Solem v. Chilcote

                               No.      95-110
          IN THE SUPREMECOURT OF THE STATE OF MONTANA
                                     1995


THADDEUS SOLEM, KENNETHNICHOLSON,
and DAVID STEWART,
          Plaintiffs    and Respondents,
     v.
KEN CHILCOTE,
          Defendant    and Appellant.



APPEAL FROM:     District  Court of the Fourth Judicial  District,
                 In and for the County of Missoula,
                 The Honorable Douglas G. Harkin,   Judge presiding


COUNSEL OF RECORD:
          For Appellant:
                 Michael Sol, Sol & Wolfe,
                 Missoula, Montana
          For Respondents:
                  John Rayburn Velk,      Attorney   at Law,
                  Missoula, Montana
Justice         Charles          E. Erdmann delivered                    the opinion             of the Court.
           This      is     an     appeal        of     a decision                of     the      Fourth             Judicial
District          Court,     Missoula         County,         awarding           damages and attorney                       fees
to   Thaddeus              Solem,      Kenneth           Nicholson,               and        David        Stewart               (the
tenants)          against         Ken Chilcote            (the         landlord).             We affirm              in part,
reverse           in part,         and direct           the       return         of    the      landlord's                appeal

bond.
          We restate             the issues           as follows:
           1.       Did the District                  Court       err    in finding             that        the landlord
wrongfully           withheld         a portion           of the tenants'                    security         deposit?
           2.       Did     the District              Court       err      in determining                   there        was an
illegal         provision          in the rental              agreement               and awarding            damages?
           3.       Did the District                  Court      err     in awarding             attorney                fees     to
the tenants?
           4.       IS     the     landlord           entitled          to   the        return         of     his         appeal
bond?
                                                          Facts
           The tenants            rented      a residential               unit        from the landlord.                        The
lease       was a month-to-month                      agreement          and required                a $300 security
deposit.           Prior         to the tenants            moving in,             the landlord               completed             a
condition           of     premises         statement             which      all        three        of      the         tenants
signed.           On March 15, 1991, the tenants                             gave an oral                 30-day          notice
to   terminate             on April        15,        1991.        Although            the     notice         was not             in
writing         as required           by the lease,                the landlord               accepted             it.




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          The landlord             advised           the tenants                it    was easier              to       lease     the
apartment          at the beginning                  of the month and,                        if     they     could        vacate
by April          1, 1991,         they     would          receive            a prorated              portion           of their

rent      back.         The landlord             started           to run his              advertisement                 to rent
the apartment             on March 23, 1991.                      The tenants                moved out by April                    1,
1991.
          On March          30,      1991,        and prior                to        the      tenants          moving,           The
landlord          alleges          that         he     and        his         wife         conducted               a    cleaning
inspection             and went         through            the       apartment             pointing           out       specific
items      to     the      tenants         that       needed            cleaning.                   The landlord                also
alleges         that     later      the same day he hand delivered                                     a written           notice
of      general        cleaning          requirements                 to      the      tenants'             mailbox.             The
tenants         deny any such cleaning                       inspection                and delivery                of notice.
          The apartment            was leased              to a new tenant                   on April          8, 1991.            On
April       17,        1991,      the      landlord              prepared             a written               statement            of
damages and cleaning                     and presented                 this          statement            to the tenants.
The      landlord         deducted              $70.50       for        cleaning              charges,             $126.67         of
prorated          rent      from        April        1 through             the         date         the     premises            were
re-let      on April             8, and $18.00               in damages and repairs                                ($10 for         a
missing         smoke alarm and $8 for                      nail        holes).              He returned               $84.83      of
the $300 deposit                 to the tenants.
          The tenants              objected           to     the        deductions                  and filed            suit      in
Justice         Court.           Justice         Court       found         that        the         landlord        had agreed
orally      to refund            any rent         due after           April           1, and that             the rent          from
April      1 to Apri .l 8 was wrongfully                          withheld.                The court           then ordered


                                                                 3
double          damages.              The     court      also        found     that       the     landlord            had
wrongfully            withheld            $10 for     a smoke detector             and had failed              to give
a proper         4%hour             notice     for     cleaning        as required         by the lease.
          The landlord               appealed         the decision           to the District             Court        for
a trial         de nova.              In its         August     3,    1994,      Judgment,        the     District
Court        awarded        the tenants              withheld        rent,     double      damages,           damages
for     an illegal           provision              in the      lease,       and attorney             fees.       From
this      Judgment,         the landlord               appeals.
                                              Standard        of Review
          Our review            of a district            court's       finding         of fact        is set forth
in Y A Bar Livestock                      Company v. Harkness                (1994),     269 Mont.            239, 887
P.2d 1211,            as follows:
                  This Court reviews the findings            of a trial      court
          sitting     without    a jury     to determine       if   the court's
          findings    are clearly     erroneous.     Rule 52(a), M.R.Civ.P.
          A district     court's  findings    are clearly    erroneous if they
          are not supported by substantial            credible     evidence,     if
          the trial      court has misapprehended         the effect      of the
          evidence,    or if a review of the record leaves this Court
          with the definite      and firm conviction       that a mistake has
          been committed.
Y A Bar Livestock,                   887 P.2d at 1213 (citing                   Interstate            Prod.     Credit
AssIn      v.    DeSaye (1991),                250 Mont.         320, 323,         820 P.2d 1285,               1287.)
We have           defined             substantial             evidence        to      mean       "more         than         a
scintilla,            but       .     .    . less      than     a preponderance,                 of     evidence."
State      v.    Shodair            (Mont.     1995),         902 P.2d 21, 26,             52 St.        Rep. 879,
882 (citing            Miller         v. Frasure         (1991),       248 Mont.         132,     137, 809 P.2d
1257,        1261).
          We review                a district                court's             conclusion              of     law to determine                   if

the     court's             interpretation                      of    the        law     is     correct.               Carbon        County        v.
Union         Reserve             Coal     Co.         (Mont.         1995),            898 P.2d           680,        686,        52 St.        Rep.

529,         533.

                                                                      Issue        1

          Did         the         District              Court          err         in         finding           that          the     landlord

wrongfully                 withheld             a portion              of        the     tenants'              security             deposit?

          The         landlord                 withheld               $88.50             from        the        tenants'              security

deposit               fqr           cleaning                  ($70.50)                 and        for          repairing                damages
($18.00--nail                     holes         and missing                  smoke            alarm).           The District                 Court

found         that         the     landlord             did      not        meet        the      burden         of        proving       he gave

to     the     tenants              a 48-hour                notice         of     needed           cleaning               as required             by

§ 70-25-201(3),                          MCA,        and therefore                     held       that        this        portion           of    the

tenants'             security              deposit            was wrongfully                      withheld.                 Likewise,             the

court          found             that          the          landlord              could           not         withhold              funds         for

repairing             the         nail       hole       because             he failed              to provide                the     requisite

48-hour             notice.               In        addition,           the            court       found          that        the     landlord

wrongfully                 charged           the       tenants          for        a smoke detector                         when there            was

no      credible             evidence                that       a smoke                detector           was        in     the      apartment

when it             was leased                 to     the     tenants.

             The landlord                  argues            that      the        Residential                  Landlord             and Tenant
Act      and         the         Residential                 Security              Deposits              Act         do     not      require            a

notice          of     any         kind        to     be given              to     repair          damages.                 He points             out

that         the      48-hour             notice             requirement                 of      § 70-25-201,                     MCA (1991),

refers             exclusively                  to     cleaning.                   The         landlord              also         contends         he


                                                                             5
properly         provided            the tenants             with     a list        of damages and a partial
refund       as required              under      § 70-25-202,                 MCA.
          The tenants            argue that             damage to property,                     by nature,         is very
similar         to     cleaning            charges         and therefore                the      tenants     should          be
allowed         an opportunity                 to repair            damages before               money is withheld
from their            security          deposit.             The tenants            claim,       in any event,            the
landlord         did not meet his burden of proving                                     damages as required                  by
5 70-25-204(l),                MCA.
          The tenants'               argument         is      incongruous.               The District              Court's
finding         of     fact          stated      "[tlenants             have          admitted        liability           for
causing         damage to the property                         in the form of nail                   holes        . . . .'I
However,         the District                 Court's         determination              that      the     landlord          is
still       liable        because             prior        notice        of       damages was required                       is
incorrect.              There         is    no requirement                  in    the    Residential              Security
Deposits         Act     that         notice       be given           for        repairs.          The only          action
that      the    landlord             needed to take                 under        § 70-25-202,             MCA, was to
provide         the     tenant         with      a list         of damages within                   30 days of            the
termination             of      tenancy          or        30 days            after         a    surrender         of     the
premises.             The landlord              did     this        in regard           to the $8 nail               holes,
and therefore,                that     amount was properly                       withheld        from the security
deposit.             We hold           that     the      District           Court        erred      in     finding        the
landlord         incorrectly               withheld          funds      for       the nail        holes.
          The landlord,                however,         is     required           to give         a 48-hour          notice
for     cleaning        under         § 70-25-201,             MCA (1991).               The landlord             contends
that      he and his             wife         inspected         the     apartment               on March 30,            1991,


                                                                6
pointed         out        to     the    tenants         what         needed to               be cleaned,                 and then
delivered           a written            notice        of cleaning              to be done to the tenants'
mailbox.              The landlord                surmises            that      the           tenants         left         without
checking         their           mailbox.         The tenants                deny that              the inspection                  and
the delivery               of the notice               ever      occurred.
          The District                  Court         found      that        the        tenants            never          received
written          notice            as   required          by      statute.                    See § 70-25-201,                      MCA
(1991).          The tenants              testified            to the facts                   found        by the District
Court.           In Williams              v.     DeVinney             (1993),        259 Mont.               354,         359,      856
P.2d      546,      549,          we stated           "[dlue      regard           is     to be given                 the       trial
court's         ability            to judge       the credibility                   of the witnesses,                        and it
is not this            Court's          function         to substitute                  its     judgment            for     that        of
the     trier         of        fact.       DeSave,           820 P.2d          at        1287-88."                 The record
provides           substantial                 evidence         to      support               the     District             Court's
finding.           We further             determine            that     the court              did not misapprehend
this      evidence              and we have no firm                     conviction                  that     a mistake              has
been made.             We therefore              conclude         the District                  Court       did not err                 in
awarding         to the tenants                  the $70.50 withheld                          for     cleaning.
          Additionally,                 the District             Court        agreed with                  the tenants              and
found       that       the         smoke detector               was not            present            when the             tenants
moved into            the apartment.                   The landlord                introduced               a condition                 of
premises           statement             signed         by      the      tenants              which         lists         a smoke
detector         as present             and working             when the tenants                      signed         the lease.
However,           the      landlord            did     not      record         the           testing         of     the         smoke
detector           as was his            practice            and the District                       Court      did        not      find


                                                                 7
his     testimony                   credible.            Again,            we will         defer          to        the     District
Court's           judgment            of the witnesses'                    credibility.               Williams,              856    P.2d

at     549.         There            was substantial                  credible            evidence             to    support           the
District            Court's               finding.           This     evidence            was not          misapprehended.
Nor do we have any conviction                                       that      a mistake           has been made.                        We
thus       conclude            that         the District              Court       did      not      err        in    awarding           to
the tenants                the $10.00                withheld         for     the smoke detector.
           Finally,            the landlord              withheld            $126.67          as prorated                 rent.      The
lease       provided                for     30-days          notice         to terminate              the       tenancy.             The
tenants           asked             the      landlord          if     they        could        leave           early,         and       he
apparently               agreed.              The District                Court      went on to hold,                       however,
that       this      attempted                oral      modification              of the          lease         agreement            was
not effective.                       The court           concluded            that      for      an oral            agreement           to
be effective,                  it     must be fully                 executed         on both          sides.               The court
held that           if     the tenants                had vacated             the premises             by April              1, which
was done,            and the landlord                    prorated            the rent          to April             1, which         was
not     done,            there            would       have      been a full                execution                of      the     oral
agreement                and        the      lease       would         be      modified.               The          court          held,

however,            that       the oral              modification             was not         fully        executed               by the
landlord            and therefore                    was not effective.
         The             court's              conclusion              regarding               the         attempted                 oral
modification                was not appealed                    by either            party       and so is not before
this     Court.             On appeal,               we confine             ourselves          solely          to the case as
it     is appealed                  to us.           Feely     v. Lacey           (1958),         133 Mont.                283,     293,




                                                                      8
322 P.2d           1104,         1109.         Accordingly,            we must           accept        the     District
Court's          holding         on this       issue.
         Based on that              holding,          the District             Court        should     have allowed
the landlord              to prorate           the April          rent       and charge           the tenants             for
the period          of time         for       which     the property             was not re-leased.                    That
period         of time       was from April              1 through            April         8 and was reflected
by the $126.67              that     the landlord           withheld            from the security               deposit
for unpaid          rent.         Thus, the landlord                properly           withheld        $126.67         from
tenants'          security         deposit        and the District                   Court     erred      in awarding
that     amount to the tenants.
         The landlord               was authorized               to withhold                a total       of    $134.67
from the security                  deposit       ($8 nail        hole and $126.67 prorated                        rent).
The landlord              wrongfully            withheld         the       $70.50       for     cleaning        and the
$10      for      the       smoke         detector         for         a     total       of      $80.50.              Under
§ 70-25-204,              MCA, the tenants                 were entitled                to double         the     amount
wrongfully          withheld            for    the total         of $161 in damages.                   We therefore
hold      that      the      District          Court       erred       in     part       in     finding        that     the
landlord          wrongfully             withheld        a portion             of     the      tenants'        security
deposit.
                                                        Issue      2
         Did the District                 Court err        in determining                there       was an illegal
provision          in the rental               agreement          and awarding                damages?
         The lease           contained          a provision            which         stated:         "Acceptance           of
a refund           of      all     or     a portion          of        the     deposit          by     tenant         shall
constitute          a full         and final          release       of landlord                from any claims             of


                                                             9
tenant      of     any nature             whatsoever."                 The District            Court      relied       on
§ 70-24-202(l),             MCA, in concluding                      this    provision         of the landlord's
lease      agreement         was illegal.                     Section        70-24-202(l),              MCA, states
that     a rental       agreement             may not provide               that     a party     agree to waive
or forego         rights     provided           under the Residential                    Landlord        and Tenant
Act.       The District           Court         found        that      the contested           provision         in the
rental        agreement             was         in         conflict         with        the      provisions            of
5 70-24-442(l),              MCA, which              provides          as follows:
         In an action on a rental         agreement or arising    under this
         chapter,   reasonable      attorney     fees, together  with costs
         and necessary       disbursements,        may be awarded to the
         prevailing    party     notwithstanding       an agreement   to the
         contrary.
          The tenants'            first         amended complaint                   alleged      that      the     lease
agreement         contained            a provision            prohibited           by § 70-24-202(l),               MCA.
The action          constituted               "an action            on a rental         agreement"          and that
provision         grants     tenants            the right           to pursue attorney             fees--a         right
which      the contested            provision              in the rental            agreement          attempted       to
waive.        Although           the      tenants          requested         and were awarded               attorney
fees under         the provisions               of the Residential                  Security       Deposits         Act,
they       also     alleged            that      the        contested         provision           in     the       lease
agreement         was an attempt                 to waive             the   right       to request          attorney
fees      under     § 70-24-442(l),                  MCA.
          The District           Court        went on to assess additional                         damages under
the      provisions         of    § 70-24-403(2),                     MCA (1991),        in the         Residential
Landlord          and      Tenant         Act        for     this       illegal       provision.               Section
70-24-403,          MCA (19911,               provides:


                                                               10
         (1)   A provision         prohibited   by 70-24-202 included       in a
         rental     agreement is unenforceable.
                (2)     If a party purposefully      uses a rental agreement
         containing       provisions     known by him to be prohibited,       the
         other    party      may recover,      in addition    to his actual
         damages, an amount up to three months' periodic                rent.
         The landlord           argues         that        this        is     an action             brought          under
Chapter        25 of Title       70, the Residential                        Security        Deposits          Act,      and
the court         was therefore         prohibited               from relying              on § 70-24-403,              MCA

(1991),        in     the     Residential             Landlord              and      Tenant         Act      to      award
additional          damages.       This     argument               ignores          the allegations                in the
first     amended complaint             that      the contested                provision         was prohibited
by § 70-24-202(l),              MCA. The District                      Court        did not err            in finding
that    the contested          provision          in the rental                agreement         was prohibited
by § 70-24-202(l),               MCA, or in                awarding           additional            damages under
5 70-24-403(2),             MCA (1991).           We therefore                affirm       the District              Court
on this        issue.
                                                   Issue           3
         Did the District              Court      err       in     awarding           attorney        fees        to the
tenants?
         The landlord          questions          why he must pay attorney                            fees        when he
prevailed           on the     major      part        of     his       reason        for     this         appeal--the
unexecuted          oral     agreement         to prorate              rent        from April         1, 1991,          was
held     invalid.           The landlord          references                cases where we have upheld
the reductions              of attorney          fees       when the amount in controversy                               is
simply      not worth         such a fee.          See Carkeek v. Ayer                       (1980),         188 Mont.
345, 348, 613 P.2d 1013, 1016.                             He argues          it    is unjustified                for   the
District        Court      to     award attorney                   fees   of       $5253.68          for        a $70.50
judgment.
          Attorney      fees       are     available              under      5 70-25-204,                 MCA.          That
section        provides          that       any      person          who wrongfully                      withholds           a
residential          property            security          deposit,          or        any portion               thereof,
shall       be liable          in damages to the                   tenant         in      a civil        action,         and
attorney        fees      may be           awarded           to     the     prevailing              party          at    the
discretion          of the district               court.           Section         70-25-204,            MCA.
           In E.C.A.      Environmental              Management Services,                         Inc.     v.     Toenyes

(1984),        208 Mont.          336,       679 P.2d              213,     we discussed                   the     proper
construction           of "prevailing               party"         in regard            to attorney             fees.       We
stated       that
           [nlo one factor       should be considered       in determining         the
          prevailing      party for the purpose of attorney            fees.       The
          party that is awarded a money judgment in a lawsuit                        is
          not necessarily          the successful     or prevailing           party.
          However, this Court agrees with those jurisdictions                    that
          have found the award of money to be an important                  item to
          consider when deciding who, in fact,             did prevail.        Ocean
          West Contractors        v. Halec Const. Co. (1979), 123 Ariz.
          470, 600 P.2d 1102. .                 The party     that survives          an
          action     involving       a counterclaim,      set-off,      refund       or
          penalty      with    the net     judgment     should     generally         be
          considered      the successful     or prevailing      party.
E.C.A.,       679 P.2d at 217-18.                   Although         we have modified                    the District
Court's       award       to     the      tenants,           the     action            involved          a refund           of
tenants'       security         deposit       for     a net judgment                   of $80.50          in favor          of
the      tenants.          The         tenants       are      therefore                still      the      prevailing
parties       on this          issue     and are entitled                 to their             attorney           fees      at
the District           Court's         discretion.



                                                           12
        We will         not reverse              a district            court's        award of        attorney           fees

absent      an abuse of the court's                          discretion.               Sage v. Rogers               (1993)
257 Mont.          229,        242,       848 P.2d            1034,           1042.          The District               Court
awarded attorney               fees to the tenants                      for    those      fees associated                with
the     recovery         of     the      tenants'           security           deposit.             The court            then
ordered      the tenants              to file       an affidavit               of those        fees     and provided
for     a period          of      time      in      which        the      landlord           may object            to       the
tenants'         claim        and request            a hearing.                 We conclude            the       District
Court      did    not abuse its                discretion           in its        award of attorney                     fees,
and therefore            hold      that        the District             Court      did not err           in awarding
attorney         fees    to the tenants.
                                                         Issue      4
         Is the landlord                 entitled           to the return              of his       appeal        bond?
        The landlord              requests           this     Court           to order        the     return       of his
appeal      bond in           the amount of                 $2000.            The District            Court       did     not
respond      to the landlord's                    motions          to return          the appeal         bond to him
though      the     judgment           had been executed,                      and thus,         the appeal              bond
has     remained          filed        with        the      Justice           Court.           The tenants               have
conceded         the validity             of      the landlord's                 claim       to the bond and we
conclude         that    the landlord               is entitled               to return         of the bond.
        We affirm             in part,         reverse         in part,           and direct           the District
Court      to order           the Justice            Court         to return           the     $2000 bond to the
landlord.



                                                                                Justice

                                                              13
We concur:




             14