Silbermann et al v. Hermanns et al

Filing 69

ORDER granting 34 Motion for Partial Summary Judgment; granting 37 Motion for Summary Judgment; granting in part and denying in part 64 Motion; adopting 66 Findings and Recommendations. IT IS FURTHER ORDERED that the Silbermanns and Herman ns shall notify the Court by May 16, 2024, if they wish to be referred to a United States Magistrate Judge for the purposes of a settlement conference, or if they wish to waive their right to a jury trial and proceed to a bench trial. Signed by Judge Dana L. Christensen on 5/9/2024. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DANIEL SILBERMANN and
CHRISTY SILBERMANN,
vs.

CV 22–133–M–DLC

Plaintiffs,

ORDER

RICHARD HERMANNS,
HERMANNS FAMILY HOLDINGS
CORPORATION, NANETTE F.
WISE, KATHLEEN R. DODD, NEW
WEST INVESTMENTS, LLC D/B/A
KELLER WILLIAMS REALTY
NORTHWEST MONTANA and
DOES 1 through 20,
Defendants.
________________________________
RICHARD HERMANNS and
HERMANNS FAMILY HOLDINGS
CORPORATION,
Counterclaim Plaintiffs,
vs.
DANIEL SILBERMANN and
CHRISTY SILBERMANN,
Counterclaim Defendants.
United States Magistrate Judge Kathleen L. DeSoto entered Findings and
Recommendation in this matter on April 18, 2024. (Doc. 66.) For the reasons
herein, the Court adopts Judge DeSoto’s findings and recommendation in full.
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Because no parties objected, they are not entitled to de novo review. 28
U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003). Therefore, the Court reviews the Findings and Recommendation for clear
error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309,
1313 (9th Cir. 1981). Clear error exists if the Court is left with a “definite and firm
conviction that a mistake has been committed.” United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000).
Judge DeSoto found that Defendants and Counterclaim Plaintiffs—Richard
Hermanns and Hermanns Family Holdings Corporation (collectively, “Hermanns”)
are entitled to summary judgment as to Plaintiffs Daniel and Christy Silbermanns’
claims against Hermanns, as set forth in Counts I through VI of the First Amended
Complaint (Doc. 15), as well as Hermanns’ counterclaims for conversion and
breach of contract, Counts II and IV, respectively. (Doc. 66 at 10–12, 15.) Judge
DeSoto recommends that Hermanns’ remaining counterclaims—Counts I and III—
should proceed to trial. (Id. at 30.) Judge DeSoto also found that “[b]ecause
Exhibit 1 is central to [the Court’s] concerns” regarding “the accusation that local
counsel for [the] Silbermanns has committed fraud upon this Court,” “striking
Exhibit 1 from the record would be improper.” (Id. at 15.) As such, Judge DeSoto
recommends that the Silbermanns’ Motion to Strike Exhibit 1 be denied. (Id. at
30.) Finally, Judge DeSoto found that Defendants Nanette F. Wise, Kathleen R.
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Dodd, and New West Investments (“Realtors”) were entitled to summary judgment
as to all of the Silbermanns’ claims against them, as set forth in Counts VII
through XIV of the Amended Complaint. (Id. at 18–29.) Reviewing for clear
error, the Court finds none.
Accordingly, IT IS ORDERED that Judge DeSoto’s Findings and
Recommendation (Doc. 66) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Hermanns’ Motion for Partial Summary
Judgment (Doc. 34) is GRANTED. Hermanns are granted summary judgment as
to Counts I through VI of the Amended Complaint and Counterclaim Counts II and
IV. The parties will proceed to trial on Hermanns’ Counterclaim Counts I and III
and the issue of damages.
IT IS FURTHER ORDERED that the Silbermanns’ Motion to Withdraw
Exhibit in Opposition to Hermanns’ Motion for Partial Summary Judgment and
Confession of Hermanns’ Motion for Partial Summary Judgment (Doc. 64) is
GRANTED in part and DENIED in part. The Silbermans’ Motion is GRANTED
as to the Silbermanns’ liability for Hermanns’ counterclaims but Exhibit 1 will
remain in the record.
IT IS FURTHER ORDERED that Realtors’ Motion for Summary Judgment
(Doc. 37) is GRANTED. Realtors shall be awarded reasonable attorney fees.

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IT IS FURTHER ORDERED that the Silbermanns and Hermanns shall
notify the Court by May 16, 2024, if they wish to be referred to a United States
Magistrate Judge for the purposes of a settlement conference, or if they wish to
waive their right to a jury trial and proceed to a bench trial. The Court’s previous
scheduling order (Doc. 33) otherwise remains in full force and effect.
DATED this 9th day of May, 2024.

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