### NO. 14452 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

CARL B. CHAMBERLAIN and HERTHA A. CHAMBERLAIN, husband and wife, Plaintiffs and Appellants,



### L. E. EVANS et al., Defendants and Respondents.

Appeal from: ~istrictCburt of the Eighth ~udicial District, Honorable B. 

### W. Thomas, Judge presiding. Counsel of Record: For Appellants: Stacey and 

### Nye, Billings,Montana Jerrold 

### L. Nye argued, Billings, Montana For Respondents: Swanberg, Koby, Swanberg and Matteucci, Great Falls,

Montana Raymond F. 

### Koby, Jr. argued, Great Falls, Montana

Submitted: February 6, 

### 1979



## ; - 

## 1~33 Filed:Mr. 

### Justice Gene B. 

### Daly delivered the Opinion of the Court.

This action concerns a farm lease filed inthe District 

### Court of theEighth Judicial District, County of Cascade. Motions and briefs 

### were submitted by both parties for summary judgment, and on June 23, 

### 1978, summary judgment was granted to the defendants. Plaintiffs appeal. InApril 1971, plaintiff Chamberlain leased from defendants L.E. 

### and Josephine Evans (Evans) 230 

### acres of wheat land near Great 

### Falls. The pertinent parts of the lease inthis action provided that it 

### ran toNovember 1, 

### 1971, and unless notice of termination 

### was given by either party, it 

### would be 

### automatically renewed for each succeeding year.Termination could bemade intwo ways. In the event Evans sold allorpart of the land, the leasewould 

### terminate immediately as tothe part sold and Chamberlain would become entitled tocertainpayments. The lease could also be terminated by nonrenewal, if notice of nonrenewal was given by either party atleast 60 

### days prior tothe renewal dateof the lease. The lease continued untilApril 1974 through automatic renewal. On oraboutApril 1, 

### 1974, however, Chamberlain received from Evans a notice of termination of the lease. The notice stated that the reason for termination was due to sale 

### of part of the leased premises making further farming inconvenient. The notice alsodirected Chamberlain todo no summerfallow or toplant any of the land. Evans thereafter entered into a contractwith illi ion

### Moore, Inc., tocome onto the land inthe spring and 

### summer of 1974 towork the leased premises and toplant it 

### towheat. The land under leasewas not sold. Because of Killion-Moore's operations, however, Chamberlain ceased farming the leased land. The issue(s)on appeal aredisputed by the parties. Because the District Court granted Evans summary judgment, the issue asdefined by him 

### isprobably more correctly stated: Whether there was an issue of material fact, the existence of which would preclude summary judgment, and if not, whether themovant should prevail as a matter of law? Chamberlain more circuituously 

### states the issues 

### as: 1. Whether an admitted interference by Evans with Chamberlain's rights tothe exclusive possession and quiet enjoyment of the leasehold during the 

### termof the lease gave 

### rise to factual and legal questions of damages? 2. Whether the notice of termination which stated an untrue reason for termination of the lease inan attempt to deprive Chamberlain of his termination rights was fraud on the plaintiffs? Both parties moved for summary judgment inthe court below. The order of the DistrictCourt reads inpertinent part:



# . 

# . . it appearing tothe Court that, as to laintiffs' motion there remain genuine issues f material facton questions of liability, but that 

### as todefendants' motion, there 

### is no genuine issue of any material fact and that defendants areentitled tojudgment 

### as 

### a matterof law, "Itis, therefore, hereby ORDERED thatplaintiffs' motion forpartial summary judgment be and it is hereby denied, and that defendants' motion for summary judgment intheir favor be and it 

### is hereby granted." Chamberlain can bring no challenge to that part of the DistrictCourt order denying him partial summary judgment.A 

### large part of his original complaint and brief on appeal is 

### devoted toa discussion of how Evans allegedly fraudulently terminated the lease. By statute, fraud 

### is always a question of fact. Section 13-310, R.C.M. 

### 1947, now section 28-2-404 MCA. 

### Therefore, Chamberlain himself 

### was not entitled tosummary judgment. The DistrictCourt did grant Evans' motion for summary judgment, however. On review, this Court must merely determine whether there exists a genuine issueof material fact and whether themoving party is

### entitled to a judgment as a matter of law. 

### Rule 56(c),M.R.Civ.P. The termination provision of the lease 

### reads: "2. TERM 

### OF LEASE: This agreement shallbe for a 

### termcommencing on the date hereof and 

### terminating on November 1, 

### 1971, PROVIDED HOWEVER, 

### that this agreement shallbe renewed automatically from year toyear forone year 

### terms commencing November 1st

### of each year and terminating on November 1st

### of the next year, unless one party give to the other party notice of termination of the same

### atleast sixty (60) days prior tothe termination date inany given year, inwhich event this agreement shall terminate November 1st 

### following the giving of notice of termination." The notice of termination sent toChamberlain by Evans stated: "NOTICE of TERMINATION 

### of FARM LEASE CONTRACT between L. E. 

### Evans and Josephine Evans (Owners) and CarlV. 

### Chamberlain and Hertha A. 

### Chamberlain (Operators). "Due tothe saleof acreage on this farm and sell

### ing of acreage invarious parts of this farm makes it 

### very inconvenient tofarm. Therefore, asof April 1, 

### 1974, the Operators 

### are todo no spring planting or summerfallowing except for reseeding inspotson winter wheat. "The Operators will

### harvest the winter wheat crop now in, as specified inthe Contract." It is

### clear from the termination provision that neither party was 

### required to stateany reason for the termination

as 

### long as notice of the termination was given sixty daysprior totheNovember 

### 1termination date in any year. Evans gave (and Chamberlain received) this notice on or about April 

### 1, 

### a full seven months before the specified termination date. This notice complied fullywith the letter and spiritof the 

### lease. Chamberlain apparently recognized this fact and did not attempt totalk toEvans about the

### matter afterApril 1. In such circumstances, any claim by Chamberlain thatEvans fraudulently stated the reasons for terminating the 

### lease are groundless for the simple reason that Evans was not required to stateany reason 

### atall for terminating the 

### lease. See Shanahan v. Universal Tavern Corp. (1978)1 

### -Mont. 

## , 585 P.2d 1314, 1317, 35 St-Rep. 1585, 1589. Evans followed the 

### termsof the 

### lease interminating 

### it and is now entitled to summary judgment 

### as a 

### matter of law. Chamberlain's claim inhis original complaint that he 

### is entitled toa share of the 1975 crop 

### is alsogroundless. Sections 67-702, -703, R.C.M. 1947, now section 70-26-206, MCA. He neither planted, cultivated, nor harvested these crops. In any event, 

### we have stated under very 

### similar circumstances: "The record 

### is clear thatplaintiff knew when he accepted the 

### terms of October 

### 2, 1961, thathis 

### termended November 

### 1, 1962. As a 

### matter of fact he brought this action on May 15, 1962, even before the 

### timefor summer-fallow. Treating the matter inthe lightmost favorable toplaintiff, that a 

### lease for one year existed because of the 

### letter of September 27, and the addendum of October 2, the 

### terms areplain, and under such conditions there isno basis for any theory of 'away going' crop.

"InHall v. Hilling, supra, the rule is announced thatwhen a lease, expressly or by implication, recognizes the right of a tenant to sow inthe 

### lastyear of his 

### term, the tenant has a right to harvest the away-going crop 

### atthe expiration of his lease, where the 

### lease is silentastowho 

### isentitled to the crop. This general proposition does not aid appellant, since 

### as we have previously discussed, under the circumstances here, the very basis forhis lease right, whether it was a lease 

### atwillor for one-year period, was to the contrary. The other authorities are either not inpoint or support our holding here. "Summarizing the circumstances here, the appellant knew when he accepted the 

### terms of the 

### last lease 

### --- 

### --- thathis 

### termended November 1, 1962. Heknew 

### it 

### --- 

## -- --- would not be extended. The lease did not require 

### -- him todo any summer-fallowing in 1962, and if he chose todo any thathe would be paid. "Under these circumstances, the district court was correct

# . . ." Johnson v. Anderson Ranch Co. (1963), 142Mont. 251, 254-55, 384 P.2d 271, 272- 73. (Emphasis added.) In fact, toaccept Chamberlain's theory of the case would be torequire ineffect a one year and sixty day notice of termination period because the tenant would always be entitled to the crops harvested the year following his receipt of notice of termination. This clearly contravenes the lease provisions. Finally, for the first

### timeon appeal, Chamberlain asserts thathis claim 

### allalong has been for breach of his right toquiet enjoyment of the leased premises. The record does not support this assertion. In themain paragraph and prayer of his complaint, Chamberlain stated: "2. That, on or about March 27, 1974, Defendants gave notice of termination of 

### lease alleging sale and use as an industrial park, made 

### it inconvenient to farm. That Plaintiffs relied upon Defendants representations and ceased to farm, although under said lease, they were entitled to summerfallow and farm the agricultural ground for 1975. That the representations of Defendants were false and fraudulent and made for the purpose of deceiving Plaintiffs, with the intent that Plaintiffs rely thereon to their detriment. Plaintiffs relied thereon and suffered detriment inthe loss of their 1975 crop share. That the reasonable value of Plaintiffs' share of the 1975 crop is the sum of TWENTY SEVEN THOUSAND SIX HUNDRED AND N0/100 DOLLARS ($27,600.00). "WHEREFORE, Plaintiffs pray judgment as follows: "1. For TWENTY SEVEN THOUSAND SIX HUNDRED AND N0/100 DOLLARS ($27,600.00)

# ."That this statestheories of recovery based on fraud or

on entitlement toan "away-going" crop share 

### is supportable; that 

### it states a theory of breach of quiet enjoyment is not. It has long been the rule that a party may not change his theory on appeal tothisCourt from that advanced in the trialcourt: "Under the well-known rule counsel ought not now topresent 

### a different theory from that upon which he tried the case inthe court below. 'The rule is settled inthisjurisdiction thatwhen a party has adopted one theory upon the trial of his case he may not change the theory on appeal. (Gay v. Lavina StateBank, 61Mont. 449, 18A.L.R. 1204, 202 Pac. 753.)' (O'Hanlon v. Ruby Gulch M. Co., 64 Mont. 318, 209 Pac. 1062; Patterson v. Law, 78 Mont. 221, 254 Pac. 412.)" United States Building & Loan Ass'n v. Burns (1931), 90 Mont. 402, 420, 4 P.2d 703, 707. Accord, Williard v. Campbell (1932), 91 Mont. 493, 503, 

### 11

Even if 

### we assume that Chamberlain's claim 

### all along has been for breach of quiet enjoyment, he would 

### stillhave

no claim forrelief astherewas no breach. Chamberlain would be entitled to a share of the 1974 crop harvested before the end of the lease. As indicated by the 

### termination notice and the record, this 

### is exactly what he did receive. Nothing Evans or Killion-Moore did in 1974 interfered with Chamberlain's right toharvest this crop. Chamberlain's flatassertion thathe 

### is entitled to some broader degree of possession of this farm land when he would not be entitled toany of the fruitsof the land harvested after the termination of the 

### lease is insufficient grounds on which todeny Evans' motion for summary judgment. The judgment of the District Court 

### is affirmed.

,' Justice /'

### We 

### concur: