10/11/2016
DA 16-0034
Case Number: DA 16-0034
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 258N
SHARON BOYCE and KYEANN SAYER,
Plaintiffs and Appellants,
v.
CARPET PLUS, INC. d/b/a ABBEY CARPET
& FLOOR, CURTIS BOWLER and MARTY
JOHNSON d/b/a MARTY JOHNSON, LLC,
Defendants and Appellees.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV-10-994
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Sharon R. Boyce (Self-Represented), Missoula, Montana
Kyeann Sayer (Self-Represented), Ewa Beach, Hawaii
For Appellee Carpet Plus and Curtis Bowler:
Gerry P. Fagan, Adam Warren, Moulton Bellingham PC,
Billings, Montana
For Appellee Marty Johnson:
Patrick M. Sullivan, Poore, Roth & Robinson, P.C., Butte, Montana
Submitted on Briefs: September 14, 2016
Decided: October 11, 2016
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 Boyce and Sayer (Homeowners) brought this action in 2010 seeking property
damages arising from Defendants’ (hereinafter Abbey’s) 2008 installation of flooring and
carpeting in the house they occupied in Missoula. At that time the residence was owned
by Tupi Plain, LLC. Homeowners also sought personal injury damages for “toxic
poisoning” that they claimed was caused by the finishing materials used on the flooring.
All Defendants filed motions for summary judgment and in December 2015 the District
Court granted the motions. Homeowners appeal and we affirm.
¶3 The District Court determined that the Homeowners lacked standing to prosecute
the property damage claims because they did not own the property at the time the claims
arose in 2008. Tupi Plain LLC owned the property in 2008 and also in 2010 when this
action was filed, but it is not a party to this action. The District Court determined that the
property damage claims belonged solely to Tupi Plain, not to the individual
Homeowners. Lewis v. Puget Sound Power & Light, 2001 MT 145, ¶ 17, 306 Mont. 37,
29 P.3d 1028; § 35-8-701, MCA. The individual Homeowners cannot bring an action on
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behalf of the LLC. H & H Development v. Ramlow, 2012 MT 51, ¶ 18, 364 Mont. 283,
272 P.3d 657.
¶4 The District Court next considered Homeowners’ failure to warn claim, which
arises from their contention that the finishing materials used on the floors were
unreasonably hazardous to their health. The District Court found that determining
whether the materials were dangerous to human health was beyond the common
experience of jurors and therefore required the support of expert testimony. The District
Court found that Homeowners had not placed any competent expert opinion in the record,
and that their own testimony as to their symptoms was not sufficient to overcome a
motion for summary judgment. Disler v. Ford Motor Co., 2000 MT 304, ¶¶ 9-10, 302
Mont. 391, 15 P.3d 864. Therefore, the District Court determined that Homeowners had
not met their burden to respond to Abbey’s motion for summary judgment.
¶5 Last, the District Court considered the motion for summary judgment on behalf of
the individual Defendants on the ground that they were acting within the course and
scope of their employment with Abbey’s and were therefore shielded from personal
liability. The District Court noted that Homeowners specifically alleged that the
individuals were acting within the course and scope of their employment at the time of
the events at issue and that this provided them with a narrow shield from personal
liability. Sherner v. Nat. Loss Control Serv., 2005 MT 284, ¶¶ 25-26, 329 Mont. 247,
124 P.3d 150.
¶6 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
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of the Court, this case presents questions controlled by settled law which the District
Court properly applied.
¶7 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
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