No. 94-187
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
JERRY SWENSON,
Plaintiff and Appellant, NGV I- 1994
v.
GARY DeCOCK and LELA DeCOCK,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James J. Screnar, Angel, Screnar, Coil & Bartlett,
Bozeman, Montana
For Respondent:
William A. Schreiber, Belgrade, Montana
Submitted on Briefs: September 22, 1994
Decided: November 1, 1994
Filed:
clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Jerry Swenson appeals the decision of the Eighteenth Judicial
District Court, Gallatin County, in favor of Gary and Lela DeCock
in this landlord-tenant dispute. We affirm.
As reframed by this Court, the issues are:
1. Did the District Court err in finding that the lease
between Swenson (landlord) and the DeCocks (tenants') was not
terminated?
2. Did the District Court err in finding that the DeCocks
were not responsible for damage to a water hydrant?
3. Did the District Court err in awarding attorney fees to
the DeCocks rather than to Swenson?
The DeCocks leased a lot in a mobile home park owned by
Swenson. The DeCocks paid the agreed rent from May through
November, 1992; however, their payments were late in May, June,
July and November of 1992. On March 9, 1993, Swenson served the
DeCocks with notice to pay the late charges incurred due to these
late payments within fifteen days or surrender possession of the
mobile home lot. The demand was for payment of late charges,
repair costs for a damaged water hydrant, and other unspecified
damages totaling $374. The DeCocks failed to respond within
fifteen days and Swenson instituted this action to recover the late
charges and repair costs and to evict the DeCocks from the mobile
home park.
The mobile home park rules, which are incorporated into the
parties' agreement by the lease instrument, list the late fee as $5
2
per month. Also, Gary and Lela DeCock testif ied that they be lieved
the late fee to be only $5 per month. The District Court found
that the DeCocks did not owe $374. The court found that the late
fee was $5 per month and the DeCocks had paid late on four months.
The court found that the DeCocks owed a total of $20 in late fees
and were not responsible for the costs of the hydrant repair. We
will not disturb the District Court's findings if they are
supported by substantial credible evidence. Mehl v. Mehl (1990),
241 Mont. 310, 786 P.2d 1173. We conclude that the District
Court's finding that the DeCocks owed only $20 is supported by
substantial credible evidence.
Section 70-24-422(2), MCA, allows a landlord to evict a mobile
home tenant by providing fifteen-day notice after a tenant fails to
pay rent. However, a landlord must give correct notice to evict a
tenant pursuant to this statute. When Swenson served the DeCocks
with notice, the DeCocks' rent payments were current and they
merely owed $20 in late fees. Demanding $374, nearly twenty times
what was actually owed, did not constitute proper or correct
notice. Thus, the fifteen-day period did not begin to run. We
conclude the District Court properly quashed the eviction and
properly determined that the tenancy was not terminated.
Swenson also claims that the District Court erred in finding
that the DeCocks were not responsible for damage to the water
hydrant. The court's findings must be based on substantial
credible evidence. Mehl
-I 786 P.2d at 1175. Gary DeCock testified
that the hydrant leaked when his family moved their mobile home
3
onto the lot. His two daughters, April and Brenda DeCock,
testified that they did not know how the hydrant became plugged and
denied making any admissions to Swenson concerning how the hydrant
became plugged. Swenson testified that while the hydrant was
located in the DeCocks' front yard, the hydrant's plumbing was not
connected to their mobile home unit. We conclude that the District
Court's decision that the DeCocks were not responsible for the
damage to the hydrant is supported by substantial credible
evidence.
Section 70-24-442, MCA, allows the District Court to award
reasonable attorney fees and costs to the prevailing party in a
rental agreement dispute. Based on our decision above, the DeCocks
were the prevailing party. We conclude the District Court did not
err in awarding attorney fees to the DeCocks rather than to
Swenson.
We affirm the decision of the District Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to the State Reporter and West Publishing Company.
Chief Justice
we concur:
November 1, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
James .I. Screnar
ANGEL, SC,RENAR, COIL & BARTLETT
125 West MendenhaIl
Bozeman, MT 59715
William A. Scheibner
Attorney at Law
5 North Broadway
Belgrade, MT 59714
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA