TJo. 83-423 

IN THE SUPREF-IE COURT OF THE STATE OF MONTANA 

1984 

RICHARD NAPIER and LEONA NAPIER, 

Plaintiffs and Appellants, 

-vsGARY ADKISON and SHERRY ADKISON, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Sverdrup & Spencer, Libby, Montana 

For Respondents: 

Fennessy, Crocker & Allen, Libby, Montana 

Submitted on Briefs: December 22, 1983 

Decided: April 5, 1984 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Richard and Leona Napier appeal from a judgment of the 

District Court, Nineteenth Judicial District, Lincoln County, 

denying them recovery in an action for breach of a 

landlord-tenant agreement. We affirm in part and reverse in 

part the decision of the District Court. 

On January 10, 1982, the Napiers entered into an 

agreement with the Adkisons for the rental of a mobile home 

near Libby, Montana. As part of the agreement, the Napiers 

agreed to pay $100 on or before the 10th of each month and to 

make any necessary repairs on the mobile home. These terms 

were met until June 10, 1982, when the Napiers failed to make 

the required rental payment. 

Arrangements were then made for the June payment to be 

made on or before June 27, 1982. The June payment was not 

ma-de and the Adkisons made repeated attempts through the end 

of June to contact the Napiers. During this time, the 

Adkisons noticed that the Napiers had left their dogs in the 

mobile home and that the dogs were damaging the interior of 

the mobile home. Fina.11~ on July 3, 1982, Mrs. Adkison left 

a note on the mobile home notifying the Napiers that she 

needed access to the mobile home so that the bank appraiser 

could examine the property. After receiving no response from 

the Napiers, on July 13, 1.982, the Adkisons placed a pa.dlock 

on the front door of the mobile home and contacted the 

Napiers' daughter, asking her to have her parents contact 

them and notifying her that they would have to evict her 

parents if necessa.ry in order to gain access to the mobile 

home. 
Upon discovering the padlock on the front door of the 

mobile home, the Napiers contacted an attorney and a suit, 

which was later dismissed, was filed in Justice Court. After 

receiving the summons and complaint, the Adkisons attempted 

to contact the Napiers through the Napiers' daughter. On 

July 22, 1982, shortly after a conversation between the 

Adkisons and the Napiers' daughter, Mr. Napier telephoned the 

Adkisons and they arranged to meet at the mobile home around 

6: 00 that evening. The Adkisons arrived at the mobile home 

before the Napiers and discovered that the front door of the 

mobile home had been forcibly opened and the mobile home 

burglarized. 

On August 19, 1982, the Napiers filed a complaint in 

District Court alleging unlawful exclusion from the mobile 

home and requesting treble damages. The Adkisons 

counterclaimed alleging abandonment and requesting all unpaid 

rent. A nonjury trial. was held on June 15, 1983. The 

District Court entered its findings of fact, conclusions of 

law and judgment approximately one month later and held that 

neither party was entitled to damages or costs. The Napiers 

filed a notice of appeal on August 19, 1983, and the matter 

is now before this Court. 

The sole issue on appeal is whether the findings of 

fact, conclusions of law and judgment entered by the District 

Court are supported by substantial credible evidence. 

This Court has repeatedly held that it will not disturb 

findings of fact and conclusions of law that are based on 

substantial credible evidence. The evidence need not be 

flawless. Evidence may be considered "substantial" which is 

inherently weak or conflicts with other evidence presented. 

This Court will view the evidence in the light most favorable 
to the prevailing party and will not overturn the findings 

and conclusions based on such evidence unless there is a 

clear preponderance of evidence against them. Cameron v. 

Cameron (1978), 179 Mont. 219, 228, 587 P-2d 939, 945. 

Here, the Napiers contend that substantial evidence 

cannot be found to support the following conclusions by the 

District Court: 

"1. Plaintiffs failed to pay rent due upon rental 

from Defendants. Notice of failure to pay such 

payment was duly made and went unheeded by 

Plaintiffs. Three day notice to quit was orally 

given to a family member of Plaintiffs which was 

the only practical method since Plaintiffs for all 

purposes had abandoned the premises and their 

whereabouts unknown. 

"2. Plaintiffs abandoned the premises about June 

27, 1982; in a.ddition, Plaintiffs committed waste 

thereon by leaving unattended dogs locked in the 

mobile home. Defendants act of placing the padlock 

on the mobile home was a practical but unauthorized 

solution to the problem. 

"3. There is no causal relationship between the 

unauthorized placing of the padlock by Defendants 

and the burglary committed by unknown third 

persons. " 

The Napiers contend that because the mobile home was not 

abandoned and the Adkisons did not follow any of the 

statutory requirements for terminating the rental agreement, 

the Adkisons unlawfully removed or excluded the Napiers from 

the mobile home. Therefore, under section 70-24-411, MCA, 

they contend that the Adkisons are liable for the value of 

the rental as of July 13, 1982, and the value of the property 

stolen from the mobile home. 

The Residential Landlord and Tenant Act as adopted in 

Montana provides that "[elxcept in the case of abandonment, 

surrender, or as permitted in this chapter, a landlord may 

not recover or take possession of the d.welling unit by action 

or otherwise . . . I' Section 70-24-428, MCA. A landlord, 
then, may take possession of a dwelling unit under only three 

circumstances: 1) abandonment; 2) surrender; or 3) as 

permitted in the Uniform Landlord and Tenant Act. If the 

tenant abandons the dwelling unit and "if the landlord 

accepts the abandonment as a surrender, the rental agreement 

is terminated hy the landlord as of the date the landlord has 

notice of the abandonment." Section 70-24-426, MCA. 

Here, the District Court determined that the Napiers 

abandoned the premises as of June 27, 1982. The record shows 

that the Napiers did not make the rental payment as agreed on 

June 27th; the Napiers' dogs were left unattended in the 

mobile home and had damaged the interior of the mobile home; 

the Adkisons had repeatedly stopped by the mobile home yet 

could find no one present; and, when contacted, the Napiers' 

daughter told the Adkisons that she did not know where her 

parents were. This evidence clearly supports the District 

Court's conclusion that the mobile home was abandoned by the 

Napiers . 

Under section 70-24-426, MCA, the Adkisons could accept 

the abandonment as a surrender and take possession of the 

property. The rental agreement would then be deemed 

terminated as of the date that the Adkisons had notice of the 

abandonment. Because the Adkisons proceeded under section 

70-24-426, MCA, to terminate the rental agreement they were 

not required to give notice to the Napiers. Therefore, the 

issue of whether the Napiers were given proper notice of 

termination is irrelevant. 

Although the Adkisons were required by the Uniform 

Landlord and Tenant Act to make reasonable attempts to notify 

the tenant in writing after an abandonment that all personal 

property must be removed from the premises, they were not 
responsible for any loss to the Napiers resulting from 

storage of the personal property u.nless the loss was caused 

by a purposeful or negligent act on behalf of the Adkisons. 

Sections 70-24-430 (1) and (5), MCA. 

Here, the necessary causal connection is missing. The 

burglary of the mobile home was not a foreseeable consequence 

of the Adkisons' act of placing the padlock on the mobile 

home door and the Adkisons may not be held liable for any 

loss resulting from the burglary. Thus the Napiers' claim 

for damages was properly rejected by the District Court. 

However, section 70-24-427, MCA, provides that "[ilf the 

rental agreement is terminated, the landlord has a claim for 

possession and for rent and a separate claim for actual 

damages for any breach of the rental agreement." Because the 

rental agreement was properly terminated. by the Adkisons 

under section 70-24-426, MCA, they have a valid claim against 

the Napiers for rent and damages, contrary to the judgment of 

the District Court. 

The District Court is therefore affirmed in part, 

reversed in part and remanded to the District Court with 

directions to reinstate the Adkisons' claim for rent and 

actual damages for breach of the rental agreement and further 

proceedings consonant with this opinion. 

We Concur: