No. 94-187

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

JERRY SWENSON,

Plaintiff and Appellant, NGV I- 1994

v.

GARY DeCOCK and LELA DeCOCK,

Defendants and Respondents.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

James J. Screnar, Angel, Screnar, Coil & Bartlett,

Bozeman, Montana

For Respondent:

William A. Schreiber, Belgrade, Montana

Filed:

Submitted on Briefs: September 22, 1994

Decided: November 1, 1994

clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Jerry Swenson appeals the decision of the Eighteenth Judicial

District Court, Gallatin County, in favor of Gary and Lela DeCock

in this landlord-tenant dispute. We affirm.

As reframed by this Court, the issues are:

1 . Did the District Court err in finding that

between Swenson (landlord) and the DeCocks (tenants

terminated?

the lease

') was not

2 . Did the District Court err in finding that the DeCocks

were not responsible for damage to a water hydrant?

3 . Did the District Court err in awarding attorney fees to

the DeCocks rather than to Swenson?

The DeCocks leased a lot in a mobile home park owned by

Swenson. The DeCocks paid the agreed rent from May through

November, 1992; however, their payments were late in May, June,

July and November of 1992. On March 9, 1993, Swenson served the

DeCocks with notice to pay the late charges incurred due to these

late payments within fifteen days or surrender possession of the

mobile home lot. The demand was for payment of late charges,

repair costs for a damaged water hydrant, and other unspecified

damages totaling $374. The DeCocks failed to respond within

fifteen days and Swenson instituted this action to recover the late

charges and repair costs and to evict the DeCocks from the mobile

home park.

The mobile home park rules, which are incorporated into the

parties' agreement by the lease instrument, list the late fee as $5

2
per month. Also, Gary and Lela DeCock testif ied that they believed

the late fee to be only $5 per month. The District Court found

that the DeCocks did not owe $374. The court found that the late

fee was $5 per month and the DeCocks had paid late on four months.

The court found that the DeCocks owed a total of $20 in late fees

and were not responsible for the costs of the hydrant repair. W e

will not disturb the District Court's findings if they are

supported by substantial credible evidence. Mehl v. Mehl (1990),

241 Mont. 310, 786 P.2d 1173. We conclude that the District

Court's finding that the DeCocks owed only $20 is supported by

substantial credible evidence.

Section 70-24-422(2), MCA, allows a landlord to evict a mobile

home tenant by providing fifteen-day notice after a tenant fails to

pay rent. However, a landlord must give correct notice to evict a

tenant pursuant to this statute. When Swenson served the DeCocks

with notice, the DeCocks' rent payments were current and they

merely owed $20 in late fees. Demanding $374, nearly twenty times

what was actually owed, did not constitute proper or correct

notice. Thus, the fifteen-day period did not begin to run. We

conclude the District Court properly quashed the eviction and

properly determined that the tenancy was not terminated.

Swenson also claims that the District Court erred in finding

that the DeCocks were not responsible for damage to the water

hydrant. The court's findings must be based on substantial

credible evidence. Mehl -I 786 P.2d at 1175. Gary DeCock testified

that the hydrant leaked when his family moved their mobile home

3
onto the lot. His two daughters, April and Brenda DeCock,

testified that they did not know how the hydrant became plugged and

denied making any admissions to Swenson concerning how the hydrant

became plugged. Swenson testified that while the hydrant was

located in the DeCocks' front yard, the hydrant's plumbing was not

connected to their mobile home unit. We conclude that the District

Court's decision that the DeCocks were not responsible for the

damage to the hydrant is supported by substantial credible

evidence.

Section 70-24-442, MCA, allows the District Court to award

reasonable attorney fees and costs to the prevailing party in a

rental agreement dispute. Based on our decision above, the DeCocks

were the prevailing party. We conclude the District Court did not

err in awarding attorney fees to the DeCocks rather than to

Swenson.

We affirm the decision of the District Court.

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

1988 Internal Operating Rules, this 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 the State Reporter and West Publishing Company.

Chief Justice
we concur:
November 1, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

James .I. Screnar

ANGEL, SC,RENAR, COIL & BARTLETT

125 West MendenhaIl

Bozeman, MT 59715

William A. Scheibner

Attorney at Law

5 North Broadway

Belgrade, MT 59714

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA