DA 08-0191

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 50N

STEVEN GLENN PRYOR, CYNTHIA JANICE

RICHARDS and MARC LEONARD PRYOR,

Plaintiffs and Appellees,

v.

JAMES R. MUSCH and SHIRLEY J. MUSCH,

Defendants and Appellants.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DV 05-0088

Honorable G. Todd Baugh, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Roy W. Johnson; Johnson Law Office; Billings, Montana

For Appellees:

Mark S. Hilario; Harper & Hilario, PLLP, Billings, Montana

Submitted on Briefs: February 11, 2009

Decided: February 24, 2009

Filed:

__________________________________________

Clerk

February 24 2009
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Chief Justice Mike McGrath delivered the Opinion of the Court.

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

OperatingRules, as amended in 2003, the following memorandumdecision shall not be cited

as precedent. It shall be filed as a public document with the Clerk ofthe Supreme Court and

its case title, Supreme Court cause number and disposition shall be included in this Court’s

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

¶2 James R. Musch and Shirley J. Musch appeal from the September 5, 2007, Decision

on Summary Judgment, and the subsequent judgment that was entered on March 7, 2008,by

the Hon. G. Todd Baugh in the Thirteenth Judicial District Court, Yellowstone County. We

affirm.

¶3 James Musch married Janice Musch in 1983 and each had children by previous

marriages. In 1984 James and Janice purchased a home at 320 Stewart Court in Billings, to

hold as joint tenants with the right of survivorship. In 2002 James and Janice entered into

and each signed an agreement entitled Memorandum of Agreement Concerning our

Residence (the Memo). The Memo governed the disposition ofthe residence at 320 Stewart

Court and provided that it was held in trust for distribution to their respective children upon

the death of James and Janice or upon a sale of the property.

¶4 Janice died in 2004 and James remarried, to Shirley Musch, defendant below and

appellant. In 2005 James conveyed the residence at 320 Stewart Court to himself and

Shirley. Steven, Cynthia and Marc Pryor are Janice’s children, and they brought the action
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below to enforce the terms of the Memo agreement and to impose a trust upon the property

for their benefit. They moved for summary judgment.

¶5 The parties waived hearing on the motion forsummary judgment and submitted briefs

and supporting documents. The District Court found that the 2002 Memo “is not ambiguous,

was not rescinded, and cannot be varied by parol evidence” and that the Memo therefore

governed the interests in the property at 320 Stewart Court.

¶6 We review the district court’s grant of summary judgment de novo under the same

requirements of M. R. Civ. P. 56, Cedar Lane Ranch v. Lundberg, 1999 MT 299, ¶ 15, 297

Mont. 145, 991 P.2d 440.

¶7 In the proceedings below all parties admitted the existence of the 2002 Memo, but

James attempted to vary its express terms by parol evidence of various other alleged

transactions. This evidence was considered and rejected by the District Court, and the court

concluded that the express and unambiguous terms of the Memo provided that the property

at 320 Stewart Court was held in trust by James for the benefit of his and Janice’s children.

If the language of an agreement is unambiguous and can be objectively interpreted only in

one way, then it is the duty of the court to apply the meaning of the language and not allow

extrinsic evidence to alter the terms. Ophus v. Fritz, 2000 MT 251, ¶ 23, 301 Mont. 447, 11

P.3d 1192. The District Court properly enforced the intent of James and Janice when they

executed the Memo to preserve the equity in the property for distribution to their respective

children. The District Court properly concluded that James’ subsequent transfer of the

property to himself and Shirley was contrary to the terms of the Memo and contrary to his

obligation as a trustee of the property.
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¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. There clearly issufficient evidence to support the District Court’sfindings of fact

and conclusions of law.

¶9 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ JAMES C. NELSON

/S/ JOHN WARNER

/S/ PATRICIA COTTER

/S/ JIM RICE