IN THE SUPREME COURT OF THE STATE OF MONTANA
JACK C. HOLLOWAY,
Plaintiff and Appellant,
-vsUNIVERSITY OF MONTANA,
Defendant and Respondent.
District Court of the Fourth Judicial District,
Honorable Edward Dussault, Judge presiding.
Counsel of Record:
Milodragovich, Dale & Dye, Missoula, Montana
Harold Dye argued, Missoula, Montana
For Respondent :
George L. Mitchell argued, Missoula, Montana
June 9, 1978
Mr. Justice John C. Sheehy delivered the Opinion of the
Appeal from a judgment against appellant Jack C.
Holloway in the Fourth Judicial District Court, Missoula
Holloway sought a declaratory judgment that he was
entitled to a Masters of Business Administration degree from
the University of Montana.
He alleged his candidacy for the
degree and that the University refused it for the sole
reason he had failed to obtain a grade of "C" or better in a
course entitled, "BA650, Quantitative Methods". A nonjury
trial was held in District Court December 6, 1976. The sole
issue was whether Holloway's graduate student advisor had
orally waived the Business School requirement that he obtain
a "C" or better grade in Quantitative Methods described as a
The District Court denied Holloway's request
for a declaratory judgment, adopting in full the University's
proposed findings of fact and conclusions of law and rejecting
Holloway's motion for additional findings.
During the academic years 1966-67 and 1967-68, Holloway's
graduate student advisor was Dr. Jack Kempner, a professor
in the School of Business.
in Quantitative Methods.
concerning his situation.
Holloway received a grade of "Dl'
He thereupon approached Dr. Kempner
The grade adversely affected
Holloway's academic record in two ways.
It dropped his grade
point average below the required 3.0 (on a 4.0 scale) and the
grade did not meet the requirement that a candidate for a
graduate degree must receive a "C" or better for the course
to count toward his master's degree.
Holloway testified that Dr. Kempner had told him Kempner
was of the opinion that all that was required was a 3.0 average.
Appellant subsequently took four other courses at the
University and succeeded in raising his average to the required
He did not repeat the Quantitative Methods course.
completion of a professional paper appellant made application
for his degree in 1973.
He was informed by the Dean of the
Business School that his "D" grade in Quantitative Methods
could not be counted toward the degree and the course would
have to be retaken.
Further, he could take an equivalent
course in the San Francisco area where he was then residing,
which course the University would recognize.
Dr. Kempner, who testified at the trial, recognized
Holloway but had no recollection of ever having told Holloway
he would not have to retake the course in Quantitative
Methods. However, Kempner further testified he had never
waived any "six hundred core course for any MBA student",
and in his recollection no student had ever received a
waiver of the Quantitative Methods course.
Considerable testimony was heard concerning the University's policy on granting a waiver of a required course
and the "unwritten" nature of that policy.
The issues presented on appeal are two-fold:
Is Holloway's testimony about the waiver granted to
him uncontroverted as a matter of law?
Was the District Court's finding of fact, simply stating
Dr. Kempner had not granted a waiver to Holloway, sufficient
as an ultimate fact?
Holloway contends the evidence was insufficient to
support the judgment because he positively and unequivocally
testified that an oral waiver had been granted him by Dr.
Kempner and because Dr. Kempner's testimony that he did not
recall any conversations failed to directly contradict
General rules are given in support
of this contention:
"The rule that the trial judge may not disregard
uncontroverted credible evidence is fundamental."
In Re Minder's Estate (19541, 128 Mont. 1, 270
P.2d 404; Higby v. Hooper (1950), 124 Mont. 331,
221 P.2d 1043; State ex rel. Nagle v. Naughton
(1936), 103 Mont. 306, 63 P.2d 123; Haddox v.
Northern Pacific R. Co. (1911), 43 Mont. 8,
113 P. 1119."
' * * * the testimony of a witness that he
does not remember whether a certain event
or conversation took place does not
contradict positive testimony that such
event or conversation did take place. (citing
Bender v. Roundup Mining Co. (1960),
138 Mont. 306, 356 P.2d 469.
Holloway correctly states the general rule, but falls
short of sustaining his contention for two reasons.
considerably more goes into a trial judge's examination of
the evidence than Holloway contends.
Second, a trial judge
is not bound to find in favor of a party simply because one
of his witness' testimony is not directly controverted.
evidence in its entirety forms the basis of the Court's
In O'Sullivan v. Simpson, et al. (1949), 123 Mont. 314,
212 P.2d 435, this Court, citing considerable authority,
examined the many qua-lifications and extensions to the
general rule that a trial court cannot disregard uncontroverted
credible evidence. To summarize:
statements may be so
inherently improbable the Court is induced to disregard
Testimony may be contradicted by other facts.
may be so many omissions in the testimony that the witness1
whole story is discredited. The witness' manner of testifying,
his appearance and demeanor may be considered.
circumstances may cast suspicion upon the narration of a
Finally, the interest of any witness in
the result of the trial or any bias he might have may properly
We find the record supports the trial court's decision
on this point.
For example, the University's requirements for
a Masters of Business Administration degree were spelled out in
Dr. Kempner testified as to the Business School's
standard procedure for handling requests for waivers, and
that he did not forget to use it.
Dr. Kempner also testified
that "six hundred level" graduate courses, specifically
Quantitative Methods, were never waived, and that he had
never personally waived a core course.
When coupled with
the intangible factors a trial judge considers in making a
decision, the considerable record established in this case
would make it unreasonable to conclude the judgment was
unsupported by the evidence.
Holloway specifies error in that the District Court's
single finding of fact on the contested issue was insufficient
to support the judgment, and additional findings, as requested
by appellant, should have been made.
The applicable finding
of fact states:
"Dr. Jack Kempner, Plaintiff's graduate student
advisor, did not grant Plaintiff a waiver of
the required core course of Business Administration 650, Quantitative Methods."
It is contended that specific findings on appellant's
credibility and the nature and extent of the authority
possessed by Dr. Kempner should have been made.
As to the
latter, the University admitted in its answer to appellant's
Interrogatory No. 10 that Dr. Kempner had at least apparent
authority to grant the waiver.
Therefore, this was not a
material issue requiring a specific finding.
Rule 52(a), M.R.Civ.P.,
"in all actions tried upon the facts without a jury or with
an advisory jury, the Court shall find the facts specially
and shall state separately its conclusions of law thereon."
Since the adoption of Rule 52(a) in Montana, the sufficiency
of findings of fact has been considered only briefly.
Mondakota Gas Co. v. Becker (1968), 151 Mont. 513, 445 P.2d
745, this Court said:
"We think it is quite evident that a 'finding
of fact' will vary from case to case. As
defined in 53 Am. Jur. Trials, Section 1131,
page 786: 'Findings of fact may be defined
as the written statement of the ultimate
facts as found by the court, signed by the
court and filed therein, and essential to
support the decision and judgment rendered
Despite the infrequency with which this Court has dealt
with the sufficiency of findings of fact, neighboring
jurisdictions (that have adopted rules identical to Rule
52(a)) have dealt with the issue on numerous occasions.
"The trial court's function in nonjury cases
is to find ultimate facts from conflicting
evidence; and if these findings are sustained
by competent, substantial, although conflicting
evidence, such will not be disturbed on appeal."
Hafer v. Horn (1973), 95 Idaho 621, 515 P.2d
"With these principles in mind we turn to the
finding in question and note, first, the
that findings must state ultimate
facts; they should not relate evidentiary facts
relied upon by the court to reach the ultimate
facts." Seeley v. Combs (1966), 52 Gal-Rptr.
578, 65 C.2d 127, 416 P.2d 810.
"In regard to the matter of the sufficiency
of findings of fact, a substantial compliance
with Rule 52, Utah Rules of Civ.P., is
sufficient and findings of fact and conclusions
of law will support a judgment though they are
very general, where they in most respects
follow the allegation of the pleadings. Findings
should be limited to the ultimate facts and if
they ascertain ultimate facts and sufficiently
conform to the pleadings and the evidence to
support the judgment, they will be regarded as
sufficient, though not as complete as might
be desired." Pearson v. Pearson (Utah 1977),
561 P.2d 1080.
In the words of counsel for the appellant, "the case
proceeded to trial on the basis of the single ultimate issue
of whether a waiver was given by Dr. Kempner in the manner
Holloway's credibility was not a material issue
and no finding of fact was required concerning his credibility
simpl:y because Holloway speculates it was considered in the
trial judge's decision.
The District Court made its finding
of fact on the material issue alleged in the pleadings.
The record supports that "ultimate fact".
We have held (Mondakota Gas Co. v. Becker, supra) and
now hold, in line with what we find other courts hold, that
Rule 52(a) M.R.Civ.P.,
which obliges a trial court without a
jury to "find the facts specially," requires findings of
ultimate facts and not evidentiary facts.
Sometimes (and this
case is an example) a situation exists where the ultimate
fact stated by the Court can also be read as a conclusion of
Thus, here it is a statement of ultimate fact that "Dr.
* * *
did not grant Plaintiff a waiver of the
required core course
* * * " , but
that same statement could
also be read as a conclusion of law.
The statement does
not thereby lose its character as a finding of ultimate fact,
The purpose of requiring "ultimate facts" in a court's
findings is three-fold:
(a) to aid the trial court in making
correct factual decisions and reasoned application of law to
facts; (b) to define for purposes of res judicata and estoppel
by judgment the issues there adjudicated; and (c) to aid
the appellate court.
Moore's Federal Practice, Vol. 5A,
p. 2666, Section 52.03 (3)(Rel. No. 9)
An ultimate fact is
one deduced by the Court from evidentiary facts, but evidentiary
facts should not be part of the Court's findings, because
evidentiary facts are incapable of becoming res judicata.
Abeles v. Wurdack (Mo. 1955) 285 S.W.2d 544, 548.
of the trial court in determining the ultimate facts from
the evidentiary facts is respected in Rule 52(a), and such
ultimate fact findings "shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity
of the trial court to judge of the credibility of the witnesses."
It is because the statement here involved could be read
both as a conclusion of law and as a finding of ultimate
fact that this case is distinguishable from those cases
relied on by Holloway as supporting his contention that
this particular finding is insufficient to support the
In this case the material fact issue is determined
by the trial court in an expression of ultimate fact.
more is required under Rule 52(a).
It is axiomatic that a District Court makes findings
only as to material issues of fact related to the cause of
action, Thompson v.Bantz (1959), 136 Mont. 210, 215, 346
P.2d 982, 985, and that a Court may not make findings upon
matter outside the material issues.
Drinkenberg (1910), 41 Mont. 538, 544, 111 P. 137, 139;
Dutro v. Kennedy (1889), 9 Mont. 101, 107, 22 P. 763, 764.
Here the credibility of Holloway was not a material issue
related to the cause of action; rather, it was only a factor
to be considered in weighing the evidence.
It is not a
necessary or sole implication that because the Court found
against the direct testimony of Holloway, that automatically
the Court found his testimony to be false.
It may be as
easily assumed that, in the light of the weight of other
evidence against the testimony of Holloway, that Holloway
could have been mistaken or he may have misunderstood the
tenor or meaning of what Dr. Kempner told him.
Holloway was mistaken, or else whether his testimony was
false, was not a material issue in the case on which the
Court had to make a finding.
The record afforded sufficient
evidence that no waiver had been granted without any finding
necessary as to the truth of Holloway's testimony.
For the reasons expressed, the judgment of the District
Court is affirmed.