                                                                                             10/04/2016


                                          DA 16-0102
                                                                                         Case Number: DA 16-0102

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2016 MT 251N



BEVILL LIMITED PARTNERSHIP,

               Plaintiff and Appellee,

         v.

GREGORY P. SANDBERG,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV 14-1169A
                       Honorable Katherine R. Curtis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Brian M. Joos, Viscomi & Gersh, PLLP, Whitefish, Montana

                For Appellee:

                       Sean S. Frampton, Johnna J. Preble, Morrison & Frampton, PLLP,
                       Whitefish, Montana



                                                  Submitted on Briefs: September 7, 2016

                                                              Decided: October 4, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker 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     Bevill Limited Partnership (Bevill) and Gregory Sandberg dispute the

enforceability and effect of an easement burdening Bevill’s property. The parties own

adjacent parcels of real property in Whitefish, Montana. A boundary line adjustment in

July 2003 made Sandberg’s property inaccessible from Colorado Avenue. In September

2003, Bevill’s predecessor in interest executed a fifty-foot private access and utility

easement (the Easement) in favor of Sandberg’s predecessor in interest. The Easement

allowed Sandberg’s predecessor to access his property and also entitled Bevill’s

predecessor to use the Easement for access and utilities. The parties concurrently entered

into a written agreement (the Agreement) imposing certain restrictions on Bevill’s

property. The Agreement provides, in pertinent part:

       For valuable consideration, receipt of which is hereby acknowledged,
       [Bevill’s predecessor in interest] agrees to impose the following terms and
       restrictions on [Bevill’s] PROPERTY and hereby grants [Sandberg’s
       predecessor in interest] a negative easement, pursuant to which [Bevill’s
       predecessor in interest] agrees that he, and his successors in interest,
       (a) shall not construct any structures, buildings, or any other improvements,
       including but not limited to parking lots, parking areas, or driveways, on
       that portion of [Bevill’s] PROPERTY that is shown as cross-hatched on
       “Exhibit A,” attached hereto and incorporated herein by reference, (b) shall
       obtain primary vehicular access to the units to be constructed on [Bevill’s]
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      PROPERTY directly from Colorado Avenue, and shall use the 50’
      PRIVATE ACCESS & UTILITY EASEMENT (shown on Exhibit “A”)
      only for occasional and limited vehicular access to that portion of [Bevill’s]
      PROPERTY located east of such units.”

The referenced “Exhibit A” is a map of the property that shows the Easement and the

restricted area of development.

¶3    Bevill’s predecessor later subdivided the property into five lots. Four of the lots

had direct access to Colorado Avenue. Bevill’s predecessor could access the fifth lot (the

Open Area) only by means of the access road through the Easement.                 Bevill’s

predecessor acquired additional property, which was combined with the Open Area and

accessible only by the access road.

¶4    In 2010, Bevill purchased the Open Area. Three years later, Bevill applied with

the City of Whitefish to subdivide the property.      The City conditioned approval of

Bevill’s application, in part, on Bevill granting the City an access and utility easement

that would open the access road on the Easement to the public. Bevill granted the City

the access easement and the City approved Bevill’s application. The access road through

the Easement therefore became open to the public.

¶5    In November 2014, Bevill filed a declaratory judgment action regarding the

validity and enforceability of the restriction under the Agreement’s subpart (b). Bevill

filed a motion for summary judgment, which the District Court granted. The court noted

that the parties did not dispute that the access road through the Easement was open to the

public. Consequently, the court framed the issue as “to what extent the restriction on

Bevill’s use of the 50-foot access road can survive a clear designation of the roadway as
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open to the public, for use by anyone and everyone without restriction.” Because the

establishment of the public road granted members of the public—including Bevill—an

“unrestricted right to travel upon the road,” the court concluded that it could not enforce

the restriction on Bevill’s use of the Easement under the Agreement. The court also

rejected Sandberg’s argument that subpart (b) of the Agreement prohibited Bevill from

developing the property. The court’s order did not affect subpart (a) of the Agreement.

Sandberg appeals.

¶6     We review an entry of summary judgment de novo, applying the criteria set forth

in M. R. Civ. P. 56(c)(3). Broadwater Dev., L.L.C. v. Nelson, 2009 MT 317, ¶ 15, 352

Mont. 401, 219 P.3d 492. Where the material facts are undisputed, the court must

identify the applicable law, apply it to the uncontroverted facts, and determine who

prevails. Broadwater Dev., L.L.C., ¶ 15. The construction of a writing granting an

interest in real property is governed by the rules of contract interpretation. Broadwater

Dev., L.L.C., ¶ 19. The interpretation of a contract is a question of law that we review for

correctness. Hurly v. Lake Cabin Dev., LLC, 2012 MT 77, ¶ 14, 364 Mont. 425, 276 P.3d

854.

¶7     Sandberg does not dispute that the access road through the Easement is open to the

public. Given this, we must apply our rules of contract interpretation to determine the

effect and enforceability of subpart (b) of the Agreement. See Broadwater Dev., L.L.C.,

¶ 15. Subpart (b) provides, in pertinent part, that Bevill “shall use the [Easement] only

for occasional and limited vehicular access to that portion of [Bevill’s] PROPERTY

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located east” of the four lots with direct access to Colorado Avenue.         Despite this

language, Sandberg did not object to the public easement and does not challenge public

use of the roadway. Rather, Sandberg alleges that subpart (b) restricts construction and

development because it restricts where and how a person may gain access into the

property after traveling upon the public roadway. He claims, therefore, that the provision

restricts the property and not the roadway.

¶8     Subpart (b)’s words—which must be “understood in their ordinary and popular

sense” pursuant to § 28-3-501, MCA—clearly pertain to use of the Easement to access

Bevill’s property. Given the plain language of subpart (b), Sandberg’s assertion that it

restricts “development and construction” on Bevill’s property adds language to the

Agreement in conflict with our rules of contract interpretation. Section 1-4-101, MCA

(“In the construction of an instrument, the office of the judge is simply 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.”). “[I]t is not the proper role of the judiciary

to insert modifying language into clearly written and unambiguous instruments where the

parties to the instrument declined to do so.” Creveling v. Ingold, 2006 MT 57, ¶ 12, 331

Mont. 322, 132 P.3d 531.

¶9     The language of subpart (a)—which restricts the construction of “any structures,

buildings, or any other improvements, including but not limited to parking lots, parking

areas, or driveways, on that portion of [Bevill’s] PROPERTY that is shown as

cross-hatched on ‘Exhibit A’”—establishes clearly that the parties restricted development

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only with regard to the portion of Bevill’s property marked on the attached map. We

must “give effect to the mutual intention of the parties” who entered into the Agreement.

Section 28-3-301, MCA. Moreover, subpart (a) “help[s] to interpret” subpart (b) because

it demonstrates that the parties understood how to set forth development restrictions in

the Agreement where they intended to do so. Section 28-3-202, MCA.

¶10    The District Court correctly interpreted subpart (b) of the Agreement as a

restriction on use of the Easement, and not as a restriction on Bevill’s right to develop the

remainder of his property not restricted under subpart (a). Accordingly, we conclude that

the District Court properly granted Bevill judgment as a matter of law regarding the

enforceability and effect of subpart (b) of the Agreement.        We therefore decline to

address Sandberg’s other arguments on appeal.

¶11    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 the applicable standards of review

and does not establish any new precedent or modify existing precedent. We affirm the

District Court’s order granting Bevill summary judgment.



                                                  /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
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