No. 05-187
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 98
_______________________________________
COLEMAN CONSTRUCTION, INC., FRED COLEMAN
and KATHY COLEMAN,
Plaintiffs and Appellants,
v.
BEVERLY F. KUDRNA,
Defendant and Respondent.
______________________________________
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DV 03-0033
The Honorable Ingrid G. Gustafson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
John R. Gordon, Spoon Gordon, P.C., Missoula, Montana
For Respondent:
Michael J. Milodragovich and Perry J. Schneider, Milodragovich, Dale,
Steinbrenner & Binney, P.C., Missoula, Montana
For Amicus Montana Defense Trial Lawyers:
Steve Reida and Matt Putzier, Attorneys at Law, Bozeman, Montana
For Amicus Montana Legal Services:
Klaus Sitte, Attorney at Law, Missoula, Montana
For Amicus Western Montana Landlords Association:
Michael Sol, Sol & Wolfe, PLLP, Missoula, Montana
____________________________________
Submitted on Briefs: November 30, 2005
Decided: May 9, 2006
Filed:
______________________________________
Clerk
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Justice John Warner delivered the Opinion of the Court.
¶1 Appellant, Coleman Construction, Inc. (Coleman), appeals from the judgment of
the Thirteenth Judicial District Court, Yellowstone County, awarding the successful
Defendant, Beverly F. Kudrna, her attorney fees under § 70-24-442(1), MCA, a part of
the Montana Residential Landlord and Tenant Act of 1997 (MRLTA).
¶2 This case arose from a February 11, 2002, fire that started in Kudrna’s mobile
home and spread to destroy Coleman’s nearby trailer. Kudrna had leased her mobile
home to an unrelated third-party, and she had rented the space adjacent to the mobile
home to Coleman where its trailer was parked. Coleman used its trailer as a field office
and as lodging for several employees.
¶3 Coleman sued Kudrna alleging that she was negligent in inspecting and
maintaining the chimney and the coal-fire heater in her mobile home, and that her
negligence caused the fire that destroyed Coleman’s trailer and its contents. Coleman
also claimed at trial that Kudrna violated her duties of inspection and maintenance under
the MRLTA and sought to recover its attorney fees under § 70-24-442(1), MCA.
Coleman claimed damages of approximately $85,000. Kudrna offered to settle for
$27,500, but Coleman declined.
¶4 The case went to trial and the jury found in favor of Kudrna. Kudrna moved the
District Court to award her attorney fees and costs under the reciprocal provisions of §
70-24-442(1), MCA. The District Court awarded Kudrna attorney fees of $22,866.50
plus costs. Kudrna’s insurance company, which was not a party to the suit, paid for her
defense. Coleman appeals the award of attorney fees.
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¶5 Coleman does not contest that Kudrna was the prevailing party or the amount of
the fees, but challenges Kudrna’s right to collect them as an insured landlord under the
MRLTA. Thus, the issue on appeal is whether an insured defendant may recover
attorney fees, under § 70-24-442, MCA, incurred in a successful defense of an action by a
tenant. We review a trial court’s conclusion of law to determine whether it was correct.
Paulson v. Flathead Conservation Dist., 2004 MT 136, ¶ 17, 321 Mont. 364, ¶ 17, 91
P.3d 569, ¶ 17.
¶6 Section 70-24-442, MCA, states:
(1) In an action on a rental agreement or arising under this chapter,
reasonable attorney fees, together with costs and necessary disbursements,
may be awarded to the prevailing party notwithstanding an agreement to
the contrary.
(2) As used in this section, “prevailing party” means the party in whose
favor final judgment is rendered.
¶7 Under the plain meaning of the statute, the district court may award attorney fees
to the prevailing party. Section 70-24-442, MCA; Whalen v. Taylor (1996), 278 Mont.
293, 304, 925 P.2d 462, 468. The statute makes no distinction between insured and
uninsured parties. The role of the Court is to interpret the meaning of the terms included
in a statute, not to insert what has been omitted. Section 1-2-101, MCA; City of Billings
v. Gonzales, 2006 MT 24, ¶ 13, 331 Mont. 71, ¶ 13, 128 P.3d 1014, ¶ 13. We decline to
add a provision to the statute here that only uninsured landlords may recover attorney
fees.
¶8 Coleman argues that if insured landlords are permitted to recover under § 70-24-
442, MCA, the Court should extend Tripp v. Jeld-Wen, Inc., 2005 MT 121, 327 Mont.
146, 112 P.3d 1018, and require that a successful defendant show that the plaintiff’s
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action was frivolous, unreasonable, or without foundation, before recovering attorney
fees.
¶9 In Tripp, we held that, under the Montana Consumer Protection Act (MCPA), a
court may only award attorney fees to a successful defendant, “upon a finding that the
plaintiff’s action was frivolous, unreasonable, or without foundation, even though not
brought in subjective bad faith.”1 Tripp, ¶ 37 (quoting Christianburg Garment Co. v.
EEOC (1978), 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648, 657). We
concluded that the MCPA had a preference for protecting the plaintiff. Tripp, ¶ 37. Thus,
under Tripp, the defendant in an action under the MCPA is afforded less protection than
the plaintiff, and must meet a higher standard to recover fees. Tripp, ¶ 37.
¶10 The MCPA’s preference for protecting the interests of the plaintiff, over those of
the defendant, is evidenced by the Act’s treble damages provision, which allowed only
plaintiffs to recover treble damages. Tripp, ¶ 37. Conversely, the MRLTA provides such
protections for both the tenant and the landlord, as it allows a landlord to recover treble
damages as well as a tenant. Section 70-24-422(f)(5), MCA.
¶11 Coleman also argues that the MRLTA was created to provide tenants with greater
protection than landlords because landlords often have more economic resources than
tenants. Coleman cites Whalen for this notion, claiming in its brief that a goal of the
MRLTA was to “level the playing field between Landlords and Tenants; to provide equal
access to justice.” In Whalen, we affirmed the District Court’s award of attorney fees,
1
This is an “intermediate” standard, as it falls between a “bad faith” and a “prevailing
party” standard. Tripp, ¶ 33.
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under § 70-24-442, MCA, to a plaintiff that had been represented by pro bono counsel.
Whalen, 278 Mont. at 304, 925 P.2d. at 468-469. We concluded that allowing pro bono
attorneys to recover fees would promote equal access to justice as it would encourage
such attorneys to assist indigent clients. Whalen, 278 Mont. at 304, 925 P.2d at 468-69.
However, at no point in Whalen did we conclude that a plaintiff’s interests should be
preferred over that of a defendant’s. Thus, Whalen does not support the argument that
the Tripp standard should be extended to the MRLTA. If anything, Whalen would
support the opposite conclusion, as we allowed a “prevailing party,” that had not paid for
his own counsel, to recover attorney fees under § 70-24-442, MCA. Therefore, we do not
extend the Tripp standard, for a successful defendant to collect attorney fees under the
Montana Consumer Protection Act, to § 70-24-442, MCA, of the Montana Residential
Landlord and Tenant Act.
¶12 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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