### No. 80-434 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

ROB ROY, individually and as guardian ad litem of HEATHER ROY, Plaintiff and Appellant,

WALTER NEIBAUER, Defendant and Respondent.

1 from: District Court of the Eighth Judicial District, 

### In and for the County of Cascade. Honorable Joel G. Roth, Judgepresiding. Counsel of Record: For Appellant: Regnier and Lewis, Great Falls,Montana For Respondent:

, 

### Jardine, Stephenson, Blewett and Weaver, Great Falls,Montana Thomas Boland, Great Falls,Montana

Submitted on briefs: December 30, 1980 oecided

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Clerk

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a summary judgment order entered by the District Court of the Eighth Judicial District. Plaintiff-appellant, individually and as guardian ad litem of his daughter Heather, sued defendant-respondentWalter Neibauer and defendant John Carlson for injuries received by Heather inAugust 1978. After extensive discovery, respondentNeibauer filed a motion for summary judgment. The District Court ruled in favor of thatmotion. Appellant filed a notice of appeal to this Court in September 1979. Roy v. Neibauer (1980),

### -Mont. 

## , 610 P.2d 1185, 37 St.Rep. 897. We dismissed the appealwithoutprejudice because itwas taken prematurely. Subsequently, appellant dismissed all complaints against defendant John Carlson and again appealed the order of the DistrictCourt. Walter Neibauer purchased a duplex on August 19, 1978. Two separate tenant familiesresided in the duplex pursuant to a preexisting lease, the Rob Roy family and the John Carlson family. The Carlsons owned a small cocker spaniel dog, and their lease expressly allowed them to maintain the dog on the premises. On August 27, 1978, or eight days after Neibauer acquired the duplex, the Carlson dog bit Heather Roy in the frontyard of the duplex on the Carlsons' lawn area. Rob ROY, as guardian ad litem for hisminor daughter, filed a complaint against both the dog's owner and the owner of the duplex. Two issues are raised on this appeal: 1. What duty, if any, did Neibauer, as owner and landlord of a duplex, owe to ROY,a tenant, for injuriesreceived on the duplex's front lawn from a dog owned and harbored by another tenant, Carlson, when Neibauer purchased the duplex subject to the Carlson lease allowing Carlson to have the dog, and when the dog injured the Roy child before Neibauer could have legally taken any steps toremove the dog from the premises or to otherwise control the dog? 2. When are deposition expenses properly taxed as costs infavor of the prevailing party in summary judgment cases? The District Court found that sinceMontana 

### lawand the Carlson leaserequired Neibauer togive Carlson at

### least fourteen dayst notice toremove the dog, and since the dog injured the child only nine days afterNeibauer's purchase, respondent, as a matter of 

### law, had no duty toprotect Roy from the dog sincehe had no legal remedy to remove or control the dog. Itis an elementary principle of 

### lawthatbefore a claim for relief can be made against a defendant for negligence, the existenceof a dutyby the defendant to the plaintiff must be shown, along with the breach of that duty and a resulting injury. Kakos v. Byram (1930), 88 Mont. 309, 292 P. 909; Jackson v. William Dingwall Company (19651, 145Mont. 127, 399 P.2d 236. The existence of a duty isa matter of lawtobe determined by the court and not the jury. Kakos, supra. Here, the DistrictCourt decided asa matter of lawthat there existed no duty from respondent to appellant since respondenthad no control over the dog or the right to dispose of the dog prior to the child's injury. We agree. Since there

was no duty, there could be no negligence, and appellant'sclaim againstrespondent failed, regardless of whether respondent had knowledge of any dangerous propensities of the dog. Respondent Neibauer purchased the duplex subject to a preexisting lease. The lease specifically allowed Carlson toown and harbor a dog. The lease furtherprovided, ina paragraph designated as "Notice of Change," thatrespondent had toprovide Carlson with thirty days' notice if respondent intended tochange the termsof the lease. Respondent could only terminate the 

### lease by providing Carlson thirty days' notice inwriting. Pursuant tothe lease, Carlson agreed he would not maintain orpermit tobe maintained a nuisance on the premises, such as a dog with dangerous propensities. If it

was determined thatCarlson's dog was a nuisance on the property, respondent's only remedy was toproceed under the defaultclause of the leasewhich required respondent to giveCarlson fifteendays' notice of the default. More importantly, before respondent could terminate his lease with Carlson, he was bound by section 70-24-422, MCA, which states: "Noncompliance of tenant generally

## -- landlord's right of termination

## -- damaqes 

## -- injunction. (1)~xzpt asprovided inthis chapter, if there isa noncompliance by the tenant with the rental agreement or a noncompliance with 70-24- 321 affectinghealth and safety, the landlord may deliver a written notice to the tenantpursuant to 70-24-108 specifying the 

### acts and omissions constituting the breach and that the rental agreement willterminate upon a date not less than 14days afterreceipt of the notice. If the breach isnot remedied within that time, the rental agreement terminates asprovided in the notice

# ..." Respondent did notpurchase the premises subject to Carlson's leaseand the existence of the dog untilAugust

### 19, 1978, eight days before the child was bitten. He had no opportunity to remove the dog from the premises nor did he have any controlwhatsoever over the manner in which Carlson handled the dog. On these facts and the statute, the DistrictCourt correctly found that respondenthad no duty to appellant to prevent Carlson's dog from injuring Heather Roy; therefore, judgmentwas properly entered against appellant as a matter of law. Appellant next raises the issue of when deposition expenses are properly taxed as costs in favor of the prevailing party. Respondent's memorandum of costs and disbursements included deposition expenses in the amount of $328. The depositions in question included a deposition of Rob Roy at

a cost of $122, of Marney Roy at a cost of $98,of John Carlson at a cost of $70, and of Marcia Carlson at a cost of $38.75. Appellant claims that these depositions were merely discovery devices used by respondent's attorney for investigation and preparation and cannot now be properly taxed against appellant. We disagree. The District Court expressly relied on these "several depositions" in determining that summary judgment should be entered against appellant. The DistrictCourtmade reference to the depositions in itsmemorandum decision. These depositions were necessary for the disposing of this litigation by 

### way of summary judgmentand are proper elements of respondent's costs. Johnsonv. Furgeson (1971),158 Mont. 170, 489 P.2d 1032. Affirmed.We concur: 

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This cause was submitted prior to January 5, 1981.