NO. 95-311
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
JERRY SWENSON,
Plaintiff and Appellant,
PAUL JANKE and ALICE JANKE, ekERK OF SUPREME CO&n?
&?A+E @E M&iut&rab ' .
~eqendant and Respondents.
s
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the Countv of Gallatin,
The Honorable Larry h. Moran, ~ u d g epresiding.
COUNSEL OF RECORD:
For Appellant:
James Screnar, Angel, Screnar, Coil,
Bartlett & Fay, Bozeman, Montana
For Respondent:
J. David Penwell, Attorney at Law,
Bozeman, Montana
Submitted on Briefs: November 30, 1995
~ecided: December 28, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiff, Jerry Swenson, filed a complaint in Gallatin
County Justice Court to terminate Paul and Alice Janke I s tenancy at
his mobile home park and to regain possession of the space they
occupied. Jankes alleged for their counterclaim that Swenson
failed to provide necessary services and attempted to evict them in
retaliation for a notice of problems they had sent him. Swenson's
claim was dismissed after he failed to appear, and by stipulation,
Jankes were awarded attorney fees. Swenson appealed to the
District Court for the Eighteenth Judicial District in Gallatin
County. After de novo consideration of the parties1 claims, the
District Court dismissed Swensonls claims and held that Swenson
failed to provide necessary services and that his attempt to evict
was in retaliation for Jankesl notice and for participation in a
tenants1 association. The District Court awarded Jankes three
months1 rent as damages, and awarded them their attorney fees.
Swenson appeals that decision. We affirm the judgment of the
District Court.
We restate the issues on appeal as follows:
1. Was the District Court's finding of retaliatory conduct
clearly erroneous?
2. Did the District Court err when it awarded damages equal
to three months1 rent pursuant to § 70-24-311,MCA?
3. Was Swenson entitled to terminate Jankesl tenancy without
cause pursuant to § 70-24-441,MCA?
4. Did the District Court abuse its discretion when it
awarded $4775 to Jankes for their attorney fees?
FACTUAL BACKGROUND
In February 1993, Swenson, the operator of Lexley Acres Mobile
Park in Belgrade, Montana, served Jankes with a "Notice to Quit and
Notice Terminating Tenancy" in an effort to evict them from the
mobile home pad they had rented from him on a month-to-month basis
since 1986.
Jankes, however, alleged that prior to receipt of the notice
they had endured various illegal conditions on the premises,
including an inadequate water supply, an overflowing garbage
receptacle, raw sewage underneath their mobile home and on the
ground adjacent to their mobile home, and a "burn pile" next to
their mobile home which created a smoky and unsafe condition.
On July 8, 1992, Jankes had notified Swenson of the above
conditions pursuant to 5 70-24-406, MCA. In the notice, they
stated that because of the conditions, Swenson was in violation of
5 70-24-303, MCA, which requires landlords to maintain their
premises. They also demanded that he remedy the problems within
fourteen days from the date of the notice, however, they allege
that he failed to do so.
In November 1992, Jankes joined a tenants association, and in
January 1993, Alice Janke, as a member of the tenants1 association
for Swenson's mobile home park, appeared before the legislature and
testified in support of an amendment to the Landlord and Tenant Act
which related to the operation of mobile home parks. The
amendment, which subsequently became law, limited the ability of
landlords to evict tenants.
On February 4, 1993, approximately two weeks after the hearing
which Alice Janke and Swenson attended, Swenson attempted to retake
possession of Jankesl space and terminate their tenancy. He served
a notice of termination followed by a complaint in Justice Court
after they failed to vacate. In his complaint, he alleged that
they were unlawfully in possession of the property they leased from
him.
Jankes counterclaimed and asserted that Swenson violated the
Landlord and Tenant Act when he failed to provide necessary
services and when he took retaliatory action. They requested
attorney fees and damages equal to the greater of three months1
rent or treble damages. They also requested dismissal of his
complaint.
In Justice Court, the parties stipulated that a judgment would
be entered against Swenson for Jankes' attorney fees in the amount
of $350, and that Swenson would be allowed a denovo appeal to the
District Court. Following the appeal to and a nonjury trial in the
District Court, that court dismissed Swensonls claims in their
entirety and held that Swenson failedto provide necessary services
in violation of Montana law and health department regulations and
that his action to terminate Jankes tenancy was in retaliation for
their notice of July 8, 1992, and for Alice Jankelsparticipation
in a tenants' association. The court awarded Jankes $540 in
damages--the equivalent of three months' rent--and attorney fees.
ISSUE 1
Was the District Court's finding of retaliatory conduct
clearly erroneous?
Whether a landlord has engaged in retaliatory conduct
prohibited by statute is a question of fact. Section 70-24-431,
MCA, commissioner's comments. The standard of review for the
District Court's findings of fact is whether they are clearly
,
erroneous. Rule 52 (a), M.R.Civ.P. ; Brown v. Tintinger (1990) 245 Mont.
The District Court found that Swenson's actions were
retaliatory because he initiated efforts to retake possession of
the property before he rectified the problems in Jankes' complaint.
The court therefore concluded that Swenson violated § 70-24-431,
MCA. On appeal, Swenson contends that the court's finding of
retaliation was clearly erroneous.
Section 70-24-431 , MCA, prohibits retaliatory conduct by a
(1)
landlord and provides that:
Except as provided in this section, a landlord may
not retaliate by increasing rent, decreasing services, or
by bringing or threatening to bring an action for
possession after the tenant:
(a) has complained of a violation applicable to the
premises materially affecting health and safety to a
governmental agency charged with responsibility for
enforcement of a building or housing code;
(b) has complained to the landlord in writing of a
violation under 70-24-303;or
(c) has organized or become a member of a tenant's
union, mobile home park tenant association, or similar
organization.
In a letter written on July 8, 1992, Jankes complained to
Swenson about several problems. They informed Swenson that he
failed to "maintain in a good and safe working order electrical,
plumbing and sanitary facilities" and that the "plumbing and
sanitary facilities . . . are broken and are in need of repair."
The letter also notified Swenson that he failed to provide and
maintain appropriate garbage receptacles and failed to supply
running water to their home.
At trial, Jankes testified that they joined a tenants'
association in November 1992 and that Alice Janke, as a member of
that tenant's association, appeared before the 1993 Session of the
Montana Legislature and testified in support of an amendment to the
Landlord and Tenant Act. The amendment, which related to the
operation of mobile home parks and limited the ability of landlords
to evict tenants, passed and became law. Swenson attended the
hearing at which Alice Janke spoke.
Both Jankes' complaint to Swenson, and Alice Janke's testimony
on behalf of the tenant's association occurred prior to Swensonls
February 4, 1993, attempt to retake possession of Jankes' space and
terminate their tenancy.
Jankes' complaints to Swenson within months of his eviction
notice, Swenson's failure to address those complaints, Jankes'
membership in the tenants' association and activities on behalf of
that association, and Swenson's disapproval of those activities,
provided substantial evidence in support of the District Court's
finding of retaliatory conduct.
For these reasons, we hold that substantial credible evidence
supports the District Court's finding that Swenson's actions were
retaliatory and that the court's finding of retaliatory conduct was
not clearly erroneous.
ISSUE 2
Did the District Court err when it awarded damages equal to
three months1 rent pursuant to § 70-24-311,MCA?
We review a district court's conclusions of law to determine
if the court s application of the law is correct. Carbon County v. Union
Reserve Coal Co. (Mont. 1995), 898 P.2d 680, 686, 52 St. Rep. 529, 533.
The court concluded that pursuant to § 70-24-411,MCA, Jankes
were entitled to an award of damages equal to three months rent.
However, Swenson claims that § -411 required Jankes to prove
purposeful conduct, which they did not do.
Section 70-24-411,MCA, provides in part that:
If a landlord unlawfully removes or excludes the tenant
from the premises or purposefullv diminishes services to
the tenant by interrupting or causing the interruption
of heat, running water, hot water, electricity, gas, or
other essential services, the tenant may recover
possession or terminate the rental agreement and, in
either case, recover an amount not more than 3 monthsr
periodic rent or treble damases, whichever is sreater.
(Emphasis added.)
While on its face § 70-24-411,MCA, does require purposeful
conduct, the retaliatory conduct statute allows remedies pursuant
to § -411 for retaliatory conduct. Specifically, subsection (2) of
the statute provides that "[ilf the landlord acts in violation of
subsection (1) of this section, the tenant is entitled to the
remedies provided in 70-24-411 . . . . It Section 70-24-431(2), MCA.
Here, the court, as discussed in Issue 1, found that Swenson
acted in retaliation and concluded that he violated § 70-24-431,
MCA. Accordingly, Jankes were entitled to "recover an amount not
more than 3 months1 periodic rent or treble damages, whichever is
greater." Section 70-24-411,MCA. Therefore, we need not discuss
whether Swenson acted purposefully to conclude that the District
Court correctly awarded damages pursuant to § 70-24-411,MCA.
ISSUE 3
Was Swenson entitled to terminate Jankesl tenancy without
cause pursuant to § 70-24-441,MCA?
We next consider Swensonlsallegation that as a landlord he is
entitled to terminate a tenancy without reason pursuant to
§ 70-24-441(2), MCA, and is entitled to bring an action for
possession if the tenant does not remove himself from the premises.
Section 70-24-441(2),MCA, does allow a landlord to terminate
a tenancy, however, the retaliatory conduct statute discussed above
provides that "[i]f the landlord acts in violation of subsection
(1) of this section, the tenant . . . has a defense in any
retaliatory action against him for possession." Section
70-24-431(2), MCA.
Here, the District Court found that Swenson acted in
retaliation and correctly concluded that such conduct violated
I 5 70-24-431,MCA. Therefore, we conclude that Swenson's violation
was a defense to Swenson's action to regain possession.
I ISSUE 4
Did the District Court abuse its discretion when it awarded
I $4775 to Jankes for their attorney fees?
I A district court's award of reasonable attorney fees is a
discretionary act. I l r .C i h l (1993), 259 Mont. 240, 246, 855
hev hsom
P.2d 1009, 1013. Therefore, we will not reverse the district court
absent an abuse of discretion. I l r 855 P.2d at 1013; seeMqv.First
he,
N t l Pawn B o e s (1995), 270 Mont 132, 134, 890 ~ . 2 d
a' rkr 386, 388.
I Af ter trial, the court entered judgment in favor of Jankes and
awarded damages, attorney fees, and costs. Later, the court held
a hearing to determine the amount of the attorney fees, and
afterward, awarded Jankes $4775. Swenson does not contend that
attorney fees should have been denied, but contends that the amount
I of attorney fees awarded was unreasonable.
We have stated that in determining what constitutes reasonable
I attorney fees, the following factors should be considered as
guidelines: (1) the amount and character of the services rendered;
(2) the labor, time, and trouble involved; (3) the character and
I importance of the litigation in which the services were rendered;
(4) the amount of money or the value of the property to be
affected; (5) the professional skill and experience called for;
(6) the attorneys' character and standing in their profession; and
(7) the result secured by the services of the attorneys. Majersv.
ShiningMountains (1988), 230 Mont. 373, 379-80, 750 P.2d 449, 453; see
also Carkeekv.Ayer (1980), 188 Mont. 345, 347, 613 P.2d 1013, 1015; First
,
Security Bank of Bozeman v. Tholkes (1976) 169 Mont 422, 429-30, 547 P.2d
A review of the record reveals not only that Jankes' witness
testified to each of the seven factors, but also that Swenson
neither objected to nor rebutted this testimony. In fact, at the
hearing, counsel for Swenson stated that:
I'm not questioning the number of hours that Mr. Penwell
spent or the $100 fee either. I request that it's more
than legitimate for a man of his experience. So any
reference to that in my brief should be withdrawn, Your
Honor, as to the number of hours.
Therefore, we conclude that the District Court did not abuse its
discretion when it awarded fees in the amount of $4775.
Additionally, Jankes have incurred attorney fees because of
Swenson's appeal to this Court, and request an additional award.
Section 70-24-442,MCA, provides that reasonable attorney fees and
costs may be awarded to the prevailing party in an action pursuant
to the Residential Landlord and Tenant Act of 1977. Therefore, we
conclude that Jankes are entitled to an award of reasonable
attorney fees for this appeal.
For these reasons, we affirm the order of the District Court
and remand to the District Court for further proceedings to
determine a reasonable attorney fee award for services rendered to
the respondents on appeal.
We concur: