NO. 95-217 INTHESUPREME

COURTOFTHESTATEOFMONTANA 1996

Defendant, Third Party Plaintiff, Respondent andCross-Appellant,

v. MARTHABANDEROB,

Third Party Defendant andAppellant.

APPEALFROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, TheHonorable Russell K. Fillner, Judge presiding.

COUNSELOFRECORD:

For Appellant: Terry L. Seiffert, Attorney at Law, Billings, Montana For Respondent: Mark E. Noennig; Hendrickson, Everson, Noennig & Woodward, Billings, Montana

Filed: Submitted onBriefs: September 7, 1995 Decided: February 6, 1996Justice Karla M.Gray delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana SupremeCourt 1995Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished byits filing asapublic document with the Clerk of the SupremeCourt andbyareport of its result to Montana LawWeek, 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, andthe Estate of Frank Banderob (Estate) cross-appeals, from the award to Neil of limited damagesin his action against the Estate. Neil andMartha Banderob appeal the award of damagesto the Estate

on its breach of lease claim. Weaffirm in part and reverse in part. Weaddress 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 nojoint venture existed? 4. Did the District Court err in awarding Neil compensation for his services andimprovements to the property? 5. Did the District Court err in concluding that Neil and Martha Banderob owedrent payments to the Estate? 6. Did the District Court err in concluding that Neil is not entitled to aset-off against rent owed, under the theory of unjust enrichment, for the Estate's tax savings from the special use valuation agreement? 2FACTUALANDPROCEDURAL BACKGROUND Neil Banderob (Neil) is oneof 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 andwork onthe ranch for most of his life. Over the years, Neil purchased equipment andsupplies for the ranch and paid for repairs onranch equipment. Noexpress agreement, either oral or written, existed between Neil and Frank pursuant to which Neil waspaid 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 roomandboard, spending money, a share of veterinary bills, and a contribution toward insurance and licensing. Frank also provided Neil with cattle, grain andpigs, andthe use of ranch pasture andequipment. Neil did custom ranch work for others in addition to his work onFrank's ranch.In 1981, Neil and his attorney met with Frank and Frank's attorney in aneffort to obtain "justice" for Neil's contributions

on the ranch. Neil hoped that Frank would "make it right," but acknowledged that it wasFrank's decision. Frank never agreed to any change andNeil continued onat the ranch asbefore. Frank died in 1982, leaving a 1978 will that devised his estate equally among his four children and designated Neil's brothers Joe andNorman as co-personal representatives. OnJune

18, 1982, Neil filed a creditor's claim with the Estate for approximately $175,000 for labor, equipment, supplies, andrepairs. 3The Estate rejected his claim. Neil filed this action based on

agreement or quantum meruit soonthereafter, seeking compensation for labor, equipment, supplies and repairs, and for the appreciation in value of the property which resulted from improvements hemade. Effective January 1, 1984, Neil andhis wife Martha leased the ranch from the Estate for oneyear. The lease was automatically renewable eachyear unless terminated in writing six months prior to the endof the year. Annual rent was$11,001.25, to bepaid in equal installments of $5,500.63 onJanuary 1andSeptember 15each year. Prior to any termination of the lease based ondefault by Neil andMartha, the Estate wasrequired to serve awritten 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 RevenueCode. Suchanagreement reduces the valuation of property for estate tax purposes, provided that a family member materially participates in its operation for 10years. TheEstate saved approximately $110,000 in federal estate taxes asaresult of the agreement. Neil did not renegotiate any lease provisions in exchange for signing the special usevaluation 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 aletter to Neil andMartha stating that, because they had failed to pay the rent, it appeared that the lease was no longer in effect. Neil and

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

OnSeptember 28, 1990, the Estate gave Neil andMartha a90- day notice of default relating to their failure to make rent payments. After Neil andMartha failed to cure the default, the Estate filed acounterclaim in this action alleging breach of the lease and failure to cure default, andseeking accrued andunpaid 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 andConservation Service payment modifications. TheEstate mailed Neil andMartha asecond notice of default

onMay8, 1992, whenit discovered that Neil wasasserting adefect regarding the earlier notice. Thereafter, the District Court allowed the Estate to file anamendedpleading reciting the new default notice and requesting declaratory relief in the event the default wasnot timely cured. Alternatively, andin 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 useandoccupation of the ranch beginning January 1, 1986. Martha wasadded asathird party defendant. TheDistrict Court held abench trial and, thereafter, entered extensive findings of fact andconclusions of law. With regard to Neil's claims against the Estate, the court concluded that Neil

5consented to the compensation he received asfull payment for his

services andsupplies 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 andMartha hadbreached the lease byfailing to pay rent. It entered judgment for the Estate in the amount of $114,277.45 in delinquent lease payments and interest, aswell as lease payments accruing until the lease is terminated andthe 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 andMartha. Neil andMartha appeal andthe Estate cross-appeals. STANDARD

OFREVIEW Wereview adistrict court's findings of fact under athreepart test to determine whether they are clearly erroneous. Daines

v. Knight (1995), 269 Mont. 320, 324-25, 888 P.2d 904, 906 (citations omitted). Afinding of fact is clearly erroneous if it is not supported by substantial evidence or, if sosupported, the district court misapprehended the evidence or this Court is left with the definite and firm conviction that amistake has been committed. Daines, 888 P.2d at 906. We review a court's

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

888P.2d at 906.

DISCUSSION 1. Did the District Court err in concluding that Neil consented to the compensation hereceived?

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 hopedto negotiate apurchase of the ranch, noagreement was reached and Frank did not promise Neil that hewould receive the ranch whenFrank died. TheDistrict Court determined that Neil wasboundbyhis admission that the only agreement between Neil and Frank wasthat 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 andFrank

are clearly erroneous. Heargues that the District Court erred as

amatter 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 andbenefits received asfull payment. Healso asserts that the cases relied onbythe court are distinguishableontheir 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, sofar asthe facts

are known or ought to beknown to the person accepting." Neil's first contention is that he accepted--and consented to--the compensation andbenefits Frank provided based onan "impression"

or "anticipation" that the ranch ultimately would behis. Thus, according to Neil, hedid not knowof the "fact" that hewould not inherit the ranch and, asaresult, his acceptance andconsent do not preclude recovery for his labor andother contributions to the ranch.Theproblem with Neil's contention is that it is not supported byeither the stipulated facts or the evidence presented at trial. Neil stipulated to the fact that nospecific agreement entitled him to wages or reimbursement for ranch-related purchases. Healso stipulated that, whenhis mother died in 1975, hesigned papers at his father's request transferring property from his mother's name to his father's name. Hefurther agreed that hetried 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 "makeit right." In addition, asfound bythe court andnot challenged byNeil, Neil's effort to negotiate a purchase of the ranch was not successful. Nor did Frank ever promise Neil that hewould receive

8the ranch whenFrank died. Simply stated, andasthe 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 hewould receive it after Frank's death, no agreement wasreached. Theevidence also is clear that, while Neil could have left the ranch at any time, he chose not to do so; indeed, Neil stayed onat 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 behis someday if he "stuck it out. " This argument essentially requests usto determine that the District Court erred in failing to make additional findings--in Neil's favor--and, based onsuch additional findings, to conclude that hedid 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.

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

District Court--to weigh evidence anddetermine the credibility of witnesses, andwewill not substitute our judgment for that of the factfinder. Magonev. Froehlich (1995), 270Mont. 381, 387, 892 P.2d 540, 544 (citation omitted). Wecannot conclude asamatter of law that, for purposes of 528-Z-503(2), MCA,Neil established his lack of knowledge of material facts regarding the compensation andbenefits heaccepted andto which heconsented. Neil's second contention is that the District Court erred in relying onStone-Ordean-Wells Co. v. Anderson (19231, 66Mont. 64, 212P. 853, andCook-Reynolds v. Beyer (1938), 107Mont. 1, 79P.2d 658, because those cases involved written agreements. Weagree 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. Evenassuming that the cases relied onby the District Court

were inapplicable, however, Neil presents no authority which supports his position, andwehave located none. Onthe basis of the record before us, wecannot 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 aright to recover the value of his services, expenditures anduseof his equipment in the ranch operations under the theory of quantummeruit. TheDistrict Court concluded that no 10quantum meruit recovery wasavailable to Neil.

"Quantum Meruit" as anamount of recovery simply means "asmuchasdeserved, "andmeasures the recovery under an implied contract to pay compensation as the reasonable value of services rendered. Lutey Construction-The Craftsman v. State (19931, 257Mont. 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 andRehabilitation Services (19791, 182Mont. 80, 85, 595P.2d 379, 382 (citation omitted). To establish an implied contract based on unjust enrichment, the plaintiff must demonstrate misconduct or fault of somekind bythe 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 andthat, by staying onat the ranch under those circumstances Neil consented to the compensation he received, the District Court determined that noimplied contract to payadditional compensation existed. Thecourt relied onSt. James Communitv HosDital in concluding that animplied promise to payfor 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 11premised onthe existence of aspecific contract to pay, andheis

correct that awritten contract existed in St. James Community Hospital. & St. JamesCommunitv Hosoital, 595P.2d at 381. On the other hand, our conclusion in St. JamesCommunitv 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 amountormanner--is not expressly limited to situations involving written agreements topay. St. JamesCommunitv Hospital, 595 P.2d at 382. Neil offers noanalysis based oneither law or logic in support of such alimitation. Weconcluded above that the District Court did not err in determining that Neil consented to the compensation he received. That consent created anagreement between Neil andFrank that Neil would accept the amount of moneyandother benefits Frank provided

aspayment for his services andother contributions to the ranch. Onthat basis, and pursuant to St. JamesCommunitv Hospital, we conclude that no implied promise to pay the value of Neil's contributions exists here asamatter of law. Neil argues that the evidence showsthat Frank took advantage of him and, therefore, that hemet the Brown requirement that a plaintiff demonstrate misconduct or fault bythe defendant, or that the defendant took advantage of the plaintiff. SeeBrown, 432P.2d at 390. Where, ashere, the law will not imply apromise to pay because anagreement to pay aparticular amount or in aparticular

manner exists, weneedgonofurther in our analysis of aparty's entitlement to recovery under quantum meruit. Therefore, we

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

requirement. Wehold 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? Asanalternative theory of recovery against the Estate, Neil asserted the existence of ajoint venture between himself andFrank for the operation of the ranch from 1955to 1982. Thedefinition of ajoint venture has remained unchanged in Montana for over fifty years. Ajoint 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 hasalso beendefined, somewhatvariantly, as aspecial combination of persons undertaking jointly some specific adventure for profit." Wiesner v. BBDPartnership (1993), 256 Mont. 158, 162, 845 P.2d 120, 123 (quoting Sunbird Aviation, Inc. v. Anderson (1982), 200 Mont. 438, 444, 651P.2d 622, 625 (quoting Raev. Cameron (1941), 112Mont. 159, 167, 114P.2d 1060, 1064-65)). Four elements must be satisfied in order to establish the existence of ajoint venture: 1) anexpress or implied agreement or contract creating the joint venture; 2) acommonpurpose amongthe parties; 3) acommunity of interest; and 4) anequal right of control. Wiesner, 845 P.2d at 123 (citation omitted). A joint venture 13arises only when the intention of the parties to associate

themselves in this manner is clearly manifested. Bender v. Bender (1965), 144Mont. 470, 480, 397P.2d 957, 962 (citations omitted). The District Court entered findings with regard to the elements which mustbesatisfied byaparty 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 anyof the required elements for ajoint venture, andform the basis for the court's conclusion that nojoint venture existed

asamatter of law. Neil purports to rely onthe Wiesner principle that the agreement to create ajoint venture maybe inferred from the parties' conduct or the surrounding circumstances and, onthat basis, argues legal error by the court. His position, however, essentially requests this Court to makefindings different from those madeby 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 besuccessful. There is noquestion 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 andweare not left with adefinite and

14firm conviction that amistake hasbeencommitted. SeeDaines, 888

P.2d at 906. Neil asserts that hesatisfied the first--and, indeed, every-- element required to establish the existence of ajoint venture. His arguments consist of conclusory statements that "the facts clearly reflect that [he] in fact did meet all of the elements of

ajoint venture" andthat "the conduct of the parties from 1955to 1982clearly reflected they wereacting in unison to keepthe ranch in operation." Suchassertions ignore our standard in reviewing a district court's findings of fact. Wewill not substitute our judgment for that of the finder of fact by reweighing evidence and redetermining the credibility of witnesses. SeeMaqone, 892P.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 ajoint venture (seeWiesner, 845P.2d at 1231, these findings provide asufficient 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 ajoint venture. Weconclude that the District Court did not err in concluding that nojoint venture existed.

154. Did the District Court err in awarding Neil compensation

for services and improvements to the property? TheDistrict Court awarded Neil $1,640 as full compensation for his services, including contributions of equipment and supplies, together with 6%simple interest, for atotal of $19,283. The court also awarded Neil $10,000, as a set-off against rent owed, for the contributory value of improvements madeto 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 asaranch hand. TheEstate cross-appeals from both monetary awards to Neil. Regarding the award for services, the Estate argues that nobasis for anyaward for services remained after the court properly rejected Neil's quantum meruit andjoint venture theories. Regarding the award on Neil's claim for the contributory value of repairs andimprovements hemadeonthe ranch during the lease, the Estate contends that noaward is available as

amatter of law where the property did not increase in value asa result of the improvements. Weaddress the Estate's cross-appeal first, looking at each of these awards in turn. Weconcluded above that the District Court did not err in determining that Neil consented to the compensation and benefits Frank provided for his services. Wealso concluded that the court did not err in determining that Neil could not recover compensation for his services to the ranch based on either aquantum meruit recovery or the existence of a joint venture. Wenote, in 16addition, that the District Court entered afinding of fact that

"[blenefits paid to Neil for his work onthe ranch from 1955 to 1982were equal to the reasonable value of his services." Because

nolegal basis remained uponwhich anaward for Neil's services on the ranch properly could bepremised, weconclude that the District Court erred in awarding Neil $1,640 as compensation for his services asaranch hand, including his contributions of equipment andsupplies. Theparties also dispute the nature andlegal 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

aconversion 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 anagreement in writing under §31-l-107, MCA,or prejudgment interest under §27-1-211, MCA. Weneed 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, basedonour conclusions on this cross-appeal issue that the District Court erred in awarding Neil both the $1,640 for services andthe $17,643 as interest, we neednot address Neil's argument that the court erred in relying on the Estate's expert to minimize the amount of his award.

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

Neil of $10,000, for improvements hemadeto the ranch during the lease, asaset-off against rent owed. Thecourt entered findings that the value of the ranch was enhanced by $10,000 because of Neil's improvements andthat the Estate was unjustly enriched in that amount. Thereafter, relying onOvercast v. Akra (1982), 197 Mont. 276, 642P.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 hadnot 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 madeto the ranch. In Overcast, the lessee madeimprovements to the land in hopes of eventually purchasing it. Whenthe 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, 642P.2d at 1062. Weheld that a lessee maynot recover for makingpermanent improvements unless the improvements enhance the property's value; stated differently, "if the tenant has not madethe premises morevaluable to the owner,

18the owner hasnoobligation tomakecompensation, however great the

expenditures mayhavebeen." Overcast, 642P.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 adecrease 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 mayhave 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. TheEstate "has noobligation to makecompensation, however great the expenditures mayhavebeen" for improvements that did not increase the value of the ranch or for repairs that were the tenant's duty under the lease. & Overcast, 642P.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 asmuchas$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

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

ranch. Furthermore, the District Court correctly concluded that Neil andMartha are not entitled to compensation for repairs which

were their duty under the lease. Additionally, the expert rounded his maximumincrease invalue of the ranch upto $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 andthe $10,000 award. Weconclude that the District Court's finding that Neil's improvements increased the value of the ranch by$10,000 is clearly

erroneous andthat substantial evidence supports a$1,900 increase in value to the ranch as a result of permanent improvements by Neil. Wefurther conclude that the court correctly determined, pursuant to Overcast, that Neil wasnot entitled to recover for repairs or improvements which did not increase the value of the ranch. Wehold that the court erred in including in its judgment the $10,000 for improvements; wealso hold, however, that Neil is entitled to judgment in the amountof $1,900 for such improvements.

5. Did the District Court err in concluding that Neil and Martha owedrent payments to the Estate? In its counterclaim and third party complaint, the Estate alleged that Neil andMartha breached the lease byfailing to make the rent payments, andsought recovery of the unpaid rental amounts and interest thereon. Basedonits findings that Neil andMartha 20failed to makethe rental payments required by the lease andthat

the lease does not require anotice 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 andMartha's failure to cure the defaults of which they were given notice andthat anyerror in the first notice of default was cured by the second notice which Neil received and Martha was presumed to have received. Neil andMartha donot 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 owedand the second notice wasnot "served" on them, the Estate is precluded from pursuing its claim for rent. Weneednot address Neil andMartha's argument regarding the sufficiency of the default notices, however, given the court's unchallenged separate determinations that they breached the lease andthat the lease did not require the Estate to give notice of default before pursuing a breach action based onfailure 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 aninety (90) daywritten notice to the Tenants of the Tenants' failure

21to fulfill the terms of this rental agreement, specifying

the exact default, andthe 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 andto take full possession of the farm and buildings

. . . . This provision establishes the necessity of ago-day written notice of default andanopportunity 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. Theclaim pursued bythe Estate is aclaim for rent owedbyNeil andMartha under the lease. Thus, the District Court's finding that the lease doesnot require

a notice of default before a claim for rent maybe pursued is supported bythe language of the lease. Moreover, Neil andMartha admitted, andthe court found accordingly, that they failed to make the rent payments asalleged 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, 175Mont. 248, 255, 573 P.2d 649, 653 (citation omitted). Although Hill involved distinguishing whenrent wasdueunder alease from whenunlawful detainer entitles alandlord 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 wasnever terminated byeither party; indeed, Neil

22admitted at trial that the lease wasstill in existence. Wehold,

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 andMartha also contend that the District Court erred in concluding that the Estate wasnot estopped from pursuing its rent claim. Their contention is based on a 1987 letter from the Estate's counsel containing JoeBanderob's view that the lease was

no longer in existence because of the unpaid rent payments. According to Neil andMartha, the Estate should be estopped from changing its position in 1990by claiming a right to unpaid rent under the lease. The object of equitable estoppel is to prevent aparty from taking unconscionable advantage of its ownwrong while asserting its strict legal right. Matter of Shaw(1980), 189Mont. 310, 316, 615 P.2d 910, 914 (citation omitted). Anessential element of equitable estoppel is that a party must detrimentally rely on another's conduct. King v. Rosebud County (1981), 193Mont. 268, 279, 631 P.2d 711, 717 (citing m, 615P.2d at 914). Theparty claiming estoppel must act upon the other's representation in a

manner that changes his position for the worse. Carroccia v. Todd (1980), 189Mont. 172, 177, 615P.2d 225, 228 (citation omitted). Here, Neil and Martha did not establish that they detrimentally relied onthe 1987 letter from the Estate. Indeed, in response to the Estate's letter, Neil's attorney immediately communicated that the lease wasstill in effect andthere were no

23further communications in that regard. Neil andMartha 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 andMartha's estoppel theory. Finally, Neil andMartha contend that lathes bars the Estate's claim because the Estate failed to pursue aclaim for rent during the period between 1986 to 1990. Lathes is anequitable concept which is applicable whenthere 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 duesimply to elapsed time, but turns primarily onwhether it would be inequitable to enforce the asserted claim; each case must bedetermined in light of its own particular circumstances. Filler, 806P.2d at 540. Here, the lease is awritten agreement between the parties which has remained in effect since it wasexecuted 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. Whenanaction 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 HahnandCladouhos (1994), 263 Mont.

24315, 319, 868??.2d599, 601 (citation omitted).

Neil andMartha contend that the Estate waited to pursue its action for rent until the special use valuation agreement period

wasover andthe Estate had saved $110,693 in taxes; under such a circumstance, they urge that allowing the Estate to enforce the lease would beinequitable. Wefail to understand howabenefit to the Estate clearly contemplated byall whoexecuted the special use valuation agreement, including Neil, can constitute such an extraordinary circumstance asto require the application of lathes to the Estate's timely pursuit of aremedy under the lease between the parties. This is particularly true in light of Neil's admissions that the lease remained in existence, that rent wasnot paid andthat Neil andMartha continued to receive the benefits of the lease. Moreover, Neil andMartha donot challenge the District Court's finding that the Estate refrained from terminating the lease because Neil hoped to makethe payments "whenbetter 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 Hahnand 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. Weconclude 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 aset-off against rent owed, under the theory of unjust enrichment, for the Estate's tax savings from the 25special use valuation agreement?

Neil andMartha claimed that the Estate wasunjustly 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 aset-off against rent owedfor the $110,000 the Estate saved under the special usevaluation agreement. TheDistrict Court found that Neil wasaware of the Estate's intent to seek the special use valuation before he signed the lease, but included noprovision 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 usevaluation agreement, together with Frank's other heirs,

some five months after the lease was executed. Under such circumstances, the District Court found nofault or misconduct by the Estate with regard to the special usevaluation agreement. The court concluded that the existence of awritten lease expressly stating the payment--and other--rights andresponsibilities of the parties, and the absence of misconduct by the Estate, precluded recovery byNeil of the $110,000 estate tax savings under anunjust enrichment theory. Neil andMartha donot specifically contend that any of the District Court's findings of fact relating to the special use valuation agreement andtheir unjust enrichment claim are clearly

erroneous. Instead, they advance conclusory statements such as 7P[o]bviously they were put in aposition of being taken advantage

26of.

. ." Neil andMartha also donot 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 somekind by the defendant, or that the defendant took advantage of them. Brown, 432 P.2d at 390. Here, the District Court found nofault ormisconduct bythe Estate. We review that finding under the clearly erroneous standard. See Daines, 888P.2d at 906. Theevidence supporting the court's finding indicates that, at the time Neil executed the lease with the Estate in Mayof 1984, heknewthat the Estate intended to seek the special usevaluation agreement. With that knowledge, hechose to enter into the lease which contained certain express rental, and other, provisions. Somemonths 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 madehimself aparty to two separate written agreements, each of which contained express terms relating to the subject matter of the agreement, andneither of which referenced or varied the terms of the other. The aim of the special use valuation agreement ultimately wasachieved: the Estate benefited by saving approximately $110,000 in federal estate taxes. Weconclude that the District Court's finding that the Estate wasnot at fault or

27guilty of anymisconduct byelecting the special usevaluation and

not paying the tax savings to Neil is supported by substantial evidence. Neil's conclusory arguments inthis regard essentially request

usto determine that evidence exists to support afinding different from that madeby the District Court or, in the alternative, to simply makeour ownfinding that there wasfault or misconduct by the Estate. Neither alternative is available under our standard of review of trial court findings. SeeDaines, 888P.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; wewill not substitute our judgment for that of the factfinder. & Masone, 892 P.2d at 544. Weconclude that the District Court's finding of nofault ormisconduct bythe Estate is not clearly erroneous. Onthe basis of its finding that Neil hadnot 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 canbenorecovery under atheory of unjust enrichment absent demonstrated fault or misconduct by the defendant. See Brown, 432 P.2d at 390. Wehold, therefore, that the District Court did not err in concluding that Neil wasnot entitled to the set-off under the theory of unjust enrichment. Weaffirm in part and reverse in part. Asa result of the

28partial reversal, wemodify the judgment entered by the District

Court bydecreasing 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.

Weconcur:

J,&strces

29