                                           No. 05-621

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 204N



MICHAEL McINENLY,

              Plaintiff and Respondent,

         v.

KEITH and MARIE SWINGER,

              Defendants and Appellants.




APPEAL FROM:         The District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause No. DV 2004-1093,
                     Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

              For Appellants:

                     Keith and Marie Swinger, Pro Se, Missoula, Montana

              For Respondent:

                     Thomas W. Trigg, ASUM Legal Services, Missoula, Montana



                                                        Submitted on Briefs: June 21, 2006

                                                                   Decided: August 23, 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Appellants Keith and Marie Swinger appeal from the order of the Fourth Judicial

District Court awarding damages to Respondent Michael McInenly for Appellants’

failure to maintain a habitable rental unit. We affirm.

¶3     After inspecting rental units owned by Appellants Keith and Marie Swinger

(Swingers) on November 12, 2003, building inspector Stephen John Hutchings

determined that the units violated building codes in various respects and were unsafe to

occupy.    Accordingly, the City of Missoula ordered all residents of the building,

including Respondent Michael McInenly (McInenly), to vacate within five days. Though

McInenly vacated shortly thereafter, the Swingers refused to refund his security deposit,

and sought additional compensation of more than $200. Thereafter, McInenly instituted

this multiple count action for, among other things, failure to deliver possession of a rental

property and breach of warranty of habitability. The District Court ruled in McInenly’s

favor on August 19, 2005, and awarded McInenly $1,500 in damages.




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¶4       It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Court correctly interpreted, and there was clearly no abuse of discretion by the District

Court.

¶5       After hearing evidence from both the Swingers and McInenly, the District Court

determined that the Swingers (a) failed to provide a habitable rental unit, (b) refused to

accept responsibility for the substandard condition of their rental units, and (c)

wrongfully withheld money from McInenly’s security deposit. Accordingly, the court

ruled that the Swingers wrongfully breached their duty to deliver possession of the rental

unit, see § 70-24-302, MCA; breached their duty to provide fit and habitable housing

required by the Montana Residential Landlord/Tenant Act, see § 70-24-303, MCA; and

further violated various other laws and duties owed to McInenly. Though the Swingers

blame the District Court’s adverse judgment on their now-fired attorney, and further

argue that the District Court’s findings of fact are clearly erroneous, we cannot agree.

Rather, after reviewing the record, it is evident that the District Court’s findings of fact

are supported by substantial evidence and thus not clearly erroneous, and the conclusions

of law correctly entered. Notwithstanding the work of the Swingers’ former attorney, the




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judgment entered herein against the Swingers for failure to safely manage their rental

units was properly supported by evidence and based upon a proper application of the law.

¶6    Affirmed.



                                               /S/ JIM RICE


We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS




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