DA 14-0667

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 212N

ST. MARIE DEVELOPMENT 

CORPORATION OF MONTANA,

 Plaintiff and Appellant,

 vs.

MARV BETHEA and GLACIER

TRAIL MANAGEMENT 

SERVICES, INC.,

 Defendant and Appellee.

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and For the County of Valley, Cause No. DV-2013-31

Honorable David Cybulski, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Peter L. Helland, Helland Law Firm, PLLC; Glasgow, Montana

For Appellee:

Loren J. O’Toole II, Brad W. Fjeldheim, O’Toole Law Firm; 

Plentywood, Montana

Submitted on Briefs: May 20, 2015

 Decided: July 28, 2015

Filed:

__________________________________________

Clerk

July 28 2015

Case Number: DA 14-0667
2

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 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 Montana 

Reports.

¶2 St. Marie Development Corporation of Montana (SMDC) appeals the order of the 

Seventeenth Judicial District Court, Valley County, which dismissed SMDC’s claim 

against Glacier Trial Management Services, Inc. (GTMS), and Marv Bethea for attorney 

fees incurred as part of a Conditional Settlement Agreement (Agreement) between the 

parties.

¶3 SMDC, GTMS, and Bethea are involved in ongoing litigation in Valley County. 

The District Court consolidated two actions between the parties, DV-04-96 and 

DV-04-104. The parties reached the Agreement in November 2008. The Agreement 

included a $125,000 judgment for GTMS, to be suspended for 18 months while the 

parties completed the conditions of the Agreement. The Agreement required the parties 

to prepare and market, as a package, several real properties belonging to the parties. On 

December 9, 2008, SMDC, GTMS, Bethea, and other parties not involved in this suit, 

entered into a contract with Century 21 Heritage Realty (Addendum), as required by the 

Agreement. SMDC hired counsel to ensure clear title of the properties designated to be 

sold under the Agreement.
3

¶4 On July 12, 2013, SMDC filed a complaint with the District Court, alleging that 

GTMS and Bethea breached the Agreement by refusing “to tender their portion of the 

[attorney] retainer or otherwise provide clear title to their properties . . . .” GTMS and 

Bethea moved to dismiss, arguing that no written documents contain provisions requiring 

them to pay attorney fees for the work required to provide clear title to the properties. 

The District Court granted the motion to dismiss. SMDC appeals the dismissal of the 

action to this Court.

¶5 We review de novo a district court’s ruling on a motion to dismiss made pursuant 

to M. R. Civ. P. 12(b)(6). Plouffe v. State, 2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d 316. 

A motion to dismiss under M. R. Civ. P. 12(b)(6) has the effect of admitting all 

well-pleaded allegations in the complaint. In considering the motion, the complaint is 

construed in the light most favorable to the plaintiff, and all allegations of fact contained 

therein are taken as true. Plouffe, ¶ 8. We will affirm a district court’s dismissal when 

we conclude that the plaintiff would not be entitled to relief based on any set of facts that 

could be proven to support the claim. Plouffe, ¶ 8. The determination whether a 

complaint states a claim is a conclusion of law, and a district court’s conclusions of law 

are reviewed for correctness. Plouffe, ¶ 8.

¶6 SMDC relies on provisions of the Agreement and Addendum in support of its 

argument that GTMS and Bethea are responsible for paying attorney fees. The provision 

in the Agreement upon which SMDC relies, reads as follows: “Marv Bethea and GTMS 

will cooperate and participate in the execution of documents to effect the settlement, and 

proceeding with a quiet title action and in assisting with marketing the package.” The 
4

provision in the Addendum upon which SMDC relies, reads as follows: “The parties 

hereto agree to cooperate with a Quiet Title Action that will likely be filed by or on 

behalf of St. Marie’s Hands of Hope, Inc. . . . and to sign any documents that may be 

necessary to assist with the Quiet Title Action going forward.” 

¶7 “[W]hen the language of a contract is clear and unambiguous, we are ‘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.’ Section 1-4-101, MCA.” Deschamps v. 

Treasure State Trailer Court, Ltd., 2010 MT 74, ¶ 28, 356 Mont. 1, 230 P.3d 800. 

Regarding the payment of an opposing party’s attorney fees, “[A] party in a civil action 

generally is not entitled to attorneys’ fees absent a specific contractual or statutory 

provision.” Motta v. Granite Cnty. Comm’rs, 2013 MT 172, ¶ 28, 370 Mont. 469, 

304 P.3d 720 (emphasis added).

¶8 Neither the Agreement nor the Addendum contain any specific provisions about 

the payment of attorney fees. We are not persuaded by SMDC’s argument that the 

provision requiring GTMS and Bethea to “cooperate and participate” must be interpreted 

to include paying a portion of the attorney fees to ensure clear title. To interpret this 

provision as such would be to insert language into the Agreement and Addendum, which 

is not the role of a court. Section 1-4-101, MCA. SMDC can prove no set of facts to 

support its claim, and the District Court correctly dismissed the action.

¶9 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 
5

application of applicable standards of review. The District Court’s interpretation and 

application of the law were correct.

¶10 Affirmed.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MIKE McGRATH

/S/ PATRICIA COTTER

/S/ LAURIE McKINNON

/S/ MICHAEL E WHEAT