No. 84-344 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

LIC, INC., a corporation, 

Plaintiff and Respondent, 

-vsWILLIAM H. BALTRUSCH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Law Office of Frank Altman, Havre, Montana 

For Respondent : 

Smith & Rice; David G. Rice, Havre, Montana 

Submitted on Briefs: Nov. 20, 1984 

Decided: January 4, 1985 

JLI~ 4 . iU85 

Filed: 

-- Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant, William H. Baltrusch (Baltrusch) appeals the 

May 23, 1984, order of the Twelfth Judicial District Court, 

County of Hill, granting plaintiff, LIC, Inc.'s, motion for 

summary judgment in an action to recover damages from 

Baltrusch for unpaid rent. We affirm the order of the District Court. 

In March 1978, Baltrusch entered into a five-year commercial lease with M&M Enterprises for a store located in the 

Holiday Village Shopping Center, Havre, Montana. LIC, Inc., 

succeeded to M&M Enterprises' interest as landlord/lessor in 

1980. Baltrusch leased the premises to provide his daughter, 

Cheryl Allgood, with a location in which to operate a children's clothing store. 

Cheryl operated the clothing store from 1978 until the 

summer of 1982. Prior to August 1982, Cheryl paid to L,IC, 

Inc., monthly rent in the amount of $612.50, common area 

maintenance of $60.94 and a security payment of $30.63, for a 

monthly total of $704.07. In addition, merchant dues in the 

amount of $91.88 were paid quarterly by Cheryl Allgood. 

Whether or not Cheryl paid the July 1982 rent is disputed. 

A going-out-of-business sale was held by Cheryl at the 

end of August 1982, and the clothing store closed a.s of 

September 1, 1982. On September 7, 1982, the mana.ger of 

Holiday Village Shopping Center entered the premises with his 

key. The store was virtually empty, with only what he considered to be fixtures remaining. Cheryl Allgood stated in 

an affidavit that there were numerous items remaining in the 

store as of September 7, 1982. They consisted of trade 

fixtures and some personalty. 
John Hathaway, Vice President and property manager for 

LIC, Inc., sent to Baltrusch on September 8, 1982, a letter 

giving notice of the delinquent rent and Cheryl's failure to 

pay the rent, a request that Baltrusch pay the rent and a 

statement that pursuant to Article 25 of the lease agreement, 

LIC, Inc., would be attempting to find another tenant for the 

space. 

The locks on the premises were changed, per Hathaway's 

orders, on September 20, 1982. Then, on October 20, 1982, 

LIC, Inc., brought this action against Baltrusch to recover 

damages for unpaid rent. 

On October 29, 1982, Baltrusch demanded by letter that 

LIC, Inc., return possession of the premises to him. That 

demand was denied. Baltrusch filed an answer and 

counter-compl-aint on March 18, 1983, alleging that LIC, Inc., 

was in illegal and unlawful detainer of the premises and 

requesting treble damages. Counter motions for summary 

judgment and supporting affidavits were filed by both sides. 

A hearing was held on those motions February 17, 1984. LIC, 

Inc.'s, motion was granted May 23, 1984, and judgment was 

entered for LIC, Inc., in the amount of the rent for the 

remaining lease term, $10,678.82 plus $1,291.99 in attorney's 

fees. 

On appeal, Baltrusch presents two major issues for 

review: 

1. Whether the District Court erred in granting LIC, 

Inc. Is, motion for summary judgment for the unpaid rent; and 

2. Whether the District Court erred in denying 

Baltrusch' s summary judgment motion for forcible or unlawful 

detainer. 

Specifically, Baltrusch argues that LIC, Inc., resumed 

possession of the premises on September 7, 1982; that 
Baltrusch had not abandoned the premises at that time; and 

that, therefore, LIC, Inc., was required to give Baltrusch 

three days' notice prior to repossessing, pursuant to 

5 70-27-106, MCA. Since LIC, Inc., failed to give notice, it 

was in unlawful possession of the premises. Thus, when LIC, 

Inc., refused Baltrusch's demand to return possession of the 

premises to him, it was guilty of forcible or unlawful 

detainer and Baltrusch is entitled to treble damages. See 

SS 70-27-103 and 70-27-206, MCA. 

We agree with Baltrusch's contention that there is 

little, i.f any, evidence to show abandonment of the premises. 

Abandonment is an absolute relinquishment of premises by a 

tenant. It consists of both an act or omission and an intent 

to abandon. Tuschoff v. Westover (Wash. 1964), 395 P.2d 630, 

632. A sub-tenant's vacation of the premises in no way 

indicates an intent on the part of the tenant to abandon. 

Riggs v. Murdock (Ariz. 1969), 458 P.2d 115, 118-119. 

However, a finding of abandonment is not necessary. The 

lease itself is dispositive. 

Article 25 of the subject lease states: 

"LESSEE OBLIGATED FOR RENTS 

"It is mutually agreed that in case said premises 

are left vacant and/or any part of the rent herein 

reserved be due and unpaid, then the Lessor may, 

without in anyway being obliged so to do, and 

without terminating this lease, retake possession 

of said premises and rent the same for such rent, 

and upon such conditions as the Lessor may think 

best, making such changes and repairs as may be 

required, giving credit for the amount of rent so 

received less all expenses of such changes and 

repairs and said Lessee shall be liable for the 

balance of the rent herein reserved until the 

expiration of this lease. Lessor, may, at his 

option terminate this lease if said premises are 

left closed for business or vacant by the Lessee 

for longer than five (5) days. Such termination, 

however, does not prejudice Lessor's right to 

recover the balance of any rental or other payments 

then due or to pursue any other remedy hereunder or 

by law provided. Any property of Lessee remaining 

in the leased premises, maybe (sic) removed 
therefrom by the Lessor and stored at Lessee's 

expense. " (emphasis supplied) . 

The store was both closed for business and vacant for at 

least five days prior to September 7, 1982. The rent had not 

been paid for at least two months. Thus, LIC, Inc., was 

entitled, pursuant to its lease with Baltrusch, to reenter 

and relet the premises. 

Baltrusch further contends that he was not given proper 

notice of LIC, Inc. Is, intent to reenter the premises. We 

cannot agree. Section 70-27-106, MCA, states: 

"Reentry - when and how to be made. Whenever the 

right of reentry is given to the grantor or lessor 

in any grant or lease or otherwise, such reentry 

may be made at any time after the right has 

accrued, upon 3 days' notice, as provided in this 

chapter. " 

LIC, Inc.'s, right to reenter accrued no later than September 

6, 1982, five days after the store was vacated. A letter was 

mailed to Baltrusch on September 8, 1982, detailing the 

amount of rent owed and LIC, Inc. ' s, intention to find a new 

tenant. Mailing of the letter was proper under Article 34 of 

the lease, which provides that all notices shall be mailed to 

the parties at their respective post office box numbers. The 

contents of the letter left no doubt regarding either 

Baltrusch's position or LIC, Inc.'s, demands. 

Baltrusch apparently made no effort to bring the rent 

payments current and LIC, Inc., took legal possession of the 

premises on September 20, 1982, more than three days after 

giving the notice required by statute. 

Baltrusch argues that LIC, Inc., actually took 

possession of the premises on September 7, 1982. We cannot 

agree. On September 7, the shopping center's manager used 

his key to enter the premises only to determine for John 

Hathaway the use of the premises by Baltrusch. It was not 

until September 20, 1982, that LIC, Inc., actually 
repossessed the premises by changing the locks. Since LIC, 

Inc., legally repossessed the premises, there is no basis for 

either a forcible or an unlawful detainer action. The trial 

court properly denied Baltrusch's motion for summary judgment 

on that issue. 

Baltrusch breached his lease agreement with LIC, Inc., 

both when he failed to pay several months rent a.nd when he 

allowed the premises to remain vacant for more than five 

days. The order of the trial court awarding LIC, Inc., 

damages in the amount of the rent remaining on the lease and 

attorney's fees is affirmed. 

We concur: 

%44,(&q& 

Chief Justice ' 

Justices 
Mr. Justice L. C. Gulbrandson, dissenting. 

I respectfully dissent to that portion of the majority 

opinion affirminq the order of the trial court granting 

summary judgment to the plaintiff. 

The trial judge found, in his finding of fact no. 11, 

as follows: 

"That since prior to September 1, 1982, 

and thereafter, the Defendant has not 

occupied or used the premises so as to be 

deemed in possession - and in fect had 

abandoned them prior to the-plaintif= 

initial entry." (Emphasis added.) 

The ma.jority has n.ow found that the finding of 

aba-ndonment was erroneous but that such a finding was not 

necessary and that the lease itself is "dispositive." 

I disagree with that position on the basis that, if 

there was no abandonment by the defendant, then there remains 

a factual dispute as to whether the required notice, under 

the statute or under the lease, was given by the plaintiff. 

The majority cites Article 34 of the Lease as providing that 

mailed notice is appropriate. I wculd agree if the 

affidavits , admissions or answers to interrogatories showed 

that the mailed notice was sent by reqistered mail, as 

required by Article 34, or if there was proof of actual 

receipt of legally sufficient notice. 

The majority goes on to state : "Thus, LIC , Inc . , was 

entitled, pursuant to its lease with Baltrusch, to terminate 

that lease and to reenter the premises." (Emphasis added.) 

Although the judgment for plaintiff is being affirmed, that 

statement by the majority will surprise counsel for plaintiff 

who clearly took the position that the plaintiff was not 
terminating the lease. During oral argument, counsel for 

plaintiff stated as follows : 

"And the court can see that the plaintiff 

was not willing to fall into that trap at 

that time and indicate that these 

premises were being repossessed. 

Probably for the fear that we are not 

talking about a terminati~~ OF this 

lease. ~rticlc 25 has a cou~le .. of 

different possi-bil-ites. One is retake 

the property, hold it, continue to hold 

the tenant liable for rent. Another one 

is to terminate the lease by some action, 

and cut off the defendant's requirement 

or the tenant's requirement to pay rent. 

-- We were certainly not going to --- fall into 

that situation --- and have it alleged that 

-- we have terminated the lease." (Emphasis 

added. 

In view of plaintiff's answer to defendant's 

interogatory that the plaintiff "took control of [the 

premises] on or about September 7, 1982" and the conflicting 

statements in his affidavits, I would remand for trial on the 

issue of whether the defendant is liable for rents due after 

September 7, 1982.