GEO R. PIERCE, INC., Plaintiff and Appellee,
PAMELA JO POLEJEWSKI, Defendant and Appellant.
Submitted on Briefs: September 25, 2019
District Court of the Eighth Judicial District, In and For
the County of Cascade, Cause No. DDV 18-0201(b) Honorable
Elizabeth A. Best, Presiding Judge
Appellant: Pamela Jo Polejewski, Self-represented, Great
Appellee: Kelly J. Varnes, Hendrickson Law Firm, P.C.,
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Pamela Jo Polejewski, appearing pro tie, appeals the
September 5, 2018 Order Affirming Justice Court Ruling from
the Eighth Judicial District Court, Cascade County. Geo R.
Pierce, Inc., sued Polejewski for damages and to recover
possession of a storage container, when Polejewski failed to
make monthly payments on a two-year purchase option lease
agreement for the storage container. The Justice Court issued
its Findings of Fact and Conclusions of Law and Judgment on
March 9, 2018. Polejewski raises various claims challenging
the award of $3, 850 in damages, plus attorney fees and
costs, as well as awarding possession of the storage
container at issue to Geo R. Pierce, Inc.
The provisions regarding default in the contract allowed
Pierce to repossess the property "in the event of
nonpayment." Further, it provided that upon default,
Pierce "may declare immediately due and payable all rent
due and to become due for the full term of the lease."
Polejewski does not contest the fact that she has failed to
make any payments on the storage container since August 2016.
She simply argues that Pierce engaged in bad faith when it
refused to renegotiate the contract with her when she became
unable to pay. The Court cannot rewrite Polejewski's
contract. See 1-4-101, MCA ("In the
construction of an instrument, the office of the judge is
simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been
omitted or to omit what has been inserted."). Under the
terms of the contract, the Justice Court properly awarded
Pierce damages, as well as possession of the storage
Polejewski's challenge to the award of attorney fees
likewise fails. While Polejewski is correct that Montana
follows the "American Rule" for attorney fees,
under that rule the court will not award attorney fees to the
prevailing party in a lawsuit "absent statutory or
contractual authority." City of Helena v.
Svee, 2014 MT 311, ¶ 18, 377 Mont. 158, 339 P.3d 32
(emphasis added). The contract between Polejewski and Pierce
provided that "Lessee will pay all costs and expenses
(including attorneys fees) where recovery of same is not
prohibited by law incurred by Lessor in enforcing any of the
terms, provisions, covenants, and indemnities provided
herein." Given the express terms of the contract, the
Justice Court properly awarded $1, 549.62 in attorney fees
and costs to Pierce.
Polejewski also challenges whether she was properly credited
with the $950 worth of payments she did make. Pierce
submitted invoices for twenty-seven months of payments for a
two-year lease before the Justice Court. Pierce credited
Polejewski with five months of payments-the total of
Polejewski's sporadic payments (plus the $75 initial
"mobilization" fee)-and sought twenty-two months of
payments or $3, 850. Neither side contends that
Polejewski's payments did not total five months'
worth of payments. The terms of the contract call for
"monthly rental." There are only twenty-four months
in two years. Therefore, Pierce is only owed nineteen more
months of payments on a two-year lease or $3, 325. We reverse
the award and remand to the District Court with instructions
to remand to the Justice Court to amend the judgment to $3,
325 in damages and $1, 549.62 in attorney fees and costs, for
a total of $4, 874.62.
We have determined to decide this case pursuant to Section I,
Paragraph 3(c) of our Internal Operating Rules, which
provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law
or by the clear application of applicable standards of
review. Affirmed in part and reversed ...