Submitted on Briefs: December 10, 2013.
District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 12-596B Honorable Mike Salvagni, Presiding Judge.
For Appellant James A. Patten, Patricia D. Peterman; Patten, Peterman, Bekkedahl & Green, PLLC; Billings, Montana.
For Appellee Calvin L. Braaksma; Braaksma & Miller, PLLC; Bozeman, Montana.
PATRICIA COTTER JUSTICE.
¶1 Covenant Investments, Inc. appeals the Eighteenth Judicial District Court's dismissal of its complaint against First Security Bank (FSB) under M. R. Civ. P. 12(b)(6) (Rule 12(b)(6)). We affirm.
¶2 In February 2004, in preparation for an anticipated subdivision of property, R & D Holding,  and FSB's predecessor-in-interest, 360 Ranch Corporation, entered into a "Waiver of Right to Protest" the creation of Special Improvement Districts (SIDs) (Waiver) for the purpose of making road and/or intersection improvements to Cottonwood Road, between Huffine Lane and West Babcock Street, in Bozeman, Montana. The Waiver provided that if SIDs were not utilized to complete these improvements, the parties to the Waiver would "participate in an alternate financing method" for completion of the improvements. Subsequently, Covenant unilaterally completed the road upgrade project and then sought reimbursement from FSB. FSB refused and Covenant filed this action. The District Court granted FSB's motion to dismiss under Rule 12(b)(6). Covenant appeals.
¶3 Did the District Court err in dismissing Covenant's complaint against First Security Bank?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 In 2004, R & D Holding and 360 Ranch Corporation, then-owners of real property located along Cottonwood Road between W. Babcock Street and Huffine Lane, entered into the above-referenced Waiver. The Waiver, in relevant part, provided:
In consideration of receiving Final Plat approval from the City of Bozeman to subdivide the subject property . . . and in recognition of the traffic that will be generated by the development of the . . . property, R & D Holding and 360 Ranch Corporation and their successors and assigns, waive the right to protest the creation of one or more special improvement districts for street improvements to the east half of Cottonwood Road, extending from Huffine Lane to West Babcock.
If Special Improvements Districts are not utilized for the completion of these projects, the undersigned agree to participate in an alternate financing method for completion of these projects on a fair share, proportionate basis as determined by square footage of the property, linear front footage ...