No. 84-344 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

LIC, INC., a corporation, Plaintiff and Respondent,

-vsWILLIAM H. BALTRUSCH, Defendant and Appellant.

APPEAL FROM: DistrictCourtof theTwelfthJudicial District, In and for the Countyof Hill, The HonorablePeterL. Rapkoch, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: Law Officeof FrankAltman, Havre, Montana

For Respondent: Smith & Rice; David G. Rice, Havre, Montana

Submittedon Briefs: Nov. 20, 1984 Decided: January 4, 1985 

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-- ClerkMr. 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 DistrictCourt. In March 1978, Baltrusch entered into a five-year commercial leasewith 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 thepremises toprovide 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 securitypayment 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 therewere numerous items remaining in the store as of September 7, 1982. They consisted of trade fixtures and somepersonalty.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 statementthatpursuant 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-aintonMarch 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 filedby 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; thatBaltrusch 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.fany, evidence to show abandonmentof thepremises. Abandonment is an absolute relinquishment of premises by a tenant. Itconsistsofboth an act or omission and an intent to abandon. Tuschoffv. 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 isdispositive. Article 25 of the subject lease states: "LESSEEOBLIGATED FOR RENTS "Itismutually agreed that in case saidpremises are leftvacant and/or 

### anypart of the rent herein reserved be due and unpaid,then the Lessormay, without in anyway being obliged so to do,and without terminating this lease,retake possession of saidpremises 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 thebalance of any rental or other payments then due or topursue any other remedy hereunder or by law provided. Any property of Lessee remaining in the leased premises, maybe (sic) removedtherefrom by the Lessor and stored at Lessee's expense.

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# . The storewasboth closed for business and vacant for at least fivedaysprior to September 7, 1982. The renthad 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 cannotagree. 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 reenteraccrued no later than September 6,1982, fivedays after the storewasvacated. A letterwas 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 letterwasproper under Article 34 of the lease,which provides that allnotices shall be mailed to theparties at their respective post officebox 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 thenotice 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., actuallyrepossessed the premises by changing the locks. Since LIC, Inc., legally repossessed the premises, there is no basis for either a forcibleor an unlawful detainer action. The trial courtproperly 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.ndwhen 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 isaffirmed.

We concur: 

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JusticesMr. Justice L. C. Gulbrandson,dissenting.

I respectfully dissent to that portion of themajority opinion affirminq the order of the trial court granting summary judgmentto theplaintiff. 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 orused thepremises so as tobe deemed in possession and in fect had 

## - abandoned them prior to the-plaintif= initial entry." (Emphasisadded.) The ma.jority has n.ow found that the finding of aba-ndonmentwas 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 therewas no abandonmentby thedefendant, 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 asproviding 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 receiptof legally sufficientnotice. 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." (Emphasisadded.) Although the judgment for plaintiff is being affirmed, that statementby the majority will surprise counsel forplaintiff who clearly took the position that the plaintiff was notterminating 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~leof



## .. 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 leaseby 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 inhis affidavits, Iwould remand fortrial on the issue of whether the defendant is liable for rents due after September 7, 1982.