No. 98-088 IN THE SUPREME COURT OF THE STATE OF MONTANA 1998 MT 217
RON and SHARONNASON, d/b/a PLEASANT VIEW TRAILER COURT,

v. Plaintiffs, Respondents and Cross-Appellants, 

# FILED SEP 03 

## 1990 KENNETH E. LEISTIKO and DA VINE S. GRESHAM, a/k/a DA VINE S. LEISTIKO, Defendants, Appellants and Cross-Respondents.

APPEAL FROM: District Court ofthe First Judicial District, In and for the County ofLewis & Clark, The Honorable Thomas C. Honzel, Judge presiding. COUNSEL OF RECORD:

Filed: For Appellants: John 1. Oitzinger, Attorney at Law, Helena, Montana ForRespondents: James A. Rice, Jr.; Jackson & Rice, Helena, Montana James T. Harrison, Jr.; Harrison, Loendorf, Poston & Duncan, Helena, Montana
Submitted onBriefs: June 11, 1998 

# \k Decided: September 3, 1998

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### Justice Karla M. Gray delivered the Opinion ofthe Court.
,-rl Kenneth E. and Davine S. Leistiko (the Leistikos) appeal from thejudgment entered by the First Judicial District Court, Lewis and Clark County, on its Findings of Fact, Conclusions ofLaw and Order granting Ron and Sharon Nason (the Nasons) possession of Lot K in the Nasons' trailer court, ordering the Leistikos to remove theirtrailer from the lot, and awarding costs and attorney's fees to the Nasons. The Leistikos raise the following issues on appeal: ,-r2 1. Were the Nasons' written notices ofthe Leistikos' noncompliance with the rental agreement materially defective? ,-r3 2. Didthe DistrictCourterrin concludingthatthe Nasons were notrequired to accept the Leistikos' tender ofthe past-due rent? ,-r4 The Nasons raise two issues on cross-appeal. In addition, they contend that the Leistikos failed to timelyraise the issue ofdefective notices ofnoncompliance in the District Court and, as a result, failed to preserve this issue for appeal. Moreover, the Nasons request the withdrawal oftheir cross-appeal in the event we decline to address the merits ofthe Leistikos' appeal. ,-r5 Forthe reasons discussedbelow, we conclude that the Leistikos did not timely raise the issue ofwhether the notices ofnoncompliance were defective in the District Court and that issue is not properly before us. Moreover, we conclude that the Leistikos' second issue

2is premised on their succeeding on the first issue. Consequently, we do not address the merits ofthe Leistikos' issues on appeal, we deem the Nasons' cross-appeal withdrawn and
we affirm the District Court. BACKGROUND ,-r6 The Nasons own the PleasantView Trailer Court located in Lewis and Clark County, Montana. In May of 1994, the Leistikos purchased a mobile home situated on Lot K ofthe Nasons' trailer court. When the Leistikos moved into the mobile home, they signed a rental agreement for the lot space. ,-r7 On October 18, 1996, the Nasons sent the Leistikos three notices stating that the Leistikos were not in compliance with the rental agreement. The first notice related to rent which allegedly was past due andrequestedpayment ofthe amount due within 15 days. The second notice related to an addition to the Leistikos' mobile home which purportedly violated county spacing regulations and requested the Leistikos to either remove or modify the addition within 14 days. The third notice stated that the mobile home's porch addition
was built over the septic tank, impaired access to the tank and must be removed within 3 days. The Leistikos did not timely correct any ofthe noncompliances set forth in the notices and, on November 4, 1996, the Nasons' attorney advised the Leistikos in writing that the rental agreementwas terminated. Thereafter, the Leistikos tenderedpayment of$110 for the past-due rent, butthe Nasons refused to accept it.

3**~8** The Nasons subsequently filed an action in Lewis and Clark County Justice Court alleging that the Leistikos had breached the rental agreement; they sought to evict the Leistikos from the trailer court. The Leistikos answered the complaint, raised eight affirmative defenses and asserted seven counterclaims against the Nasons. They also moved to have the case removed to the District Court because the damages requested in their counterclaims exceededthe Justice Court'sjurisdictional limit. The Nasons did not oppose the motion and the Justice Court ordered the case removed to the District Court.**~9** The District Courtbifurcated the Leistikos' counterclaims from the Nasons' eviction action andheld a benchtrial on the eviction-related issues. Thereafter, itissuedits Findings ofFact, Conclusions ofLaw and Order, concluding that the Leistikos hadbreachedthe rental agreement by notpaying the past-due rent, afterrepeated requests for payment, buthad not otherwise breached the rental agreement. It ordered the Leistikos to remove their mobile home from the trailer court lot within 20 days ofthe date ofthejudgment. Judgment was entered accordingly and stayedpending the Leistikos' appeal and the Nasons' cross-appeal. DISCUSSION**~10** 1. Were the Nasons' written notices ofthe Leistikos' noncompliance with the rental agreement materially defective?**~11** The Leistikos argue that the Nasons' eviction action should have been dismissed because the noncompliance notices were defective in failing to adequately specify the acts and omissions which constituted noncompliance, as required by § 70-24-422, MCA. In response, the Nasons raise the threshold questions ofwhetherthe Leistikos timely raised the 4issue regarding defective notices in the District Court and, consequently, whether that issue is properlybefore us. Itis well-established that we will not address issues on appeal which
were notproperlyraised in the district court.**See,~,** Nitzel v. Wickman (1997), 283 Mont. 304,313,940 P.2d 451,456. As a result, it is necessary to resolve the Nasons' threshold questions at the outset. ,-r12 Relying onMarshv. Overland(1995),274Mont. 21, 905 P.2d 1088, theNasons argue that, because the Leistikos did notraise the issue ofwhether the noncompliance notices were defective until their post-trial briefand proposed findings offact, conclusions oflaw and order, they did not timely raise the issue in the District Court and cannot now appeal on that basis. They further point outthatthe District Court did not address this issue in its Findings ofFact, Conclusions ofLaw and Order. ,-r13 InMarsh, theplaintiffattemptedto argue on appeal an issue raised in the district court only in his post-hearing memorandum and not addressed in the district court's order. The plaintiffhad not raised the issue in his complaint, did not address the issue at the district courthearing anddidnotmoveto amendhis complaintto conformto any evidencepresented relating to the issue. We held that, under those circumstances, the issue had not been timely raised in the district court and could notbe raised on appeal. Marsh, 274 Mont. at 29, 905 P.2d at 1093. ,-r14 The Leistikos concede that they did not present any argument in the District Court regarding the sufficiency ofthe noncompliance notices until theirpost-trial submissions to
5the court. They contend, however, thatthe sufficiency ofthe notices was controvertedin the pleadings and, therefore, effectively raised as an issue priorto the benchtrial.**~15** Paragraph 5 ofthe Nasons' complaint alleged that [o]n or about October 18, 1996, Plaintiffs gave written notice, sentby certified mail, to Defendants ofthree violations ofthe terms ofthe rental agreement, including failure to pay the increasedrate ofrent after proper notice, and two notices regarding the placement of additions on Defendants' mobile home which violated spacing requirements ofthe court and ofstate law. A copy of the three notices sent to the Defendants are attached hereto as Exhibits B, C, andD. Each ofthe appendednotices statedthat it was given in compliance with § 70-24-422, MCA, which requires that the notice specify the acts and omissions constituting the breach ofa rental agreement. See § 70-24-422(1), MCA. The Leistikos answered the allegations in Paragraph 5 by stating that they "deny the allegations ofParagraph 5 except admit they received copies ofthe items attached as Exhibits B, C, and D to the complaint." They also alleged, as an affirmative defense, that they hadpaid ortendered all amounts due under the rental agreement. Relying on Montana Metal Buildings, Inc. v. Shapiro (1997), 283 Mont. 471, 942 P.2d 694, the Leistikos contend that the denial and affirmative allegation in their
answer timely put the sufficiency ofthe noncompliance notices at issue and adequately preserved that issue for appeal.**~16** In MontanaMetal Buildings, the plaintiffalleged in its complaint that the defendant owed it a specific amount ofmoney as reflected in invoices appended to the complaint. In his answer, the defendant specifically denied that he owed plaintiffthe amount stated in the
6appended invoices and affirmatively alleged that he owed no money to the plaintiff. Montana Metal Buildings, 283 Mont. at 475, 942 P.2d at 697. The district court granted summaryjudgmentto the plaintiff, concluding thatno genuine issues ofmaterial fact existed with regard to the defendant's liability for the amounts listed in the complaint. Montana Metal Buildings, 283 Mont. at 474,942 P.2d at 696. Wereversed on appeal, concluding that the defendant's denial and affirmative allegation effectively controverted the factual allegations in the complaint, putting those allegations in issue, and created genuine issues of material fact which put the plaintiffto its proof. Montana Metal Buildings, 283 Mont. at 475-76,942 P.2d at 697. ,-r17 Here, however, the Leistikos did not specifically deny that the notices complied with § 70-24-422, MeA. Nor did they affirmatively assert that the notices were defective in failing to sufficiently describe the acts or omissions constituting breaches of the rental agreement. The Leistikos merely denied the factual allegations contained in Paragraph 5 of the complaint which, as set forth above, related to the circumstances surrounding the giving ofthe notices ofnoncompliance. Furthermore, while their affirmative allegation that they hadpaidortenderedthe past-duerent controverted any allegation that they hadbreachedthe rental agreement in that regard, it did not equate to an allegation that the related notice of noncompliance insufficiently specifiedthe act oromission constituting the breach. Thus, the Leistikos' answer did not specifically controvert the statutory sufficiency ofthe notices in the same mannerthat the defendant in Montana Metal Buildings specifically put into issue
7the amount ofmoney alleged to be owed. See MontanaMetal Buildings, 283 Mont. at 475, 942 P.2d at 697. We conclude that Montana Metal Buildings is distinguishable from the present case and does not support the Leistikos' assertion that they raised the sufficiency of the noncompliance notices in their answer to the complaint.**~**18 We concludedin Marshthat where aparty fails to raise an issue in the pleadings, does notpresentargument onthe issue during the hearing on the merits ofthe case, does notmove to amendthe pleadings to conform to any evidence presented andraises the issue for the first time in apost-hearingmemorandumwhichthe district court does not address in its order, the issue has not been timely raised and may notbe raised on appeal. Marsh, 274 Mont. at 29, 905 P.2d at 1093. The same circumstances are before us in the present case. The Leistikos did not controvert the sufficiency ofthe noncompliance notices in their answer and they concede that they did not argue or otherwise raise the issue ofwhether the noncompliance notices sufficiently specified the acts or omissions constituting the breach ofthe rental agreement until their post-trial submissions to the District Court. Nor did they move to amend the pleadings to conform to any evidence which may have been presented at trial regarding this issue. Finally, the District Court did not address the Leistikos' argument in this regard in its Findings ofFact, Conclusions ofLaw and Order. We conclude that the Leistikos failed to timely raise this issue in the District Court and, therefore, cannotraise the issue on appeal. See Marsh, 274 Mont. at 29,905 P.2d at 1093. Thus, we decline to address whetherthe notices ofnoncompliance were sufficient under § 70-24-422, MCA.
8,-r19 2. Didthe District Courterrin concludingthat the Nasons were notrequiredto accept the Leistikos' tender ofthe past-due rent? ,-r20 The District Court concluded that the Leistikos' November 11,1996, tender of$110 for the past-due rent was made subsequent to the termination ofthe rental agreement and, as
a result, that the Nasons were not requiredto accept the tender. The Leistikos argue that the District Court erred in this regardbecause the notices were statutorily defective and did not operate to terminatethe rental agreement. Withthe rental agreement still in effect, then, they contend that the Nasons were required to accept their tender ofpayment. ,-r21 The problem with the Leistikos' arguments underthis issue is that they are premised
on a conclusion that the notices were defective. We declined to address whether the notices
were defective above, onthebasis thatthe issue was notproperlyraised in the District Court. Thus, since the necessary predicate to the Leistikos' arguments in this issue--namely, a conclusion that the notices were defective--does not exist, we need not address this issue further. ,-r22 The Nasons request that they be allowed to withdraw their cross-appeal in the event
we decline to address the merits ofthe Leistikos' appeal. On the basis ofour discussion of the Leistikos' issues on appeal, we deem the Nasons' cross-appeal withdrawn. ,-r23 As a final matter, the Nasons request an award ofattorney's fees and costs on appeal. Section 70-24-442(1), MCA, authorizes an award of attorney's fees and costs to the prevailing party in an action on a rental agreement. Here, the Nasons prevailed and the District Court awardedthem costs andreasonable attorney's fees pursuant to the statute. The 9Nasons have incurred further attorney's fees and costs in successfully defending this appeal and awarding suchfees andcosts on appeal is consistentwith the District Court's award. See Marsh, 274 Mont. at 30, 905 P.2d at 1093. Therefore, we conclude that the Nasons are entitledto an award ofcosts andreasonable attorney's fees incurred as aresult ofthis appeal.**~24** Affirmed and remanded for a determination ofreasonable attorney's fees and costs incurred on appeal.

We concur:



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