                                      No.     83-168

               I N THE SUPREJ!!lE COURT O TEE STATE OF M N A A
                                         F              OTN

                                              1983




GALLATIN VALLEY MEDICAL DENTAL CENTER, I N C . ,
a Mont. C o r p . ,

                         P l a i n t i f f and R e s p o n d e n t ,

      -vs-

MICHAEL J . LEMLEY,

                         D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:   District Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
               I n a n d f o r t h e County o f G a l l a t i n ,
               The H o n o r a b l e J o s e p h E . Gary, J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F


        For Appellant:

               J o s e p h E. Mudd, B r i d g e r , Montana

        F o r Res2ondent:

               Douglas R .      D r y s d a l e , Bozeman, Plontana




                                       Submitted on B r i e f s :      July 21,   1983

                                                            Decided:   October 6 , 1983




                                              --
                                              .-
                                       Clerk
Mr. Justice L.C.     Gulbrandson delivered the Opinion of the
Court.

         Defendant, Michael J. Lemley, appeals from a judgment
of   the    Eighteenth   Judicial   District   Court   awarding
plaintiff, Gallatin Valley Medical-Dental Center, Inc.
$4,340.25 in rent.    We affirm.
         The parties entered into a five year lease for a space
in a building known as Gallatin Valley Medical-Dental Center
in Bozeman, Montana.      Appellant agreed to pay a total of
$11,571 during the first two years of the lease in equal
installments of $482.25     per month   commencing on July 1,
1979.      By the terms of the lease, the premises was to be
used as a pharmacy and could not be sublet without           the
written consent of the respondent.
         In August, 1979, without any notice to respondent,
appellant sold his pharmacy business to Donald A. and Hazel
Angle.     The Angles added their signatures to the original
lease and paid the respondent rent until September 1, 1980
when they vacated and abandoned the premises.
         On September 24, 1980 the respondent wrote a letter to
appellant advising him that he was in default and the lease
was terminated, but that all rights and remedies contained
in the lease were reserved.
         The respondent eventually relet the premises on July
1, 1981 for $300 per month.
         Respondent commenced this action on June      12, 1981
claiming appellant owed him $4,340.25       in lost rent.   The
complaint alleged that appellant had violated the terms of
the lease by not paying $482.25 per month from October 1,
1980 to the date of the complaint.      In his answer, appellant
admitted owing the respondent $4,340..25 but asserted he had
been released from his obligations under the lease because
respondent had terminated the lease and accepted rent from
the Angles.
       The District Court held that respondent's letter of
September 24, 1980 did not terminate appellant's liability
and   appellant owed    respondent $4,340.25   pursuant     to   the
terms of the lease.
       Appellant now contends the District Court erred in
awarding respondent the lost rent.       Specifically, appellant
asserts that respondent's letter of September 24, 1980, read
in conjunction with the lease, indicates that any liability
for rent was terminated by       the language of the letter.
Moreover, appellant asserts that the lease must be construed
against   the    respondent because   Section    28-3-206,       MCA
provides that an ambiguous contract must be interpreted most
strongly against the party who caused the uncertainty to
exsist.
       We affirm the judgment of the District Court.
       Initially, we note that the record does not indicate
that respondent prepared the lease.        Thus, the agreement
cannot be construed against respondent pursuant to Section
28-3-206, MCA.
       In this dispute, the applicable portion of the lease
is section 7, which, in pertinent part, provides:
                   "If the leased property     shall   be
              deserted or vacated,. ..
              "or there shall be a default in the
              payment of any rent or any part thereof,
              for more than fifteen (15) days  ...
              " after written notice of such default by
              the Landlord, Tenant's rights in this
              lease ...
              " shall thereupon terminate and end, and
              the Landlord shall have the right to
              enter or reposses the leased property       ..
              "Landlord may likewise   ...
              "and in addition to any other remedies
              which Landlord may have upon default, let
              and re-let said premises in whole or in
              part   ...
              "and Tenant shall be liable unto Landlord
              for any deficiency between the remaining
              upaid rental and the rental so procured
              by the Landlord for the period of said
              letting or re-letting and shall further
              be liable for costs of re-letting     ...
              "and Landlord may institute action for
              the whole of such deficiency immediately
              upon effecting a letting or re-letting
              and shall not thereafter be precluded
              from further like action in the event
              that such letting or re-letting shall not
              embrace the whole unexpired portion of
              the term hereof.  ..
              "If the Landlord shall give the notice of
              termination as herein provided, then at
              the expiration of such period, this Lease
              shall terminate as completely as that
              were the date herein definitely fixed for
              the expiration of the term of this lease,
              and Tenant shall then surrender the
              leased property to Landlord.   ..
              "the notice hereinbefore provided is only
              for the purpose of creating conditional
              limitation hereunder pursuant to which
              this lease shall terminate."
       The appellant argues that respondent's letter of
September 24, 1980 triggered that portion of section 7 which
provides:     "If the Landlord       shall give     the   notice   of
termination as herein provided, then at the expiration of
such period, this Lease shall terminate as completely as
that   were    the   date   herein   definitely     fixed   for    the
expiration of the terms of this lease.       . ."    In making this
argument, appellant points to the fifth paragraph of the
letter of September 24, 1980 which states, "Therefore, the
Landlord does elect without f u r t h e r n o t i c e t o t e r m i n a t e t h e

lease bearing             t h e d a t e of      J u n e 22,      1979,      and r e f e r r e d      to
above,       reserving         to    itself       a l l other        rights           and   remedies
c o n t a i n e d i n t h e s a i d lease i n t h e e v e n t of d e f a u l t . "                Thus,
a p p e l l a n t a s s e r t s t h e o b l i g a t i o n t o p a y r e n t was t e r m i n a t e d
by t h e l e t t e r .
          The     letter        of     September          24,      1980,         taken       in     its

entirety,         d i d n o t end a p p e l l a n t ' s o b l i g a t i o n t o pay r e n t .
The r e s p o n d e n t ' s    l e t t e r did terminate the lease s o f a r a s
a p p e l l a n t ' s r i g h t s were concerned, b u t t h e remedial o p t i o n s
of     the    l e a s e were        reserved.           The     portion          of    the    letter
appellant           relies          upon      clearly          states           that        although
appellant's            l e a s e was b e i n g        terminated,            r e s p o n d e n t was

" r e s e r v i n g t o i t s e l f a l l o t h e r r i g h t s and remedies c o n t a i n e d
i n the said lease i n the event of default."                                   T h i s is a c l e a r
i n d i c a t i o n t h a t p r o v i s i o n s of t h e l e a s e , i n c l u d i n g t h e r i g h t

t o c o l l e c t l o s t r e n t , were being r e s e r v e d .             In addition,            it

s h o u l d have been e v i d e n t t o t h e a p p e l l a n t t h a t t h e l e t t e r of
September          24,        1980     was      not     solely         a    termination              of
a p p e l l a n t ' s r i g h t s under t h e l e a s e .        The t h i r d p a r a g r a p h o f
the     letter        states:        "This       is     intended           as     the       specific
fifteen-day          n o t i c e o f d e f a u l t a n d non-payment              called for in

your     lease"       (emphasis added).                 Thus,       the     language of             the

letter       expressly         indicated         that      because         appellant         was     in
d e f a u l t , r e s p o n d e n t was t e r m i n a t i n g h i s r i g h t s a n d r e s e r v i n g

remedies under t h e l e a s e .
          S e c t i o n 7 o f t h e lease p r o v i d e s t h a t i n t h e e v e n t o f
default       ". .    .Tenant's r i g h t s i n t h i s l e a s e ( i f t h e Landlord
so     elects       and       such    election          is     reserved).              . .     shall
t h e r e u p o n t e r m i n a t e a n d e n d , and t h e L a n d l o r d s h a l l h a v e t h e
right to enter or repossess the leased property.                        .. "   The
lease further provides, "Landlord may.                     . .    at Landlord's
option, and in addition to any other remedies which Landlord
may have upon default, let and relet said premises.                       . . and
the Tenant shall be liable unto Landlord for any deficiency
between the remaining unpaid                   rentals and    the rentals so
procured.    ..    "
       Thus, the respondent had the right to terminate
appellant's rights in the lease, in order to let or relet,
and still hold the appellant liable for rent.
       Finally, appellant argues that respondent's remedies
were   exclusive,            i.e.,     respondent could          not    terminate
appellant's    rights in the lease and relet the premises.
This assertion is not what appellant agreed                            to when he
entered     into       the    lease.      As    previously    discussed,       the
language of the lease states that in the event of default
appellant's    rights were             terminated    and     respondent could
repossess and relet the premises.
       In sum, we find no reversible error and                           therefore
af firm.




We concur:
