                                                                                              08/25/2020


                                          DA 19-0534
                                                                                          Case Number: DA 19-0534

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 218N



WILLIAM RIDEG,

               Plaintiff and Appellee,

         v.

ROBERT BERLETH and NADIA BERLETH, et al.,

               Defendants and Appellants.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-18-1186
                       Honorable Karen S. Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Robert W. Berleth, Berleth & Associates, PLLC, Houston, Texas

                For Appellee:

                       Thomas C. Orr, Thomas C. Orr Law Office, P.C., Missoula, Montana



                                                   Submitted on Briefs: June 10, 2020

                                                              Decided: August 25, 2020


Filed:

                                     r--6ta•--df
                       __________________________________________
                                         Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, we decide this case by memorandum opinion. It shall not be cited and does not

serve as precedent. The case title, cause number, and disposition shall be included in our

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2    Robert Berleth and Nadia Berleth (hereinafter Robert, Nadia, or collectively,

Tenants) appeal the judgments of the Montana Fourth Judicial District Court, Missoula

County, evicting them from rental residential property due to material breach of lease,

returning possession of the property to landlord William Rideg (Landlord), and

determining liability and damages on their related claims against Landlord. We affirm.

¶3    Landlord owns a 4,200 square-foot house, with two-car garage and an apartment

with a separate entrance, on 2.6 acres of land in Huson, Montana (Nine Mile Property). In

early 2018, Robert was a licensed Texas lawyer who had recently taken the Montana Bar

Examination and was looking to move to Montana with his wife Nadia. In response to a

rental listing, and upon communication with Landlord, Tenants viewed the Nine Mile

Property in March 2018, and later executed a eleven-page lease agreement for a one-year

term beginning April 15, 2018. Tenants did not intend to have the separate-access

apartment included in the lease, but the written agreement made no such distinction.

Tenants moved into the main house and garage in early May 2018.

¶4    Immediately after the execution of the lease, Landlord emailed Robert on March 20,

2018, to advise of Landlord’s intent to stay in the separate-access apartment two nights a

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week and thus proposed that he would pay the monthly cost ($80) of internet service for

use by all in return for his use of the apartment. Robert responded: “Works for me.” Inter

alia, the written lease included the following provisions:

        LAWN CARE AND SNOW REMOVAL: When required by this
        Agreement, lawn care includes weeding, trimming and raking as necessary
        as well as mowing at least every 14 (fourteen) days during June 1 – Sept 15,
        and watering of lawn, plants and trees. Tenants will remove snow on
        driveway and walkways. If the Tenant fails to perform lawn care or snow
        removal obligations, Manager will cause said performance and bill the
        Tenant for actual costs incurred.

        ANIMALS / PETS: No pets shall be permitted on the premise, except the
        following described pets for which additional rent is paid: 1 dog: a German
        Shepard and 1 cat. . . . Tenants or their guests will not bring or allow
        additional animals on the premises at any time without a prior written consent
        from the Manager.

Except as otherwise expressly provided, the written lease precluded Tenants from

“mak[ing] other alterations” without the prior consent of the leasehold manager (i.e.

Landlord). The lease further specified, inter alia, that Tenants had a duty to use the

leasehold property, including the plumbing fixtures and facilities in a manner reasonable

under the circumstances.

¶5      When Tenants were moving in the house in early May, Landlord noticed that they

had two dogs—the lease-authorized German Shepherd and a Beagle. Upon Landlord’s

inquiry, Tenants responded that they were temporarily watching the Beagle for someone

else.

¶6      A common water well served three neighboring properties including the Nine Mile

Property and an adjacent property owned by Landlord’s brother. Soon after Tenants moved

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in, the common water well failed and the septic system on the Nine Mile Property backed

up. Landlord subsequently learned from his brother that the shared well failed due to high

seasonal run-off. Landlord advised Tenants of the problem and that his brother would be

installing a cistern to provide water to their property. In the nine-day interim before

restoration of running water on May 25, Landlord delivered water to Tenants for household

uses and the hot tub on the property. Upon installation of the cistern, Landlord also

arranged and paid for the recurring costs of filling the cistern. Upon notice from Tenants

that the septic system again backed up on May 29, Landlord arranged for a third-party

contractor to pump the tank and clear the lines within two days. Landlord thereafter stayed

in the separate apartment a few times in June and July.

¶7     Problems arose between the parties in August 2018. Robert closed the water spigot

in the main house that supplied water to the separate apartment, thereby forcing Landlord

to make several requests that he re-open it. In a separate incident, Landlord accidently

damaged the fender of Tenants’ 2005 Yukon Denali Sport Utility Vehicle (SUV) while

moving a wooden door into the garage. Landlord was at the Nine Mile Property on a

separate occasion when he noticed that someone, presumably Tenants, had damaged the

bark on two aspen trees near the house while trimming. While taking photos of the

damaged trees, Landlord noticed that Tenants were watching him from the house and asked

Robert to come out to discuss the matter but he did not. While Landlord was later present

at his brother’s home across the road, a Sheriff’s Deputy notified him that he was the

subject of a trespass complaint made by Tenants regarding his earlier presence on the Nine

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Mile Property. On August 29, Nadia unsuccessfully petitioned for a temporary protective

order against Landlord.

¶8     On August 20, Landlord, through counsel, gave Tenants notice of his intent to

terminate the lease based on various asserted breaches of the lease. The eviction notice

included a 3-day notice based on an asserted unauthorized animal on the premises and a

14-day notice based on asserted damage, destruction, or impairment of leasehold property.

After Tenants ignored the 3-day eviction notice, Landlord filed a district court complaint

for eviction and possession on August 27, 2016. Following an expedited bench trial, the

District Court issued findings of fact, conclusions of law, and judgment evicting Tenants

and restoring possession of the leasehold property to Landlord based on the finding that

Tenants had materially breached the lease agreement.

¶9     After a subsequent evidentiary hearing on damages on January 28 and 31, 2019, the

District Court entered an order on damages on February 11, 2019, decreeing that:

(1) Landlord was entitled to $537.51 in compensatory damages for leasehold property

repair and replacement costs; (2) Tenants were entitled to the sum of $3,162.49 as a refund

of the prepaid last month’s rent and the balance of their security deposit after a $537.51

offset to Landlord; (3) Tenants were entitled to $1,785.20 in compensatory damages for

the vehicle damage caused by Landlord; and (4) the parties were responsible for their

respective attorney fees incurred in the action. Tenants timely appeal.

¶10    We review lower court findings of fact only for clear error. Ray v. Nansel, 2002

MT 191, ¶ 19, 311 Mont. 135, 53 P.3d 870. Findings of fact are clearly erroneous only if

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not supported by substantial evidence or our review of the record indicates that the court

misapprehended the effect of the evidence or was otherwise clearly mistaken. Larson v.

State, 2019 MT 28, ¶ 16, 394 Mont. 167, 434 P.3d 241; Interstate Prod. Credit Ass’n of

Great Falls v. DeSaye, 250 Mont. 320, 323, 820 P.2d 1285, 1287 (1991). We review lower

court conclusions and applications of law de novo for correctness. In re Marriage of

Bessette, 2019 MT 35, ¶ 13, 394 Mont. 262, 434 P.3d 894; Steer, Inc. v. Mont. Dep’t of

Revenue, 245 Mont. 470, 474-75, 803 P.2d 601, 603 (1990). Lower court findings of fact

and conclusions of law are presumed correct on appeal. Hellickson v. Barrett Mobile Home

Transp., Inc., 161 Mont. 455, 459, 507 P.2d 523, 525 (1973). The appellant has the burden

of demonstrating an asserted error on appeal. In re Marriage of McMahon, 2002 MT 198,

¶ 7, 311 Mont. 175, 53 P.3d 1266; Hellickson, 161 Mont. at 459, 507 P.2d at 525.

¶11    Tenants first assert that the District Court’s finding that they materially breached

the lease agreement was clearly erroneous. They assert, inter alia, that the March 20, 2018,

email exchange between Robert and Landlord did not alter the underlying written lease

agreement, that the court erroneously construed the “Lawn Care” provision of the lease to

be inapplicable to tree trimming, that the court over estimated the extent of the damage to

the trees on the leasehold property, that the court erroneously found and concluded that

Landlord had a right to be on the leasehold property, and that the court erroneously failed

to recognize or apply the effect of the so-called internet “data amendment.” However, the

District Court made comprehensive findings of fact and conclusions of law regarding the

pertinent requirements and scope of the lease and Tenants’ disputed compliance therewith.

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Substantial record evidence supports the court’s findings, and Tenants have failed to

demonstrate that the court misapprehended the evidence or was otherwise mistaken on the

evidence. Tenants have further failed to demonstrate that the court erroneously construed

or applied the applicable law or contract provisions, whether written or oral.

¶12    Tenants next assert that the District Court erroneously denied them compensation

for the reasonable costs of a temporary vehicle rental ($1,671) during repair of their vehicle

and for the claimed post-repair diminution in the value ($500) of the previously undamaged

vehicle. As a threshold matter, the parties stipulated to a $1,785.20 estimate as the cost of

repairing the subject vehicle damage.

¶13    As the finders of fact in non-jury matters, district courts have broad discretion to

determine the weight and credibility of the evidence presented. Albrecht v. Albrecht, 2002

MT 227, ¶ 47, 311 Mont. 412, 56 P.3d 339. “Damages must in all cases be reasonable”

under the circumstances. Section 27-1-302, MCA. “Damages must be supported by

substantial evidence, not mere guess or speculation[.]” DeTienne v. Sandrock, 2018 MT

269, ¶ 14, 393 Mont. 249, 431 P.3d 12 (citation omitted). To recover the cost of diminution

of value of personal property, the claimant “must show its value before and after or the cost

of repair.” Agrilease, Inc. v. Gray, 173 Mont. 151, 157, 566 P.2d 1114, 1117 (1977)

(citations omitted).

¶14    Here, as to the claimed vehicle rental cost, the District Court found Tenants’ claim

for $1,671 unjustified or unreasonable under the circumstances on the evidence presented.

As to the claimed diminution in value, Tenants presented no non-speculative evidence

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regarding the relative value of their vehicle before damage and after repair. Aside from

argument regarding the weight and credibility of the evidence presented, the Tenants have

not demonstrated that the court’s findings of fact regarding the temporary vehicle rental

cost or claimed diminution in value are clearly erroneous, that the court applied an incorrect

measure of damages, or that the court abused its discretion in assessing the evidence

presented.

¶15    Tenants next assert that the District Court erroneously denied their claim for

punitive damages based on Landlord’s alleged violation of § 70-24-312(3), MCA (barring

landlord from “abus[ing] the right of access or use” of leasehold property “to harass the

tenant.”). Upon consideration of Tenants’ evidence and argument at the initial bench trial,

the District Court found that no evidence existed to support Nadia’s claims of stalking and

harassment by Landlord. The court later found that Nadia’s similar allegations of stalking,

harassment, and trespass by Landlord at the subsequent damages hearing were “not

support[ed by] Nadia’s claims” or video evidence and thus insufficient to prove landlord

harassment in violation of § 70-24-312(3), MCA. The evidentiary record supports the

court’s findings, and Tenants have not demonstrated that it misapprehended the evidence

or was otherwise mistaken. The District Court thus did not erroneously fail to find that

Landlord harassed Tenants in violation of § 70-24-312(3), MCA.

¶16    Punitive damages are available under Montana law only “in addition to

compensatory damages[]” on an underlying claim for relief not predicated on contract or

breach of contract. Folsom v. Mont. Pub. Employees’ Ass’n, Inc., 2017 MT 204, ¶ 51, 388

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Mont. 307, 400 P.3d 706 (citing § 27-1-220(1), MCA). (Emphasis in original.) Even then,

punitive damages are available only upon proof, by “clear and convincing evidence[,]” of

“actual fraud” or “actual malice[,]” as defined by § 27-1-221(2)-(5), MCA. Section 27-1-

221(1) and (4), MCA. Here, Tenants have neither proven their asserted predicate claim for

compensatory damages under § 70-24-312(3), MCA, as required by § 27-1-220(1), MCA;

nor proven actual fraud or malice as required by § 27-1-221(1) and (4), MCA. The District

Court thus did not erroneously deny them compensatory or punitive damages on their

underlying statutory claim for landlord harassment.

¶17   Citing Summers v. Crestview Apartments, 2010 MT 164, 357 Mont. 123, 236 P.3d

586, Tenants finally assert that the District Court erroneously concluded that the early

termination fee (i.e., one-month’s rent or $1,850) specified in the parties’ written lease

agreement was not a prohibited accelerated rent or liquidated damages provision in

violation of § 70-24-403(2), MCA. Section 70-24-202, MCA, expressly enumerates

various provisions prohibited by law in residential leases. Residential lease provisions

prohibited by § 70-24-202, MCA, are unenforceable as a matter of law. Section 70-24-

403(1), MCA. A party to a residential lease agreement may recover specified statutory

damages from another if the other “purposefully uses a rental agreement containing

provisions known by the party to be prohibited[.]” Section 70-24-403(2), MCA.

¶18   As a threshold matter, the reference to “prohibited” lease “provisions” in § 70-24-

403(2), MCA, narrowly refers to the “provision[s] prohibited by 70-24-202” as expressly

referenced in § 70-24-403(1), MCA. Summers is distinguishable and inapplicable here

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because it uniquely involved a prohibited and unenforceable rent acceleration provision in

violation of §§ 70-24-202(1) and -403(1), MCA. See Summers, ¶ 38.1 Tenants have failed

to demonstrate that the one-month’s rent early-termination fee here is akin to the rent

acceleration provision at issue in Summers, a provision prohibited by § 70-24-202, MCA,

or that Landlord “purposely” utilized such a provision as referenced in § 70-24-403(2),

MCA.2

¶19    Because it presents a question controlled by settled law or by clear application of

applicable standards of review, we decide this case by memorandum opinion pursuant to

Section I, Paragraph 3(c) of our Internal Operating Rules. Affirmed.


                                                    /S/ DIRK M. SANDEFUR


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE




1
  Without analysis reconciling §§ 70-24-202 and -403, MCA (unenforceable prohibited lease
provisions), with § 40-4-404, MCA (lease provisions unenforceable due to unconscionability),
Summers further cursorily characterized an unconscionable rent acceleration provision with a
statutorily prohibited practice. Summers, ¶ 38.
2
 Upon our review of the record, we are troubled by the inaccuracy of many of Robert’s factual
and legal representations here and below as a self-represented litigant but licensed member of the
Montana Bar. While we generally give wide latitude to self-represented litigants, we caution
Robert to be more cognizant of his professional duties before the courts of this State. See M. R.
Pro. Cond. 1.1, 1.3, and 3.3 (competence, diligence, and candor to the tribunal).

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