No. 83-168 

IN THE SUPREJ!!lE COURT OF TEE STATE OF MONTANA 

1983 

GALLATIN VALLEY MEDICAL DENTAL CENTER, INC., 

a Mont. Corp., 

Plaintiff and Respondent, 

-vsMICHAEL J. LEMLEY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and forthe County of Gallatin, 

The Honorable Joseph E. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joseph E. Mudd, Bridger, Montana 

For Res2ondent: 

Douglas R. Drysdale, Bozeman, Plontana 

Submitted on Briefs: July 21, 1983 

Decided: October 6, 1983 

-.-- 

Clerk 
Mr. Justice L.C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant, Michael J. Lemley, appeals from a judgment 

of the Eighteenth Judicial District Court awarding 

plaintiff, Gallatin Valley Medical-Dental Center, Inc. 

$4,340.25 in rent. We affirm. 

The parties entered into a five year lease for a space 

in a building known as Gallatin Valley Medical-Dental Center 

in Bozeman, Montana. Appellant agreed to pay a total of 

$11,571 during the first two years of the lease in equal 

installments of $482.25 per month commencing on July 1, 

1979. By the terms of the lease, the premises was to be 

used as a pharmacy and could not be sublet without the 

written consent of the respondent. 

In August, 1979, without any notice to respondent, 

appellant sold his pharmacy business to Donald A. and Hazel 

Angle. The Angles added their signatures to the original 

lease and paid the respondent rent until September 1, 1980 

when they vacated and abandoned the premises. 

On September 24, 1980 the respondent wrote a letter to 

appellant advising him that he was in default and the lease 

was terminated, but that all rights and remedies contained 

in the lease were reserved. 

The respondent eventually relet the premises on July 

1, 1981 for $300 per month. 

Respondent commenced this action on June 12, 1981 

claiming appellant owed him $4,340.25 in lost rent. The 

complaint alleged that appellant had violated the terms of 

the lease by not paying $482.25 per month from October 1, 

1980 to the date of the complaint. In his answer, appellant 
admitted owing the respondent $4,340.. 25 but asserted he had 

been released from his obligations under the lease because 

respondent had terminated the lease and accepted rent from 

the Angles. 

The District Court held that respondent's letter of 

September 24, 1980 did not terminate appellant's liability 

and appellant owed respondent $4,340.25 pursuant to the 

terms of the lease. 

Appellant now contends the District Court erred in 

awarding respondent the lost rent. Specifically, appellant 

asserts that respondent's letter of September 24, 1980, read 

in conjunction with the lease, indicates that any liability 

for rent was terminated by the language of the letter. 

Moreover, appellant asserts that the lease must be construed 

against the respondent because Section 28-3-206, MCA 

provides that an ambiguous contract must be interpreted most 

strongly against the party who caused the uncertainty to 

exsist. 

We affirm the judgment of the District Court. 

Initially, we note that the record does not indicate 

that respondent prepared the lease. Thus, the agreement 

cannot be construed against respondent pursuant to Section 

28-3-206, MCA. 

In this dispute, the applicable portion of the lease 

is section 7, which, in pertinent part, provides: 

"If the leased property shall be 

deserted or vacated,. . . "or there shall be a default in the 

payment of any rent or any part thereof, 

for more than fifteen (15) days . . . 

" after written notice of such default by 

the Landlord, Tenant's rights in this 

lease . . . 
" shall thereupon terminate and end, and 

the Landlord shall have the right to 

enter or reposses the leased property . . 

"Landlord may likewise . . . "and in addition to any other remedies 

which Landlord may have upon default, let 

and re-let said premises in whole or in 

part . . . 

"and Tenant shall be liable unto Landlord 

for any deficiency between the remaining 

upaid rental and the rental so procured 

by the Landlord for the period of said 

letting or re-letting and shall further 

be liable for costs of re-letting . . . 

"and Landlord may institute action for 

the whole of such deficiency immediately 

upon effecting a letting or re-letting 

and shall not thereafter be precluded 

from further like action in the event 

that such letting or re-letting shall not 

embrace the whole unexpired portion of 

the term hereof. . . "If the Landlord shall give the notice of 

termination as herein provided, then at 

the expiration of such period, this Lease 

shall terminate as completely as that 

were the date herein definitely fixed for 

the expiration of the term of this lease, 

and Tenant shall then surrender the 

leased property to Landlord. . . "the notice hereinbefore provided is only 

for the purpose of creating conditional 

limitation hereunder pursuant to which 

this lease shall terminate." 

The appellant argues that respondent's letter of 

September 24, 1980 triggered that portion of section 7 which 

provides: "If the Landlord shall give the notice of 

termination as herein provided, then at the expiration of 

such period, this Lease shall terminate as completely as 

that were the date herein definitely fixed for the 

expiration of the terms of this lease. . ." In making this 

argument, appellant points to the fifth paragraph of the 

letter of September 24, 1980 which states, "Therefore, the 
Landlord does elect without further notice to terminate the 

lease bearing the date of June 22, 1979, and referred to 

above, reserving to itself all other rights and remedies 

contained in the said lease in the event of default." Thus, 

appellant asserts the obligation to pay rent was terminated 

by the letter. 

The letter of September 24, 1980, taken in its 

entirety, did not end appellant's obligation to pay rent. 

The respondent's letter did terminate the lease so far as 

appellant's rights were concerned, but the remedial options 

of the lease were reserved. The portion of the letter 

appellant relies upon clearly states that although 

appellant's lease was being terminated, respondent was 

"reserving to itself all other rights and remedies contained 

in the said lease in the event of default." This is a clear 

indication that provisions of the lease, including the right 

to collect lost rent, were being reserved. In addition, it 

should have been evident to the appellant that the letter of 

September 24, 1980 was not solely a termination of 

appellant's rights under the lease. The third paragraph of 

the letter states: "This is intended as the specific 

fifteen-day notice of default and non-payment called for in 

your lease" (emphasis added). Thus, the language of the 

letter expressly indicated that because appellant was in 

default, respondent was terminating his rights and reserving 

remedies under the lease. 

Section 7 of the lease provides that in the event of 

default ". . .Tenant's rights in this lease (if the Landlord 

so elects and such election is reserved). . . shall 

thereupon terminate and end, and the Landlord shall have the 
right to enter or repossess the leased property. . . " The 

lease further provides, "Landlord may. . . at Landlord's 

option, and in addition to any other remedies which Landlord 

may have upon default, let and relet said premises. . . and 

the Tenant shall be liable unto Landlord for any deficiency 

between the remaining unpaid rentals and the rentals so 

procured. . . " 

Thus, the respondent had the right to terminate 

appellant's rights in the lease, in order to let or relet, 

and still hold the appellant liable for rent. 

Finally, appellant argues that respondent's remedies 

were exclusive, i.e., respondent could not terminate 

appellant's rights in the lease and relet the premises. 

This assertion is not what appellant agreed to when he 

entered into the lease. As previously discussed, the 

language of the lease states that in the event of default 

appellant's rights were terminated and respondent could 

repossess and relet the premises. 

In sum, we find no reversible error and therefore 

af f irm. 

We concur: