NO. 95-217 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

Defendant, Third Party Plaintiff, 

Respondent and Cross-Appellant, 

v. 

MARTHA BANDEROB, 

Third Party Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry L. Seiffert, Attorney at Law, Billings, 

Montana 

For Respondent: 

Mark E. Noennig; Hendrickson, Everson, Noennig & 

Woodward, Billings, Montana 

Filed: 

Submitted on Briefs: September 7, 1995 

Decided: February 6, 1996 
Justice Karla M. Gray delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to Montana Law Week, State Reporter and West Publishing 

Company. 

All parties appeal from the judgment entered in this case by 

the Thirteenth Judicial District Court, Yellowstone County, on 

findings of fact and conclusions of law. Neil Banderob appeals, 

and the Estate of Frank Banderob (Estate) cross-appeals, from the 

award to Neil of limited damages in his action against the Estate. 

Neil and Martha Banderob appeal the award of damages to the Estate 

on its breach of lease claim. We affirm in part and reverse in 

part. 

We address the following dispositive issues: 

1. Did the District Court err in concluding that Neil 

Banderob consented to the compensation he received? 

2. Did the District Court err in concluding that Neil could 

not recover under quantum meruit? 

3. Did the District Court err in concluding that no joint 

venture existed? 

4. Did the District Court err in awarding Neil compensation 

for his services and improvements to the property? 

5. Did the District Court err in concluding that Neil and 

Martha Banderob owed rent payments to the Estate? 

6. Did the District Court err in concluding that Neil is not 

entitled to a set-off against rent owed, under the theory of 

unjust enrichment, for the Estate's tax savings from the 

special use valuation agreement? 

2 
FACTUAL AND PROCEDURAL BACKGROUND 

Neil Banderob (Neil) is one of four children of the decedent, 

Frank Banderob (Frank). All of the Banderob children grew up on 

Frank's ranch near Pryor, Montana. Neil was the only one of the 

children to live and work on the ranch for most of his life. Over 

the years, Neil purchased equipment and supplies for the ranch and 

paid for repairs on ranch equipment. No express agreement, either 

oral or written, existed between Neil and Frank pursuant to which 

Neil was paid specific wages or reimbursed for the purchases and 

repairs he made. For his participation on the ranch from 1955 

until Frank's death in 1982, Neil received room and board, spending 

money, a share of veterinary bills, and a contribution toward 

insurance and licensing. Frank also provided Neil with cattle, 

grain and pigs, and the use of ranch pasture and equipment. Neil 

did custom ranch work for others in addition to his work on Frank's 

ranch. 

In 1981, Neil and his attorney met with Frank and Frank's 

attorney in an effort to obtain "justice" for Neil's contributions 

on the ranch. Neil hoped that Frank would "make it right," but 

acknowledged that it was Frank's decision. Frank never agreed to 

any change and Neil continued on at the ranch as before. 

Frank died in 1982, leaving a 1978 will that devised his 

estate equally among his four children and designated Neil's 

brothers Joe and Norman as co-personal representatives. On June 

18, 1982, Neil filed a creditor's claim with the Estate for 

approximately $175,000 for labor, equipment, supplies, and repairs. 

3 
The Estate rejected his claim. Neil filed this action based on 

agreement or quantum meruit soon thereafter, seeking compensation 

for labor, equipment, supplies and repairs, and for the 

appreciation in value of the property which resulted from 

improvements he made. 

Effective January 1, 1984, Neil and his wife Martha leased the 

ranch from the Estate for one year. The lease was automatically 

renewable each year unless terminated in writing six months prior 

to the end of the year. Annual rent was $11,001.25, to be paid in 

equal installments of $5,500.63 on January 1 and September 15 each 

year. Prior to any termination of the lease based on default by 

Neil and Martha, the Estate was required to serve a written go-day 

notice of default. 

In October of 1984, the heirs, including Neil, signed a 

special use valuation agreement under Section 2032(a) of the 

Internal Revenue Code. Such an agreement reduces the valuation of 

property for estate tax purposes, provided that a family member 

materially participates in its operation for 10 years. The Estate 

saved approximately $110,000 in federal estate taxes as a result of 

the agreement. Neil did not renegotiate any lease provisions in 

exchange for signing the special use valuation agreement. 

Beginning in September 1986, and excluding the January 1993 

payment, Neil and Martha did not pay the semi-annual lease 

payments. In September of 1987, the Estate sent a letter to Neil 

and Martha stating that, because they had failed to pay the rent, 

it appeared that the lease was no longer in effect. Neil and 

4 
Martha's attorney responded that the lease was still in effect. 

On September 28, 1990, the Estate gave Neil and Martha a 90- 

day notice of default relating to their failure to make rent 

payments. After Neil and Martha failed to cure the default, the 

Estate filed a counterclaim in this action alleging breach of the 

lease and failure to cure default, and seeking accrued and unpaid 

rent. Neil asserted affirmative defenses to the counterclaim 

seeking set-offs for expenses he incurred in undertaking unusual 

maintenance and improvements on the property and for the tax 

savings realized by the Estate from the special use valuation 

agreement. He also sought to modify the lease as a result of 

alleged Agricultural Stabilization and Conservation Service payment 

modifications. 

The Estate mailed Neil and Martha a second notice of default 

on May 8, 1992, when it discovered that Neil was asserting a defect 

regarding the earlier notice. Thereafter, the District Court 

allowed the Estate to file an amended pleading reciting the new 

default notice and requesting declaratory relief in the event the 

default was not timely cured. Alternatively, and in the event the 

court determined, as Neil asserted, that the lease had been 

terminated, the Estate sought the reasonable value of Neil and 

Martha's use and occupation of the ranch beginning January 1, 1986. 

Martha was added as a third party defendant. 

The District Court held a bench trial and, thereafter, entered 

extensive findings of fact and conclusions of law. With regard to 

Neil's claims against the Estate, the court concluded that Neil 

5 
consented to the compensation he received as full payment for his 

services and supplies contributed to the ranch, that Neil could not 

recover under quantum meruit and that no joint venture existed 

between Neil and Frank. In addition, however, the court awarded 

Neil $19,283, representing $1,640 in compensation and $17,643 in 

simple interest at 6%, for services to the ranch and $10,000 for 

the enhanced value of the ranch resulting from improvements Neil 

made. 

With regard to the Estate's counterclaim, the court determined 

that Neil and Martha had breached the lease by failing to pay rent. 

It entered judgment for the Estate in the amount of $114,277.45 in 

delinquent lease payments and interest, as well as lease payments 

accruing until the lease is terminated and the property vacated. 

The total amount of Neil's judgment, $29,283, was to be set off 

against the accrued interest portion of the Estate's judgment 

against Neil and Martha. 

Neil and Martha appeal and the Estate cross-appeals. 

STANDARD OF REVIEW 

We review a district court's findings of fact under a threepart test to determine whether they are clearly erroneous. Daines 

v. Knight (1995), 269 Mont. 320, 324-25, 888 P.2d 904, 906 

(citations omitted). A finding of fact is clearly erroneous if it 

is not supported by substantial evidence or, if so supported, the 

district court misapprehended the evidence or this Court is left 

with the definite and firm conviction that a mistake has been 

committed. Daines, 888 P.2d at 906. We review a court's 

6 
conclusions of law to determine whether they are correct. Dairies, 

888 P.2d at 906. 

DISCUSSION 

1. Did the District Court err in concluding that Neil 

consented to the compensation he received? 

With regard to Neil's claim for compensation for his labor and 

other contributions to the ranch operation before Frank's death, 

the District Court found that the benefits Neil received were all 

that Frank agreed to pay and that Neil remained on the ranch 

despite Frank's refusal to change his compensation practices. The 

court also found that, although Neil hoped to negotiate a purchase 

of the ranch, no agreement was reached and Frank did not promise 

Neil that he would receive the ranch when Frank died. The District 

Court determined that Neil was bound by his admission that the only 

agreement between Neil and Frank was that Frank would pay what he 

felt like paying and concluded, under § 28-2-503, MCA, that Neil 

accepted and consented to the compensation he received as being 

full payment. 

Neil does not specifically contend that the court's findings 

relating to the extent of the agreement between himself and Frank 

are clearly erroneous. He argues that the District Court erred as 

a matter of law in failing to conclude, under § 28-2-503(2), MCA, 

that his lack of knowledge of certain facts invalidated his consent 

to the compensation and benefits received as full payment. He also 

asserts that the cases relied on by the court are distinguishable 
on their facts. 

Section 28-2-503(2), MCA, provides that the "voluntary 

acceptance of the benefit of a transaction is equivalent to a 

consent to all the obligations arising from it, so far as the facts 

are known or ought to be known to the person accepting." Neil's 

first contention is that he accepted--and consented to--the 

compensation and benefits Frank provided based on an "impression" 

or "anticipation" that the ranch ultimately would be his. Thus, 

according to Neil, he did not know of the "fact" that he would not 

inherit the ranch and, as a result, his acceptance and consent do 

not preclude recovery for his labor and other contributions to the 

ranch. 

The problem with Neil's contention is that it is not supported 

by either the stipulated facts or the evidence presented at trial. 

Neil stipulated to the fact that no specific agreement entitled him 

to wages or reimbursement for ranch-related purchases. He also 

stipulated that, when his mother died in 1975, he signed papers at 

his father's request transferring property from his mother's name 

to his father's name. He further agreed that he tried to negotiate 

with his father through attorneys in 1981 for "justice," hoping 

that his father would "make it right." Finally, he acknowledged 

that such decisions were entirely up to his father and that his 

father never did "make it right." 

In addition, as found by the court and not challenged by Neil, 

Neil's effort to negotiate a purchase of the ranch was not 

successful. Nor did Frank ever promise Neil that he would receive 

8 
the ranch when Frank died. Simply stated, and as the court found, 

the benefits Neil received were all that Frank agreed to pay and 

Neil stayed on, despite Frank's refusal to pay increased benefits. 

The stipulated facts and evidence are clear that, 

notwithstanding Neil's efforts to acquire the ranch while Frank was 

alive or ensure that he would receive it after Frank's death, no 

agreement was reached. The evidence also is clear that, while Neil 

could have left the ranch at any time, he chose not to do so; 

indeed, Neil stayed on at the ranch accepting the compensation and 

benefits Frank provided with full knowledge of the circumstances. 

These facts, as found by the District Court and unchallenged by 

Neil, are the pertinent "facts" under § 28-2-503(2), MCA, which 

were known by Neil in continuing to accept the compensation 

provided by Frank. 

Against this backdrop, Neil argues that his parents "gave him 

the impression" the ranch would be his some day and he 

"anticipated" that the ranch would be his someday if he "stuck it 

out. " This argument essentially requests us to determine that the 

District Court erred in failing to make additional findings--in 

Neil's favor--and, based on such additional findings, to conclude 

that he did not consent to the compensation he received. 

With the exception of his own testimony in these regards, 

however, Neil did not provide evidentiary support for either the 

"impression" or the "anticipation." Neil was required to prove 

these matters in order to negate the Estate's consent defense; he 

did not establish them to the District Court's satisfaction. 

9 
It is the sole province of the trier of fact--here, the 

District Court--to weigh evidence and determine the credibility of 

witnesses, and we will not substitute our judgment for that of the 

factfinder. Magone v. Froehlich (1995), 270 Mont. 381, 387, 892 

P.2d 540, 544 (citation omitted). We cannot conclude as a matter 

of law that, for purposes of 5 28-Z-503(2), MCA, Neil established 

his lack of knowledge of material facts regarding the compensation 

and benefits he accepted and to which he consented. 

Neil's second contention is that the District Court erred in 

relying on Stone-Ordean-Wells Co. v. Anderson (19231, 66 Mont. 64, 

212 P. 853, and Cook-Reynolds v. Beyer (1938), 107 Mont. 1, 79 P.2d 

658, because those cases involved written agreements. We agree 

that the facts on which those cases were decided were 

distinguishable from those in the present case; in addition, it is 

not clear that those cases are applicable here in any event. 

Even assuming that the cases relied on by the District Court 

were inapplicable, however, Neil presents no authority which 

supports his position, and we have located none. On the basis of 

the record before us, we cannot conclude that the District Court 

erred in determining that Neil consented to the compensation and 

benefits he received. 

2. Did the District Court err in concluding that Neil could 

not recover under quantum meruit? 

Neil asserted a right to recover the value of his services, 

expenditures and use of his equipment in the ranch operations under 

the theory of quantum meruit. The District Court concluded that no 

10 
quantum meruit recovery was available to Neil. 

"Quantum Meruit" as an amount of recovery simply means 

"as much as deserved, " and measures the recovery under an 

implied contract to pay compensation as the reasonable 

value of services rendered. 

Lutey Construction-The Craftsman v. State (19931, 257 Mont. 387, 

391-92, 851 P.2d 1037, 1039 (citing Kintz v. Read (Wash. App. 

1981), 626 P.2d 52, 55). An implied contract arises not from 

consent of the parties, but from principles of natural justice and 

equity, based on the doctrine of unjust enrichment. St. James 

Community Hospital v. Dep't of Social and Rehabilitation Services 

(19791, 182 Mont. 80, 85, 595 P.2d 379, 382 (citation omitted). To 

establish an implied contract based on unjust enrichment, the 

plaintiff must demonstrate misconduct or fault of some kind by the 

defendant or that he was taken advantage of by the defendant. 

Brown v. Thornton (1967), 150 Mont. 150, 156, 432 P.2d 386, 390 

(citations omitted). 

Based on its determinations that the benefits Neil received 

were all Frank agreed to pay and that, by staying on at the ranch 

under those circumstances Neil consented to the compensation he 

received, the District Court determined that no implied contract to 

pay additional compensation existed. The court relied on St. James 

Communitv HosDital in concluding that an implied promise to pay for 

services cannot coexist with a specific agreement to pay a 

particular amount, or in a particular manner, for services 

rendered. 

Neil contends that St. James Community Hospital is 

distinguishable from the present case because that decision was 

11 
premised on the existence of a specific contract to pay, and he is 

correct that a written contract existed in St. James Community 

Hospital. & St. James Communitv Hosoital, 595 P.2d at 381. On 

the other hand, our conclusion in St. James Communitv Hosnital-- 

that no promise to pay the value of services will be implied if 

there is a special agreement to pay for those services in a 

particular amount or manner--is not expressly limited to situations 

involving written agreements to pay. St. James Communitv Hospital, 

595 P.2d at 382. Neil offers no analysis based on either law or 

logic in support of such a limitation. 

We concluded above that the District Court did not err in 

determining that Neil consented to the compensation he received. 

That consent created an agreement between Neil and Frank that Neil 

would accept the amount of money and other benefits Frank provided 

as payment for his services and other contributions to the ranch. 

On that basis, and pursuant to St. James Communitv Hospital, we 

conclude that no implied promise to pay the value of Neil's 

contributions exists here as a matter of law. 

Neil argues that the evidence shows that Frank took advantage 

of him and, therefore, that he met the Brown requirement that a 

plaintiff demonstrate misconduct or fault by the defendant, or that 

the defendant took advantage of the plaintiff. See Brown, 432 P.2d 

at 390. Where, as here, the law will not imply a promise to pay 

because an agreement to pay a particular amount or in a particular 

manner exists, we need go no further in our analysis of a party's 

entitlement to recovery under quantum meruit. Therefore, we 

12 
decline to address Neil's argument that he satisfied the Brown 

requirement. 

We hold that the District Court did not err in concluding that 

Neil could not recover under quantum meruit. 

3. Did the District Court err in concluding that no joint 

venture existed? 

As an alternative theory of recovery against the Estate, Neil 

asserted the existence of a joint venture between himself and Frank 

for the operation of the ranch from 1955 to 1982. The definition 

of a joint venture has remained unchanged in Montana for over fifty 

years. A joint venture is an: 

"enterprise undertaken by several persons jointly, and 

more particularly, as an association of two or more 

persons to carry on a single business enterprise for 

profit. It has also been defined, somewhat variantly, as 

a special combination of persons undertaking jointly some 

specific adventure for profit." 

Wiesner v. BBD Partnership (1993), 256 Mont. 158, 162, 845 P.2d 

120, 123 (quoting Sunbird Aviation, Inc. v. Anderson (1982), 200 

Mont. 438, 444, 651 P.2d 622, 625 (quoting Rae v. Cameron (1941), 

112 Mont. 159, 167, 114 P.2d 1060, 1064-65)). 

Four elements must be satisfied in order to establish the 

existence of a joint venture: 

1) an express or implied agreement or contract creating 

the joint venture; 

2) a common purpose among the parties; 

3) a community of interest; and 

4) an equal right of control. 

Wiesner, 845 P.2d at 123 (citation omitted). A joint venture 

13 
arises only when the intention of the parties to associate 

themselves in this manner is clearly manifested. Bender v. Bender 

(1965), 144 Mont. 470, 480, 397 P.2d 957, 962 (citations omitted). 

The District Court entered findings with regard to the 

elements which must be satisfied by a party asserting the existence 

of a joint venture. Those findings--taken singly and in the 

aggregate--reflect the court's determination that Neil did not 

satisfy any of the required elements for a joint venture, and form 

the basis for the court's conclusion that no joint venture existed 

as a matter of law. Neil purports to rely on the Wiesner principle 

that the agreement to create a joint venture may be inferred from 

the parties' conduct or the surrounding circumstances and, on that 

basis, argues legal error by the court. His position, however, 

essentially requests this Court to make findings different from 

those made by the District Court on each required element of a 

joint venture. 

With regard to the first element, the court found that no 

agreement existed under which Neil and Frank created the joint 

venture and that nothing of record evidenced a clear intent to 

establish such a venture. Neil does not contend that these 

findings are unsupported by substantial evidence or otherwise 

clearly erroneous and, based on the record before us, no such 

contention could be successful. There is no question but that the 

District Court's findings in this regard are supported by 

substantial evidence; moreover, the court did not misapprehend the 

evidence in this regard and we are not left with a definite and 

14 
firm conviction that a mistake has been committed. See Daines, 888 

P.2d at 906. 

Neil asserts that he satisfied the first--and, indeed, every-- 

element required to establish the existence of a joint venture. 

His arguments consist of conclusory statements that "the facts 

clearly reflect that [he] in fact did meet all of the elements of 

a joint venture" and that "the conduct of the parties from 1955 to 

1982 clearly reflected they were acting in unison to keep the ranch 

in operation." Such assertions ignore our standard in reviewing a 

district court's findings of fact. We will not substitute our 

judgment for that of the finder of fact by reweighing evidence and 

redetermining the credibility of witnesses. See Maqone, 892 P.2d 

at 544. 

We conclude that the District Court's findings of fact 

relating to the nonexistence of an express or implied agreement 

creating the joint venture are not clearly erroneous. Because each 

of the four Wiesner elements must be satisfied by the party 

claiming the existence of a joint venture (see Wiesner, 845 P.2d at 

1231, these findings provide a sufficient basis for the District 

Court's conclusion that no joint venture was established as a 

matter of law. Therefore, we need not address Neil's similar 

arguments regarding the remaining three elements necessary to 

establish the existence of a joint venture. 

We conclude that the District Court did not err in concluding 

that no joint venture existed. 

15 
4. Did the District Court err in awarding Neil compensation 

for services and improvements to the property? 

The District Court awarded Neil $1,640 as full compensation 

for his services, including contributions of equipment and 

supplies, together with 6% simple interest, for a total of $19,283. 

The court also awarded Neil $10,000, as a set-off against rent 

owed, for the contributory value of improvements made to the ranch 

during the lease which unjustly enriched the Estate. 

Neil contends that the District Court erred by summarily 

relying on the calculations and information submitted by the 

Estate's expert in awarding only $19,283 on his quantum meruit 

claim for services as a ranch hand. The Estate cross-appeals from 

both monetary awards to Neil. Regarding the award for services, 

the Estate argues that no basis for any award for services remained 

after the court properly rejected Neil's quantum meruit and joint 

venture theories. Regarding the award on Neil's claim for the 

contributory value of repairs and improvements he made on the ranch 

during the lease, the Estate contends that no award is available as 

a matter of law where the property did not increase in value as a 

result of the improvements. We address the Estate's cross-appeal 

first, looking at each of these awards in turn. 

We concluded above that the District Court did not err in 

determining that Neil consented to the compensation and benefits 

Frank provided for his services. We also concluded that the court 

did not err in determining that Neil could not recover compensation 

for his services to the ranch based on either a quantum meruit 

recovery or the existence of a joint venture. We note, in 

16 
addition, that the District Court entered a finding of fact that 

"[blenefits paid to Neil for his work on the ranch from 1955 to 

1982 were equal to the reasonable value of his services." Because 

no legal basis remained upon which an award for Neil's services on 

the ranch properly could be premised, we conclude that the District 

Court erred in awarding Neil $1,640 as compensation for his 

services as a ranch hand, including his contributions of equipment 

and supplies. 

The parties also dispute the nature and legal propriety of the 

court's award of $17,643 as "6% simple interest" on the $1,640 

award to Neil for his services. Neil contends that this award is 

a conversion of the $1,640 award into current dollars or, in other 

words, an adjustment for inflation. The Estate argues that the 

court erred as a matter of law in awarding either "legal interest" 

under § 31-l-106, MCA, interest pursuant to an agreement in writing 

under § 31-l-107, MCA, or prejudgment interest under § 27-1-211, 

MCA. We need not resolve this dispute. Our conclusion that the 

District Court erred in awarding Neil the $1,640 onto which the 

"interest" was added--or, under Neil's approach, the conversion 

into current dollars was applied--necessitates our further 

conclusion that, however denominated, the court erred in awarding 

Neil the additional $17,643. Moreover, based on our conclusions on 

this cross-appeal issue that the District Court erred in awarding 

Neil both the $1,640 for services and the $17,643 as interest, we 

need not address Neil's argument that the court erred in relying on 

the Estate's expert to minimize the amount of his award. 

17 
The Estate also cross-appeals the District Court's award to 

Neil of $10,000, for improvements he made to the ranch during the 

lease, as a set-off against rent owed. The court entered findings 

that the value of the ranch was enhanced by $10,000 because of 

Neil's improvements and that the Estate was unjustly enriched in 

that amount. Thereafter, relying on Overcast v. Akra (1982), 197 

Mont. 276, 642 P.2d 1058, the court concluded that tenants could be 

reimbursed only for improvements which were permanent and which 

enhanced the value of the property. Further concluding that the 

ranch decreased in value over the relevant period of time, the 

court ultimately concluded that the Estate had not been unjustly 

enriched. Notwithstanding these latter conclusions, the court's 

judgment included the $10,000 set-off against the judgment in the 

Estate's favor for improvements Neil made to the ranch. 

In Overcast, the lessee made improvements to the land in hopes 

of eventually purchasing it. When the lease expired, the lessor 

offered to sell the land to the lessee, but the terms were 

unacceptable to the lessee. Ultimately, the lessee filed suit to 

recover his costs in making permanent improvements. Overcast, 642 

P.2d at 1060. The "improvements clause" in the lease did not 

encompass nonremovable improvements and, at trial, the lessee 

failed to present evidence that his improvements increased the 

value of the land. Overcast, 642 P.2d at 1062. We held that a 

lessee may not recover for making permanent improvements unless the 

improvements enhance the property's value; stated differently, "if 

the tenant has not made the premises more valuable to the owner, 

18 
the owner has no obligation to make compensation, however great the 

expenditures may have been." Overcast, 642 P.2d at 1062 (citations 

omitted). 

Here, the parties stipulated that, over the period from 1982 

to 1991 during which Neil made the improvements at issue, the 

appraised value of the ranch decreased from $432,600 to $210,000. 

Such a decrease in value is not determinative of whether Neil's 

permanent improvements increased the value of the ranch for 

Overcast purposes, however, since it is possible that a larger 

decrease in value would have occurred absent Neil's improvements. 

Whatever the "contributory value" or costs incurred in making 

the improvements may have been, the record supports only a $1,900 

enhancement in the value of the ranch from Neil's improvements. 

Thus, the District Court's finding that the ranch increased in 

value by $10,000 as a result of Neil's improvements is not 

supported by substantial evidence. The Estate "has no obligation 

to make compensation, however great the expenditures may have been" 

for improvements that did not increase the value of the ranch or 

for repairs that were the tenant's duty under the lease. & 

Overcast, 642 P.2d at 1061-62. 

Neil asserts that the Estate conceded the $10,000 amount via 

the testimony of its expert. The record reflects, however, that 

the expert's report states only that the value of the ranch may 

have been enhanced by as much as $10,000. This figure included a 

specific increased value of $1,900, but also included $5,025 Neil 

spent for repairs; no testimony or other evidence related this 

19 
dollar amount for repairs to any increase in the value of the 

ranch. Furthermore, the District Court correctly concluded that 

Neil and Martha are not entitled to compensation for repairs which 

were their duty under the lease. 

Additionally, the expert rounded his maximum increase in value 

of the ranch up to $10,000 by noting that there 'I [mlay have been 

some other contributions out thereE.1 'I This testimony is 

insufficient to serve as substantial evidentiary support for the 

difference between the established $1,900 increased value and the 

$10,000 award. 

We conclude that the District Court's finding that Neil's 

improvements increased the value of the ranch by $10,000 is clearly 

erroneous and that substantial evidence supports a $1,900 increase 

in value to the ranch as a result of permanent improvements by 

Neil. We further conclude that the court correctly determined, 

pursuant to Overcast, that Neil was not entitled to recover for 

repairs or improvements which did not increase the value of the 

ranch. We hold that the court erred in including in its judgment 

the $10,000 for improvements; we also hold, however, that Neil is 

entitled to judgment in the amount of $1,900 for such improvements. 

5. Did the District Court err in concluding that Neil and 

Martha owed rent payments to the Estate? 

In its counterclaim and third party complaint, the Estate 

alleged that Neil and Martha breached the lease by failing to make 

the rent payments, and sought recovery of the unpaid rental amounts 

and interest thereon. Based on its findings that Neil and Martha 

20 
failed to make the rental payments required by the lease and that 

the lease does not require a notice of default before pursuing a 

claim for rent, the District Court concluded that Neil and Martha 

were liable to the Estate for the lease payments. The court 

separately determined that the payments were due as a result of 

Neil and Martha's failure to cure the defaults of which they were 

given notice and that any error in the first notice of default was 

cured by the second notice which Neil received and Martha was 

presumed to have received. 

Neil and Martha do not challenge either the District Court's 

findings or its Conclusion of Law #12, based on those findings, 

that they are liable to the Estate for the unpaid rent. They 

assert error only with regard to the court's Conclusion of Law #13, 

which related to the sufficiency of the notices of default. They 

contend that, because the earlier notice incorrectly stated the 

amount owed and the second notice was not "served" on them, the 

Estate is precluded from pursuing its claim for rent. We need not 

address Neil and Martha's argument regarding the sufficiency of the 

default notices, however, given the court's unchallenged separate 

determinations that they breached the lease and that the lease did 

not require the Estate to give notice of default before pursuing a 

breach action based on failure to pay rent. 

In pertinent part, the default provision in the lease 

provides: 

Default by Tenants prior to termination of lease. 

If the Tenants should fail to carry out substantially the 

terms of this lease, the Landlord may serve a ninety (90) 

day written notice to the Tenants of the Tenants' failure 

21 
to fulfill the terms of this rental agreement, specifying 

the exact default, and the requirements to correct said 

default. 

If the Tenants fail to correct such default within 

the ninety (90) days, the Landlord shall have the right 

to re-enter and to take full possession of the farm and 

buildings . . . . 

This provision establishes the necessity of a go-day written notice 

of default and an opportunity to cure before the Estate could reenter, take possession of the ranch and terminate the lease. It 

does not require such a notice before the Estate may pursue a 

breach claim for unpaid rent. 

The Estate did not pursue its right of re-entry under the 

lease pursuant to the notices of default. The claim pursued by the 

Estate is a claim for rent owed by Neil and Martha under the lease. 

Thus, the District Court's finding that the lease does not require 

a notice of default before a claim for rent may be pursued is 

supported by the language of the lease. Moreover, Neil and Martha 

admitted, and the court found accordingly, that they failed to make 

the rent payments as alleged by the Estate. 

While a lease is in effect and prior to any termination, 

tenants are liable for unpaid rent pursuant to the lease. Montana 

Williams Double Diamond Corp. v. Hill (19781, 175 Mont. 248, 255, 

573 P.2d 649, 653 (citation omitted). Although Hill involved 

distinguishing when rent was due under a lease from when unlawful 

detainer entitles a landlord to treble damages, our statement that 

the tenant remains liable for rent under an existing lease is 

applicable to the instant case. Here, the District Court found 

that the lease was never terminated by either party; indeed, Neil 

22 
admitted at trial that the lease was still in existence. We hold, 

therefore, that the District Court did not err in concluding that 

Neil and Martha are liable to the Estate for the rent owing and 

unpaid under the lease. 

Neil and Martha also contend that the District Court erred in 

concluding that the Estate was not estopped from pursuing its rent 

claim. Their contention is based on a 1987 letter from the 

Estate's counsel containing Joe Banderob's view that the lease was 

no longer in existence because of the unpaid rent payments. 

According to Neil and Martha, the Estate should be estopped from 

changing its position in 1990 by claiming a right to unpaid rent 

under the lease. 

The object of equitable estoppel is to prevent a party from 

taking unconscionable advantage of its own wrong while asserting 

its strict legal right. Matter of Shaw (1980), 189 Mont. 310, 316, 

615 P.2d 910, 914 (citation omitted). An essential element of 

equitable estoppel is that a party must detrimentally rely on 

another's conduct. King v. Rosebud County (1981), 193 Mont. 268, 

279, 631 P.2d 711, 717 (citing m, 615 P.2d at 914). The party 

claiming estoppel must act upon the other's representation in a 

manner that changes his position for the worse. Carroccia v. Todd 

(1980), 189 Mont. 172, 177, 615 P.2d 225, 228 (citation omitted). 

Here, Neil and Martha did not establish that they 

detrimentally relied on the 1987 letter from the Estate. Indeed, 

in response to the Estate's letter, Neil's attorney immediately 

communicated that the lease was still in effect and there were no 

23 
further communications in that regard. Neil and Martha continued 

to live and work on the ranch and receive income from it. We 

conclude, therefore, that the District Court did not err in 

rejecting Neil and Martha's estoppel theory. 

Finally, Neil and Martha contend that lathes bars the Estate's 

claim because the Estate failed to pursue a claim for rent during 

the period between 1986 to 1990. Lathes is an equitable concept 

which is applicable when there has been an unexplained delay of 

such a duration and character that would create an inequitable 

result if the asserted rights were enforced. Filler v. Richland 

County (1991), 247 Mont. 285, 290, 806 P.2d 537, 540 (citation 

omitted). Lathes is not applied due simply to elapsed time, but 

turns primarily on whether it would be inequitable to enforce the 

asserted claim; each case must be determined in light of its own 

particular circumstances. Filler, 806 P.2d at 540. 

Here, the lease is a written agreement between the parties 

which has remained in effect since it was executed in 1984. The 

first breach vis-a-vis nonpayment of rent occurred in September of 

1986. The statute of limitations for an action on a written 

agreement is eight years. Section 27-2-202(l), MCA. It is 

undisputed that the Estate counterclaimed for breach of the lease 

via unpaid rent in 1991, well within the time limit specified by 

the statute. When an action is filed within the applicable statute 

of limitations, the party claiming lathes must demonstrate that 

extraordinary circumstances exist requiring the application of 

lathes. In re Marriage of Hahn and Cladouhos (1994), 263 Mont. 

24 
315, 319, 868 ??.2d 599, 601 (citation omitted). 

Neil and Martha contend that the Estate waited to pursue its 

action for rent until the special use valuation agreement period 

was over and the Estate had saved $110,693 in taxes; under such a 

circumstance, they urge that allowing the Estate to enforce the 

lease would be inequitable. We fail to understand how a benefit to 

the Estate clearly contemplated by all who executed the special use 

valuation agreement, including Neil, can constitute such an 

extraordinary circumstance as to require the application of lathes 

to the Estate's timely pursuit of a remedy under the lease between 

the parties. This is particularly true in light of Neil's 

admissions that the lease remained in existence, that rent was not 

paid and that Neil and Martha continued to receive the benefits of 

the lease. Moreover, Neil and Martha do not challenge the District 

Court's finding that the Estate refrained from terminating the 

lease because Neil hoped to make the payments "when better times 

came. ‘I 

Neil and Martha have not demonstrated any extraordinary 

circumstances which would require the application of lathes to the 

Estate's timely claim. See Marriase of Hahn and Cladouhos, 868 

P.2d at 601. Nor, under the circumstances of this case, have they 

established any inequity resulting from requiring them to pay the 

rent the lease requires. We conclude that the Estate's claim for 

rent under the lease is not barred by lathes. 

6. Did the District Court err in concluding that Neil is not 

entitled to a set-off against rent owed, under the theory of 

unjust enrichment, for the Estate's tax savings from the 

25 
special use valuation agreement? 

Neil and Martha claimed that the Estate was unjustly enriched 

in the amount of the tax savings resulting from the special use 

valuation agreement because Neil operated the ranch during the 

special use valuation period. On that basis, they asserted 

entitlement to a set-off against rent owed for the $110,000 the 

Estate saved under the special use valuation agreement. 

The District Court found that Neil was aware of the Estate's 

intent to seek the special use valuation before he signed the 

lease, but included no provision in the lease allowing compensation 

to Neil and Martha--or less rent from them--upon his later 

execution of the agreement. Moreover, Neil freely entered into the 

special use valuation agreement, together with Frank's other heirs, 

some five months after the lease was executed. Under such 

circumstances, the District Court found no fault or misconduct by 

the Estate with regard to the special use valuation agreement. The 

court concluded that the existence of a written lease expressly 

stating the payment--and other--rights and responsibilities of the 

parties, and the absence of misconduct by the Estate, precluded 

recovery by Neil of the $110,000 estate tax savings under an unjust 

enrichment theory. 

Neil and Martha do not specifically contend that any of the 

District Court's findings of fact relating to the special use 

valuation agreement and their unjust enrichment claim are clearly 

erroneous. Instead, they advance conclusory statements such as 

7P[o]bviously they were put in a position of being taken advantage 

26 
of. . ." Neil and Martha also do not assert error with regard 

to the District Court's legal conclusions; indeed, they cite no 

legal authority in presenting this issue. 

As discussed under issue two above, plaintiffs seeking 

recovery under a theory of unjust enrichment must establish 

misconduct or fault of some kind by the defendant, or that the 

defendant took advantage of them. Brown, 432 P.2d at 390. Here, 

the District Court found no fault or misconduct by the Estate. We 

review that finding under the clearly erroneous standard. See 

Daines, 888 P.2d at 906. 

The evidence supporting the court's finding indicates that, at 

the time Neil executed the lease with the Estate in May of 1984, 

he knew that the Estate intended to seek the special use valuation 

agreement. With that knowledge, he chose to enter into the lease 

which contained certain express rental, and other, provisions. 

Some months later, Neil chose--together with Frank's other heirs-- 

to execute the special use valuation agreement which would result 

in estate tax savings to the ultimate benefit of the Estate and, 

therefore, the heirs. The upshot of these two transactions was 

that Neil made himself a party to two separate written agreements, 

each of which contained express terms relating to the subject 

matter of the agreement, and neither of which referenced or varied 

the terms of the other. The aim of the special use valuation 

agreement ultimately was achieved: the Estate benefited by saving 

approximately $110,000 in federal estate taxes. We conclude that 

the District Court's finding that the Estate was not at fault or 

27 
guilty of any misconduct by electing the special use valuation and 

not paying the tax savings to Neil is supported by substantial 

evidence. 

Neil's conclusory arguments in this regard essentially request 

us to determine that evidence exists to support a finding different 

from that made by the District Court or, in the alternative, to 

simply make our own finding that there was fault or misconduct by 

the Estate. Neither alternative is available under our standard of 

review of trial court findings. See Daines, 888 P.Zd at 906. It 

is the sole province of the trier of fact--here, the District 

Court--to weigh evidence and determine the credibility of 

witnesses; we will not substitute our judgment for that of the 

factfinder. & Masone, 892 P.2d at 544. We conclude that the 

District Court's finding of no fault or misconduct by the Estate is 

not clearly erroneous. 

On the basis of its finding that Neil had not established the 

necessary fault/misconduct by the Estate, the District Court 

concluded that Neil was not entitled to a set-off against rent 

owed, under the theory of unjust enrichment, for the Estate's tax 

savings from the special use valuation agreement. As set forth 

above, there can be no recovery under a theory of unjust enrichment 

absent demonstrated fault or misconduct by the defendant. See 

Brown, 432 P.2d at 390. We hold, therefore, that the District 

Court did not err in concluding that Neil was not entitled to the 

set-off under the theory of unjust enrichment. 

We affirm in part and reverse in part. As a result of the 

28 
partial reversal, we modify the judgment entered by the District 

Court by decreasing the judgment in favor of Neil Banderob to the 

amount of $1,900, decreasing the set-off against the accrued 

interest portion of the Estate's judgment to that amount and 

increasing the amount of the net judgment entered against Neil and 

Martha Banderob, and in favor of the Estate, accordingly. 

We concur: 

J,&strces 

29