Nason v. Leistiko
| Decision Date | 17 September 1998 |
| Docket Number | No. 98-088,98-088 |
| Citation | 963 P.2d 1279,290 Mont. 460,1998 MT 217 |
| Parties | , 1998 MT 217 Ron and Sharon NASON, d/b/a Pleasant View Trailer Court, Plaintiffs, Respondents and Cross-Appellants, v. Kenneth E. LEISTIKO and Davine S. Gresham, a/k/a Davine S. Leistiko, Defendants, Appellants and Cross-Respondents. |
| Court | Montana Supreme Court |
James A. Rice, Jr.; Jackson & Rice, James T. Harrison, Jr.; Harrison, Loendorf, Poston & Duncan, Helena, for Respondents.
¶1 Kenneth E. and Davine S. Leistiko (the Leistikos) appeal from the judgment entered by the First Judicial District Court, Lewis and Clark County, on its Findings of Fact, Conclusions of Law and Order granting Ron and Sharon Nason(the Nasons) possession of Lot K in the Nasons' trailer court, ordering the Leistikos to remove their trailer from the lot, and awarding costs and attorneys fees to the Nasons. The Leistikos raise the following issues on appeal:
¶2 1. Were the Nasons' written notices of the Leistikos noncompliance with the rental agreement materially defective?
¶3 2. Did the District Court err in concluding that the Nasons were not required to accept the Leistikos tender of the past-due rent?
¶4 The Nasons raise two issues on cross-appeal. In addition, they contend that the Leistikos failed to timely raise the issue of ¶5 For the reasons discussed below, we conclude that the Leistikos did not timely raise the issue of whether the notices of noncompliance were defective in the District Court and that issue is not properly before us. Moreover, we conclude that the Leistikos second issue is premised on their succeeding on the first issue. Consequently, we do not address the merits of the Leistikos' issues on appeal, we deem the Nasons cross-appeal withdrawn and we affirm the District Court.
defective [290 Mont. 462] notices of noncompliance in the District Court and, as a result, failed to preserve this issue for appeal. Moreover, the Nasons request the withdrawal of their cross-appeal in the event we decline to address the merits of the Leistikos' appeal.
¶6 The Nasons own the Pleasant View Trailer Court located in Lewis and Clark County, Montana. In May of 1994, the Leistikos purchased a mobile home situated on Lot K of the Nasons trailer court. When the Leistikos moved into the mobile home, they signed a rental agreement for the lot space.
¶7 On October 18, 1996, the Nasons sent the Leistikos three notices stating that the Leistikos were not in compliance with the rental agreement. The first notice related to rent which allegedly was past due and requested payment of the amount due within 15 days. The second notice related to an addition to the Leistikos' mobile home which purportedly violated county spacing regulations and requested the Leistikos to either remove or modify the addition within 14 days. The third notice stated that the mobile homes porch addition was built over the septic tank, impaired access to the tank and must be removed within 3 days. The Leistikos did not timely correct any of the noncompliances set forth in the notices and, on November 4, 1996, the Nasons' attorney advised the Leistikos in writing that the rental agreement was terminated. Thereafter, the Leistikos tendered payment of $110 for the past-due rent, but the Nasons refused to accept it.
¶8 The Nasons subsequently filed an action in Lewis and Clark County Justice Court alleging that the Leistikos had breached the rental agreement; they sought to evict the Leistikos from the trailer court. The Leistikos answered the complaint, raised eight affirmative defenses and asserted seven counterclaims against the Nasons. They also moved to have the case removed to the District Court because the damages requested in their counterclaims exceeded the Justice Courts jurisdictional limit. The Nasons did not oppose the motion and the Justice Court ordered the case removed to the District Court.
¶9 The District Court bifurcated the Leistikos' counterclaims from the Nasons eviction action and held a bench trial on the eviction-related issues. Thereafter, it issued its Findings of Fact, Conclusions of Law and Order, concluding that the Leistikos had breached the rental agreement by not paying the past-due rent, after repeated requests for payment, but had not otherwise breached the rental agreement. It ordered the Leistikos to remove their mobile home from the trailer court lot within 20 days of the date of the judgment. Judgment was entered accordingly and stayed pending the Leistikos' appeal and the Nasons' cross-appeal.
¶10 1. Were the Nasons' written notices of the Leistikos noncompliance with the rental agreement materially defective?
¶11 The Leistikos argue that the Nasons' eviction action should have been dismissed because the noncompliance notices were defective in failing to adequately specify the acts and omissions which constituted noncompliance, as required by § 70-24-422, MCA. In response, the Nasons raise the threshold questions of whether the Leistikos timely raised the issue regarding defective notices in the District Court and, consequently, whether that issue is properly before us. It is well-established that we will not address issues on appeal which were not properly raised in the district court. See, e.g, Nitzel v. Wickman (1997), 283 Mont. 304, 313, 940 P.2d 451, 456. As a result, it is necessary to resolve the Nasons' threshold questions at the outset.
¶12 Relying on Marsh v. Overland (1995), 274 Mont. 21, 905 P.2d 1088, the Nasons argue that, because the Leistikos did not raise the issue of whether the noncompliance notices were defective until their post-trial brief and proposed findings of fact, conclusions of law and order, they did not timely raise the issue in the District Court and cannot now appeal on that basis. They further point out that the District Court did not address this issue in its Findings of Fact, Conclusions of Law and Order.
¶13 In Marsh, the plaintiff attempted to argue on appeal an issue raised in the district court only in his post-hearing memorandum and not addressed in the district courts order. The plaintiff had not raised the issue in his complaint, did not address the issue at the district court hearing and did not move to amend his complaint to conform to any evidence presented relating to the issue. We held that, under those circumstances, the issue had not been timely raised in the district court and could not be raised on appeal. Marsh, 274 Mont. at 29, 905 P.2d at 1093.
¶14 The Leistikos concede that they did not present any argument in the District Court regarding the sufficiency of the noncompliance notices until their post-trial submissions to the court. They contend, however, that the sufficiency of the notices was controverted in the pleadings and, therefore, effectively raised as an issue prior to the bench trial.
¶15 Paragraph 5 of the Nasons' complaint alleged that
[o]n or about October 18, 1996, Plaintiffs gave written notice, sent by certified mail, to Defendants of three violations of the terms of the rental agreement, including failure to pay the increased rate of rent after proper notice, and two notices regarding the placement of additions on Defendants' mobile home which violated spacing requirements of the court and of state law. A copy of the three notices sent to the Defendants are attached hereto as Exhibits B, C, and D.
Each of the appended notices stated that it was given in compliance with § 70-24-422, MCA, which requires that the notice specify the acts and omissions constituting the breach of a rental agreement. See § 70-24-422(1), MCA. The Leistikos answered the allegations in Paragraph 5 by stating that they "deny the allegations of Paragraph 5 except admit they received copies of the items attached as Exhibits B, C, and D to the complaint." They also alleged, as an affirmative defense, that they had paid or tendered all amounts due under the rental agreement. Relying on Montana Metal Buildings, Inc. v. Shapiro (1997), 283 Mont. 471, 942 P.2d 694, the Leistikos contend that the denial and affirmative...
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