falsity
¶19 Justin knew his representation regarding a rent-free lease was false because he never included a lease in the documents Bryan executed and there was no evidence Justin ever provided Bryan with a lease option. In a light most favorable to the prevailing party, the District Court had substantial credible evidence that Justin knew his representation to Bryan regarding a rent-free lease was false. 5. Speaker’s Intention that Representation be Acted Upon
¶20 The evidence establishes that Justin offered the lease option to Bryan to reduce his fears of where he would live after he sold his house and to provide assurance he would have a place to live if he and Amy broke up. In the context provided, the District Court had substantial credible evidence that Justin intended for Bryan to rely on Justin’s false representation. 6. Hearer’s Ignorance of the Representation’s Falsity
¶21 Bryan’s testimony suggested to the District Court he believed he could trust Justin, and that he was told to do so by Amy. Bryan testified that he made the decision to sign the contract, in part, because he believed he would receive a rent-free lease in exchange for the Frances Avenue property. Amy also testified she did not believe Bryan would sell his house without that condition, further suggesting Bryan’s ignorance of the representation’s falsity. The District Court had corroborating testimony from adverse parties. The District
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Court had substantial credible evidence that Bryan was ignorant of the falsity of Justin’s representation that Bryan would receive a rent-free lease in his name. 7. Hearer’s Reliance upon the Truth of the Representation
¶22 The District Court heard Bryan testify that he relied on Justin’s representation of a rent-free lease in making the decision to sign the contract. Appellants presented no evidence to the contrary. The District Court had substantial credible evidence that Bryan relied on Justin to be telling the truth that he would give Bryan a rent-free lease. 8. Hearer’s Right to Rely upon the Representation
¶23 Bryan had no reason to disbelieve Justin’s representation about the rent-free lease. Text exchanges between Amy and Justin were admitted into evidence and they demonstrated that there were substantial negotiations regarding a lease. Testimony and messages established that Amy told Bryan a favorable lease at one of Justin’s properties would be part of the deal. Bryan knew Amy was negotiating the terms of the deal, so Bryan had a reasonable basis for believing Justin when he referred to a rent-free lease upon handing the documents to Bryan to sign. The District Court had substantial credible evidence supporting Bryan’s right to rely upon Justin’s representation that he would receive a rent-free lease. 9. Hearer’s Damages
¶24 The testimony presented shows that Bryan’s reliance upon Justin’s oral promise of a rent-free lease resulted in him signing a Contract for Deed in which Bryan conveyed his house to Bickham Properties for $5,000 and a 20-year-old used car. The District Court accepted the $110,000 valuation suggested in the discovery responses from Bickham
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Properties and testified to by Justin at trial. Accordingly, Bryan was injured financially in the amount of approximately $105,000, less the value of the 2003 GMC Yukon. The District Court had substantial credible evidence that Bryan suffered $105,000 in damages because of his reliance on Justin’s representation that Bryan would receive a rent-free lease to get Bryan to sign the contract.
¶25 Justin argues that there was no fraud, but rather a disagreement as to the scope of the real estate transaction. Justin’s primary authority for this comes not from case law, or any of the District Court’s findings of fact, but from Justin’s testimony and continued disagreement that the lease and the real estate transaction were linked. It is not for this Court to reweigh the evidence which the District Court was better situated to evaluate. The time for weighing the strength of Justin’s testimony has long since passed and it would not be appropriate under the standard of review.
¶26 The Bickham Defendants also argue there was confusion as to when a “meeting of the minds” occurred. It is unclear why the Bickham Defendants would raise this contention, since, if there was confusion as to when a meeting of the minds occurred, then in the light most favorable to the prevailing party, there was no meeting of the minds. If there was no meeting of the minds, there would be no enforceable agreement that would vest in them an interest in the Frances Avenue property. See, e.g., Jarussi v. Sandra L. Farber Tr., 2019 MT 181, ¶ 17, 396 Mont. 488, 445 P.3d 1226; Glob. Client Sols., LLC v. Ossello, 2016 MT 50, ¶ 23, 382 Mont. 345, 367 P.3d 361; Keesun Partners v. Ferdig Oil Co., 249 Mont. 331, 816 P.2d 417 (1991); Hilbig v. Cent. Glass Co., 238 Mont. 375,
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777 P.2d 1296 (1989). The Bickham Defendants also cite no authority for this argument to help instruct the Court in this matter, and it will not be considered further.
¶27 Finally, Justin contends that the evidence presented at trial demonstrates a disagreement over the terms of the transaction, not a case of fraud. As noted in the foregoing sections, the District Court was presented with substantial credible evidence to support a conclusion that Bryan met his burden for all nine elements of a fraud case. The Bickham Defendants present no argument that a reasonable mind would disagree with the District Court’s conclusions on those elements. The Bickham Defendants cite no authority to demonstrate that the facts the District Court found do not support a finding of fraud.
¶28 Therefore, the District Court did not err when it concluded that Bryan’s consent was fraudulently induced and, consequently, Bryan was entitled to rescind the contract.
¶29 We turn now to whether the District Court erred, as a matter of law, when it did not consider and analyze evidence of affirmative defenses. Generally, a reviewing court can consider only those issues that are properly preserved for its review. State v. Akers, 2017 MT 311, ¶ 12, 389 Mont. 531, 408 P.3d 142 (quotations and citations omitted). To preserve a claim or objection for appeal, an appellant must first raise that specific claim or objection in the lower court. Akers, ¶ 12. The basis for the general rule is that it is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Akers, ¶ 12.
¶30 The Bickham Defendants argue that the District Court erred, as a matter of law, when it did not analyze evidence of any affirmative defenses in its Findings of Fact, Conclusions of Law, and Order after Bench Trial. They contend that, because they pled
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waiver, acquiescence, estoppel, and set off in their Answer to Amended Complaint, the District Court was required to analyze whether affirmative defenses exist if fraud is found. They maintain that the District Court was required to consider their affirmative defenses based on their pleadings, a liberal construction of pre-trial contentions, and four facts they argue were established at trial: (1) Bryan did not move to rescind this transaction between February 21, 2023, and June of 2023 when he brought his complaint, and he took no actions which otherwise disavow the transaction, even when the opportunity presented itself; (2) Bryan agreed to amend the February 21, 2023 transaction, wherein he accepted the Chrysler Town & Country in lieu of $5,000 cash; (3) when Amy crashed the Chrysler vehicle, Bryan kept the insurance proceeds rather than disavowing such; and (4) Bryan allowed Appellant to clean the property rather than excluding Appellant from the property.
¶31 To support this argument, the Bickham Defendants draw on Akers. Akers is a criminal case, where the justice court committed reversible error by not instructing the jury that the State carried the burden of proving Akers’ actions were not a justifiable use of force, after the defense presented evidence of the affirmative defense sufficient to place it at issue. Akers, ¶¶ 2, 11. The Bickham Defendants incorrectly draw on Akers for two reasons. First, Akers’ reversal centered around a judge’s failure to give the statutorily required instructions regarding affirmative defenses. Akers, ¶ 2. Second, despite neither Akers nor the State requesting a jury instruction as to affirmative defenses, Akers actually argued his affirmative defense at trial. Akers, ¶ 16.
¶32 Here, however, the record of the bench trial shows no indication that the Bickham Defendants preserved their claims of waiver or equitable estoppel. While the affirmative
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defenses may have been raised in pleading, and contentions in a pre-trial order are supposed to be construed liberally to permit issues embraced within their language, this Court is not convinced that the existence of scant facts the Bickham Defendants point to on appeal, but never actually argued, constitutes raising them at trial. If they were never raised during the bench trial, then they are waived for purposes of appeal. Hansen Trust v. Ward, 2015 MT 131, ¶ 19, 379 Mont. 161, 349 P.3d 500.
¶33 We conclude that the District Court’s findings were supported by substantial credible evidence and the District Court did not err when it made a finding that Justin fraudulently induced Bryan’s consent to contract. We conclude any affirmative defenses were waived when they were not raised during the bench trial.
¶34 Affirmed.
¶35 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 case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court’s findings of fact are not clearly erroneous. The District Court’s interpretation and application of the law were correct.
/S/ LAURIE McKINNON
We Concur:
/S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ INGRID GUSTAFSON
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Chief Justice Cory J. Swanson, concurring.
¶36 I concur. I write separately only to reinforce the Court’s rejection of Appellants’ argument regarding a so-called “meeting of the minds.” Opinion, ¶ 26. The words of Professor Scott Burnham are ringing in my ears, that there is no such thing as a “meeting of the minds” in contract formation. “Meeting of the minds? Nonsense!” Scott J. Burnham, Contract Law for Dummies 26 (2012). Rather, we analyze contract formation according to four elements: (1) identifiable parties capable of contracting; (2) their consent; (3) a lawful object; and (4) sufficient cause or consideration. Section 28-2-102, MCA.
¶37 Appellants appear to be misusing the “meeting of the minds” argument with regard to the element of consent. How can jurists or a jury determine whether the contracting parties had a metaphysical experience wherein their minds met somewhere in the spirit realm? We cannot. “Consent is not determined by the parties’ subjective, undisclosed intent, but by their objective manifestations of consent . . . .” Chipman v. Nw. Healthcare Corp., 2014 MT 15, ¶ 15, 373 Mont. 360, 317 P.3d 182 (emphasis added) (citation omitted).
/S/ CORY J. SWANSON