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Bridger Del Sol, Inc. v. Vincentview, LLC

Supreme Court of Montana

November 28, 2017

BRIDGER DEL SOL, INC., Plaintiff and Appellee,
v.
VINCENTVIEW, LLC, Defendant and Appellant.

          Submitted on Briefs: October 4, 2017

         APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 13-704C Honorable John C. Brown, Presiding Judge

          For Appellant: Aaron Brann, Karl Knuchel, Karl Knuchel, P.C., Livingston, Montana

          For Appellee: Lilia N. Tyrell, Kasting, Kauffman & Mersen, P.C., Bozeman, Montana

          OPINION

          Laurie McKinnon Justice.

         ¶1 VincentView, LLC, (VincentView) appeals from findings of fact, conclusions of law, and an order entered by the Eighteenth Judicial District Court, Gallatin County, granting judgment in favor of Bridger del Sol, Inc. (BDS) and awarding BDS attorney fees. We affirm.

         ¶2 VincentView presents the following issues for review:

1. Did the District Court err in finding VincentView anticipatorily breached the lease?
2. Did the District Court err in finding BDS did not breach the lease?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 VincentView owns property located at 17 South Tracy Avenue, Bozeman, Montana. BDS is in the business of owning and operating a restaurant called Taco del Sol, a "casual, young, fun Mexican restaurant." VincentView and BDS entered into a commercial lease agreement on December 1, 2012. VincentView agreed to lease commercial premises to BDS for the purpose of operating Taco del Sol for an initial five-year year term with two three-year options to extend. Term 6 of the lease required BDS to have Taco del Sol "open and operating at least five (5) days per week, " but prohibited BDS from doing "anything or permit[ing] anything to be done . . . tending to create a nuisance or to disturb any other tenant or occupant of any part of the building." Three residential apartments are located above the leased premises. Term 27 allowed VincentView to discretionarily adopt "reasonable rules" and add them to the lease. Term 31 provided BDS with the quiet enjoyment of the premises.

         ¶4 Anticipating a lease term of five or more years, BDS made substantial permanent renovations to both the residential and commercial space before occupying the premises. These renovations included: upgrading the electrical system for the entire building; upgrading the plumbing; installing a new ventilation system; refinishing existing hardwood flooring and replacing carpeting with new flooring; refinishing the ceilings, adding fire retardation systems, and "sound channels;" installing an air conditioning unit; and refinishing and repainting the walls with a product designed to mitigate sound and odor.

         ¶5 BDS opened Taco del Sol in the leased premises in March 2013. After Taco del Sol opened, upstairs tenants came in the restaurant and complained about noise from music playing in the restaurant and odors from cooking. BDS attempted to address the upstairs tenants' concerns by reducing the music's volume and playing it only during business hours and offered to reroute the ventilation system through the roof instead of at street-level. On April 10, 2013, VincentView sent BDS a letter alerting BDS it was exercising its right to adopt reasonable rules and implementing two new rules to address the upstairs tenants' concerns. The first rule prohibited BDS from playing music and required BDS to keep felt attached to the legs of its chairs. The second rule required BDS pay for and install a new ventilation system that would eliminate all odors. BDS continued to play music. BDS kept felt on its chair legs. BDS purchased equipment to reroute the existing ventilation system, but VincentView prevented its installation.

         ¶6 On September 11, 2013, VincentView sent BDS a Notice of Default indicating BDS was breaching the lease by failing to abide by the added rules-playing music and not replacing the ventilation system. The Notice of Default indicated BDS had thirty days to comply and if BDS failed to comply VincentView would cancel the lease and retake possession of the premises. On October 21, 2013, BDS initiated a declaratory action in Montana's Eighteenth Judicial District Court, Gallatin County. In its complaint, BDS asked the District Court to declare it was not breaching the lease and also claimed VincentView anticipatorily breached the lease causing BDS damages. ...


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