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 th e 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, A ttorneys 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____________________________________ Subm itted o n Briefs: Novem b er 30, 2005 Decided: May 9, 2006

Filed:

______________________________________ Clerk

2Justice John Warner delivered the Opi n ion of the Court. ¶1 Appellant, Colem a n C onstruction, Inc. (C olem an), appe als from the judgm e nt of the Thirteenth Judicial District Court, Yellowstone County, aw arding the successf ul Defenda nt, Beverly F. Kudr na, her attorney fees under § 70 -24-442( 1), M C A, a part of the Montana Residential Landl ord and Tenant Act of 1997 (MRLTA). ¶2 This case arose from a February 11, 2002, fire that started in Kudrna’s m obile hom e a n d spread to destroy C o l e m a n’s nearby trailer. K u drna had leased her m o bil e home to an unrelated third-part y, and she had rented the sp ace adjacent to the mobile home to Coleman where its trailer was parked. Coleman used its trailer as a field office and as lodging f o r several em ployees. ¶3 Colem a n sued K u drna alleging that she was negligent in inspecting and maintaining the chimney and the coal-fire he ater in her m obil e hom e, and t h at he r neglige n ce caused the fire that destroyed Co leman’s trailer and its contents. Coleman also claimed at trial th at Kudrna violated her duties of inspection and m a intenance unde r the MRLTA and sought to recover its atto rne y fees under § 70- 24-442( 1), MCA. Coleman claimed damages of approximately $85,000. Kudrna offered to settle for $27, 500, but Colem a n declined. ¶4 The case went to trial and the jury found i n favor of K udr na. K u drna m o ve d the District Court to award her attorney fees an d costs under the reciprocal provisions of §
70- 24-442( 1), M C A. The District Court a w ar ded K u drna attor n ey fees of $22, 866.50 plus costs. Kudr na’s insurance com p any, w h ich was not a party to the suit, paid for her defense. Coleman appeals the aw ard of attorney fees.

3¶5 Colem a n does not contest that Kudrna wa s the prevailing party or the am ount of the fees, but challenges Kudrna’s right to colle ct them as an insure d landlor d under t h e MR LTA. Thus, the issue on appeal is wh et her an insured defendant m a y recover attorney fe es, under § 70- 24-442, MCA, inc u rred in a successful defense of an action by a
tenant. We review a tr ial court’s conclusi on of law to determine whether it was correct. Paulson v. Flat head C onservation Dist ., 2004 MT 136, ¶ 17, 32 1 Mont. 364, ¶ 17, 91 P.3d 569, ¶ 17. ¶6 Section 70- 24- 442, M C A, states: (1) In an action on a rental agreem ent or arising under this chapter, reasonable attorney fees, together with costs and necessary disbursem e nts, may be awarded to the prevailing part y notwithstanding an agreement to the contrary. (2) As used in this section, “preva iling party” m e ans th e party in whose favor final judgm e nt is rendered. ¶7 Under the plain m eaning of the statute, th e district court m a y award attorney fees to the prevailing party. Section 70- 24-442, MC A; Whalen v. Taylor (1996), 278 M ont. 293, 304, 925 P. 2d 462, 468. The statute m a kes no distinction between insured a n d uni nsure d 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. Sec tion 1-2-101, MCA; City of Billings v. Gonzales, 2006 MT 24, ¶ 13, 331 Mont. 71, ¶ 13, 128 P.3d 1014, ¶ 13. W e decline to add a provision to the statute here that onl y unins ured landlor ds m a y recover attorney fees. ¶8 Coleman argues that if insu red landlords are permitted to recover under § 70-24

- 442, MC A, the Court should exte nd Tripp v. Jeld-Wen, Inc ., 2005 MT 121, 327 M ont. 146, 112 P.3d 1018, and requir e that a successful defendant show that the plaintiff’s

4action was frivolous, unreasona ble, or withou t foundation, before recovering attor n e y fees. ¶9 In Tripp , we held t h at, under the M onta n a Consum er Protection Act (M C P A), a

court m a y onl y awar d attorney f e es to a succ essful defenda nt, “upon a findi ng t h at the plaintiff’s action was frivolous, unreasonable, or without founda tion, eve n though not brought in subjective bad faith.” 1 Tripp , ¶ 37 ( q uoting C h ristianbur g G a rm ent Co. v.
EEOC ( 1978), 434 U.S. 412, 42 1, 98 S. Ct. 694, 700, 54 L. Ed. 2 d 648, 657). W e concluded that the MCPA had a preference for pr otecting the plaintiff. Tripp , ¶ 37. Thus, under Tripp , the defendant in an action under the MC PA is afforded less protection than the plaintiff, and must meet a higher standard to recover fees. Tripp , ¶ 37. ¶10 The M C P A ’s preference for prot ecting the i n terests of the plaintif f, over those of the defendant, is evidenced by the Act’s treble dam a ges provision, whic h allowe d onl y plaintiffs to recover treble dam a ge s. Tripp , ¶ 37. Conversely, th e M R LTA pr ovides such protections for both t h e tenant and the landl ord, as it allows a landlord to recover treble damages as well as a tenant. Se ction 70-24-422(f)(5), MCA. ¶11 Coleman also argues that the MRLTA was created to pr ovi de tena nts with gre a ter protection than landlor ds becaus e landlords often have more economic resources than tenants. Coleman cites Whalen for this not ion, claim i ng in its brief that a goal of the MRLTA was to “level the play i n g field bet w een Landl o rds a n d Tenants; to provi de equal access to justice.” In Whalen , we affirmed the District C ourt’s award of at torne y fees,

1 This is an “intermediate” standard, as it falls between a “bad faith” and a “prevailing party” standard. Tripp , ¶ 33.

5under § 70-24- 442, M C A, t o a plain tiff that had been represented by pro bono counsel. Whalen , 278 M ont. at 304, 925 P.2d. at 468- 469. We concl ude d t h at allowi ng pr o bono attorneys to recover fees would promote eq ual 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 poi nt in W hale n did we conclude th at a plaintiff’s interests should be preferred over that of a defendant’s. Thus, Whalen does not support th e argument that the Tripp standard s h ould be e x tended t o the M R LTA. If a n ythi ng, Wha l en woul d support the opposite concl u sion, as we allowed a “prevailing part y,” that had not paid for his own counsel, to recover attorney fees unde r § 70-24-442, MCA. Therefore, we do not extend the Tripp standard, for a successful defendant to collect attorney fees under the
Montana C ons um er Protection A c t, to § 70- 24- 442, M C A, of the Montana Residential Landlor d a nd Tena nt Act. ¶12 Affirmed.
/S/ JOHN WARNER

We Conc ur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ BRIAN MORRIS

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