                              No.     94-598

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    1995



CHESTER W. HANSEN, JR. and
MARY C. LANGEN-HANSEN,

           Plaintiffs and Respondents,

     -vs
GWEN ARNESEN,
           Defendant and Appellant.




APPEAL FROM:    District Court of the Eighteenth Judicial District,
                In and for the County of Gallatin,
                The Honorable Thomas A. Olson, Judge presiding.



COUNSEL OF RECORD:

           For Appellant:

                Edward M. Dobson, Attorney at Law, Bozeman,
                Montana


           For Respondents:
                Mark Q. Schmitt, Attorney at Law, Bozeman,
                Montana



                                    Submitted on Briefs:   March 2, 1995
                                                Decided:   April 6, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.


        Gwen Arnesen (Arnesen) appeals from the judgment entered in

favor of Chester W. Hansen,            Jr.,    and Mary C. Langen-Hansen           (the

Hansens)       by   the   Eighteenth   Judicial       District   Court,      Gallatin

County.       We affirm.

        This case began as a relatively simple landlord-tenant dispute

and became a procedural quagmire.              Arnesen and her two children had

been living in residential property rented from the Hansens in

Bozeman, Montana.          On July 20, 1991, the Hansens served her with a

30-day notice to vacate the premises,                  terminating the parties'

lease    as    of   September 1.       Arnesen attempted         to pay     rent    for

September 1991, but her check was returned by the Hansens.                         When

Arnesen       did not     timely vacate,       the   Hansens   filed   an unlawful

detainer complaint in the Justice Court, Gallatin County.                    Arnesen

ultimately filed an answer and request for a jury trial, which also

included numerous numbered statements captioned counterclaims.                      The

purported counterclaims indicated, among other things, that Arnesen

was filing a complaint with the Montana Human Rights Commission

alleging discriminatory housing practices by the Hansens.                    Arnesen
also raised an affirmative defense of bad faith eviction, relying

on the statutory obligation of good faith contained in                 §   70-24-109,

MCA, and sought injunctive relief.

        During an October 1991 hearing on pending motions, the Justice

Court learned that Arnesen had moved from the property.                    Arnesen's

counsel moved for dismissal of the complaint on the basis that the

Hansens' unlawful detainer/holdover action had become moot.                         The

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court       denied the          motion because other issues                    in the      complaint

remained to be resolved.

          Discovery proceeded and Arnesen subsequently filed a motion

for       summary     judgment         and    other motions.            After          briefing,         the

Justice Court denied Arnesen's motion for                               summary judgment and

dismissed without prejudice her numbered counterclaims on the basis

of lack of jurisdiction.                     A trial date was rescheduled.

          The     Hansens       then    moved         for    summary        judgment,      asserting

entitlement          to    judgment          as   a   matter    of     law    on       their       illegal

holdover claim and treble damages for Arnesen's purposeful and "not

in good faith"             holdover,         both pursuant to           §    70-24-429 (1),             MCA.

They also sought attorney fees as a prevailing party under                                     §    70-24-

442,       MCA.     Arnesen filed a               cross motion       for      summary judgment,

conceding          that    the     Hansens        were      entitled to       the      value       of    the

contested tenancy for the period between September 1 and October

24,       1991,    in the amount of $709.67;                  she vigorously disputed the

Hansens'          entitlement to treble damages under the                          §   70-24-429(1),

MCA,       lack of     good      faith       standard and to           attorney fees               as    the

prevailing party.

          The     Justice       Court    subsequently           entered       judgment         for       the

Hansens in the amount of $709.67 plus costs of $46.80.                                     The court

was not persuaded that Arnesen's holdover was purposeful and not in

good faith under            §    70-24-429, MCA, however, and it did not award

the Hansens treble damages pursuant to that statute.                                       The court

determined that the Hansens were entitled to attorney fees pursuant

to    §    70 - 24 -442,    MCA,    as the prevailing party.                    The court later


                                                      3
entered judgment for the Hansens for attorney fees in the amount of

$650.        Arnesen appealed to the District Court and the Justice Court

file was duly transferred.

        Proceedings in the District Court became somewhat convoluted,

in large part because of Arnesen's repeated failure to understand

the nature of the de novo proceeding in that court.                          Rather than

further belabor the procedural history of this case by cataloging

the plethora of motions filed by Arnesen, responses by the Hansens

and orders of the District Court, we turn to the issues raised by

Arnesen, setting forth such additional facts as are necessary to

resolve each issue.

        1.     Is Arnesen entitled to judgment on the pleadings?

        Arnesen moved the District Court for judgment on the pleadings

on   the       basis      that   the    Hansens    had      not    responded    to     the

counterclaims          set   forth     in   her   answer.         The   District     Court

determined that the purported counterclaims were,                         for the most

part, mere legal conclusions that the Hansens had violated certain

lawsi    on that basis,          it concluded that there were insufficient

facts set forth in the pleadings on which it could rely in granting

judgment to Arnesen as a matter of law.

        Even under Montana's notice pleading rules, sufficient facts

must be alleged to form the basis of claims for relief because

claims        must   be    established      and   proved    via     facts,    not    legal

conclusions.         Moreover, the party against whom a claim is pled is

required to respond to pleaded factual averments by admitting or

denying those averments.               Rule 8(b), M.R.Civ.P.


                                             4
     Here,    Arnesen's counterclaims were separately numbered and

included such purported claims for relief as "1.                       Gwen Arnesen and

her children are members of a protected class in their familial

status    pursuant       to    §   49-2-305(12),         MCA,    and   may   invoke    the

protection of       §   49-2-305 (1),    MCA," and "2.             The plaintiffs are

unlawfully attempting to evict Gwen Arnesen and her children in

violation of    §    49-2-305(1), MCA."            Factual averments to which the

Hansens reasonably could respond by admission or denial are almost

totally absent from Arnesen's "counterclaims."

         In addition, a Rule 12 (c), M.R.Civ.P., motion for judgment on

the pleadings is premised on a court's ability to determine from

the factual averments in the claim or counterclaim, and the facts

admitted and denied in the response,                     that    the moving party is

entitled to judgment as a matter of law.                       Here again, the lack of

alleged    facts     in the counterclaims prevented the                   Hansens     from

responding by admission or denial.                      On the basis of the record

before us,    we conclude that the District Court did not err in

denying Arnesen's motion for judgment on the pleadings due to a

lack of sufficient facts set forth in the pleadings.
     2.   Did the District Court err in denying Arnesen's
     motion for summary and other relief as to attorney fees?
     Soon after the Justice Court file in this case was transferred

to the District Court, Arnesen filed a "Petition for Review of File

and Motion     for      Partial     Summary Judgment."             She   requested     the

District Court to merely review the file as it existed and enter

partial summary judgment on the issue of attorney fees                           in her

favor.      According         to   Arnesen,       the   only    controversy    that   had

                                              5
remained    for     resolution by the           Justice   Court    was   whether her

holdover of the Hansens' property was purposeful and not in good

faith.     She had contended that she had permission to remain for at

least a portion of the holdover period and, therefore, her holdover

was not purposeful and lacking in good faith.                 Because the Justice

Court had resolved that factual issue in her favor and, on that

basis, refused to award the Hansens treble damages, she asserted to

the District Court that she had been the prevailing party for

purposes    of     awarding attorney        fees.     Thus,   she    requested       the

District Court to grant her summary judgment on the attorney fee

issue.

        In its order on Arnesen's petition and motion, the District

Court    went     to    great    lengths    to    explain   that    it   was   not     a

"reviewing" court and that Arnesen's appeal was de novo.                       As the
court explained,         it could not merely accept the Justice Court's

determination on the disputed factual issue relating to permission

and lack of good faith and then enter its own legal determination

about attorney fees on that basis.                  The court denied Arnesen's

motion for partial summary judgment "at this time" because none of
the facts of the case had yet been established in the District
Court.     In an effort to help the parties avoid more delay and
expense,     the       court    suggested   that    counsel   might      attempt     to

stipulate to agreed facts relating to the underlying merits of the

case in order to provide a basis for later motions for summary

judgment or partial summary judgment on the attorney fees issue.

        Thereafter, the parties filed a "Stipulation of the Parties,"


                                            6
followed by cross motions for summary judgment on the issue of

entitlement to attorney fees.            The District Court determined that

the stipulation was nothing more than a recitation of the procedure

in the Justice Court and did not establish sufficient agreed facts

regarding    the    Hansens'    unlawful     detainer   action    and Arnesen's

counterclaim for unlawful ouster.            The court again explained that,

on de novo appeal, all necessary facts had to be established in the

District Court in order to provide a basis for decision by that

court.     For the reasons stated, the court denied the cross motions

for summary judgment.

     Arnesen       advances    several    errors   related   to    the   District

Court's rejection of the stipulation and denial of her subsequent

motion for summary judgment on the attorney fees lssue.               We restate

her first argument as whether the stipulation provided a sufficient

factual    basis    regarding    the   Hansens'    and Arnesen's      underlying

claims--for unlawful detainer and unlawful ouster, respectively--

for the court to determine a prevailing party for attorney fees

purposes as a matter of law.

     Arnesen appealed to the District Court pursuant to                  §   25-33-

301, MCA, which provides for appeals de novo from justice court.

We recently determined that,           under the de novo approach to such

appeals,    "a district court must conduct the proceedings before it

as if the case had originated in that court, following all statutes

and rules governing district court proceedings."                 Rickett v. City

of Billings (1993), 262 Mont. 339, 340, 864 P.2d 793, 794.

     Here, the parties' substantive underlying claims against each


                                         7
other included factual issues of "good faith" under                       §§    70-24-429

and 70-24-109, MCA; encompassed in these issues was Arnesen's claim

that the Hansens had consented, at least in part, to her holdover

tenancy.      It is clear that only after the District Court resolved

the underlying factual claims de novo could it determine the matter

of entitlement to attorney fees as the prevailing party under                          §   70-

24-442, MCA.

       In pertinent part, the stipulation submitted by the Hansens

and Arnesen stated:

       [T]he following facts are not in dispute[:]



       5.       . The parties have differing beliefs concerning
       the diligence with which [Arnesen] proceeded [in locating
       other housing].    Both parties perceived that the other
       lacked good faith.



       7.   The parties have differing beliefs as to whether
       there was an agreement to extend occupancy beyond the
       original termination date.

It is clear from these so-called "facts" that the parties had not

agreed upon the factual                issues requiring resolution before the

court could determine a prevailing party for purposes of awarding
attorney fees under         §    70-24-442, MCA.        On this basis, we conclude

that    the   District      Court       was   correct      in   determining     that       the

stipulation did not provide a sufficient factual basis on which it

could determine the prevailing party issue.

       Arnesen's other assertions of error with regard to her motions

for    summary     relief       fail   for    the   same    reasons,    since    all       are

premised      on   the   court's        purported       ability    to   determine          the

                                               8
prevailing party and attorney fees issue prior to the court having

determined the disputed facts regarding good faith.                           The District

Court's repeated efforts to explain why it could not do so fell on

deaf or uncomprehending ears and it is not necessary for this Court

to repeat those explanations with regard to each related error

Arnesen asserts.         We conclude that Arnesen has not established any

error in the District Court's denial of summary and other relief as

to attorney fees.

        3.   Did the District            Court err in denying Arnesen's
        motion in limine?

        Arnesen    filed    a    motion       in   limine    seeking     to   exclude   all

evidence except that relating to an award of costs and attorney

fees.     The District Court denied the motion.

        This motion      is yet     another example of Arnesen's                  repeated

efforts to limit the District Court's consideration of the case to

entitlement to attorney fees as the prevailing party pursuant to

§   70-24-442,    MCA.          Again,    she sought         to rely on the Justice

Court's resolution of the "bad faith" holdover issue in her favor

and totally failed to understand or accept that the District Court

could not determine the prevailing party issue until it determined

the merits of the underlying claims de novo.

        Given    our   discussion        in    issue    2,     further    discussion    of

Arnesen's       arguments       regarding      this    issue    is   unnecessary.       We

conclude that the District Court did not err in denying Arnesen's

motion in limine.

        4.   Did the District Court abuse its discretion in
        admitting plaintiff's exhibit 4 and testimony regarding
        statements allegedly made by Richard Arnesen?

                                               9
        The Hansens' exhibit 4, a letter written to them by Arnesen's

counsel,       was    admitted over Arnesen's relevancy objection as                               a
statement of Arnesen's agent.                        The Hansens used the exhibit to

present    and       argue       Arnesen's         bad    faith    to    the    jury.      Arnesen

advances a variety of grounds on which she contends the letter was

inadmissible.

        Similarly,         Mr.    Hansen was             permitted      to   testify      regarding

telephonic statements made to him by Arnesen's father,                                     Richard

Arnesen.        This testimony,           too, was utilized by the Hansens with

regard to their claim that Arnesen's holdover tenancy was not in

good faith.

        We will overturn a district court's evidentiary rulings only

on a showing of abuse of discretion.                         State v. Passama (1993), 261

Mont.    338,       341,   863 P.2d 378,            380.      However,       even if error is

found,    we    will       not    reverse      a    district       court       if   the   error   is

harmless       in    that    it    does       not    affect       the    complaining       party's

substantial rights.               Rule 61, M.R.Civ.P.

        Here, the purpose for which the evidence was introduced was to

enhance the Hansens' claim that Arnesen's holdover was purposeful
and not in good faith and, as a result, that they were entitled to
treble damages pursuant to                §   70-24-429(1), MCA.               Because the jury
ultimately decided that issue in Arnesen's favor, admission of the

evidence did not affect Arnesen's substantial rights.                                     Thus, we

conclude that any error in admitting the evidence was harmless.

        5.   Did the District Court abuse its discretion in
        refusing Arnesen's proposed instruction 12 and in giving
        special verdict paragraph 1?


                                                    10
     It is reversible error for a court to refuse to instruct the

jury on an important part of a party's theory of the case.                              Buhr on

Behalf of Lloyd v. Flathead County (Mont. 1994), 886 P.2d 381, 388,

51 St.Rep. 1258, 1263            (citation omitted).             However,       in examining

whether certain instructions were properly given or refused,                                 we

consider      the    instructions         in    their   entirety     and    the     evidence

introduced at trial.             Buhr, 886 P.2d at 388.

     Arnesen proposed instruction 12 to address the question of

whether the Hansens consented to her holdover occupancy for any

period of time during the holdover period and,                           if so, the legal

effect   of    a     consent     given     at    different       times    and     thereafter

withdrawn.         The Hansens objected to the proposed instruction as

confusing     and,     on   that    basis,       the    District    Court       refused     it.

Arnesen contends that the matters addressed in proposed instruction

12 were critical components of her "no bad faith" defense to the

Hansens' holdover claim and entitlement to statutory attorney fees

and that the refusal prejudiced her case.

     We agree with the District Court's reasoning that proposed

instruction 12 would have confused the jury unnecessarily.                                 The
instruction         interspersed      numerous          fact-based        "if    you     find"
directions          regarding       consent          with    alternative           follow-up
determinations        to    be     made    under       various     statutes       and    legal
principles.

     Moreover, Arnesen concedes, and the record is clear, that the

court suggested straightforward language which appropriately could

be given as a substitute for the refused instruction.                                  Arnesen


                                                11
                                                                                      ,    .
complains that the substitute language was not given.                     The record

reflects      that   the   District    Court    placed      responsibility      for    a

redrafted instruction on Arnesen:

        THE COURT:           So, you can construct [Defendant's
        Instruction 12A incorporating the court's suggested
        language] when you get done here.   I'll make a note of
        that. An instruction concerning consent by landlords to
        continued occupancy.



        THE COURT:   Okay, if you will do your work here Mr.
        Dobson, my secretary will type it up.



        THE COURT: All right, when you get it done bring it in
        and I will put them together and I'll put them in a book
        and then we'll come back on the record and finalize the
        set.


        Nothing in the record indicates that Arnesen was dissatisfied

with    the   substitute        language   suggested       by   the   court   and   the

transcript      is     silent     thereafter    as    to    further     settling      of

instructions.        The record does reflect,          however,       that the court

ultimately gave an instruction numbered Defendant's 12A as the

court's Instruction 9.            On the basis of the record before us, we

must    conclude that Defendant's 12A was given as Arnesen's own
reconstruction of the refused instruction and that, in Arnesen's
view,    it properly tendered the case to the jury.                     We conclude,
therefore,      that    the     District   Court     did    not   err   in    refusing

Arnesen's proposed instruction 12 and that Arnesen may not now

complain about the consent-related instruction given by the court.

        with regard to the special verdict form, Arnesen's argument is

an outgrowth of her contention that                  the court erred regarding

                                           12
"   .
proposed instruction 12.         For that reason and given our conclusion

regarding the       instruction,     her argument       concerning the   special

verdict form needs no discussion.            We add only that the record does

not reflect any objection to the District Court's special verdict

form    despite     the    court's   invitation    to    counsel   to   study    it

overnight and propose changes.          We conclude that the District Court

did not     abuse    its   discretion   in    including paragraph 1       in    the

special verdict form.

        Affirmed.

        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.




We concur:




    I!LdI~~  Justlces~

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