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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