Schaffer v. Champion Home Builders Co.

No. 87-146
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

DALE SCHAFFER, as the Personal
Representative of the Estate of
Charles A. Hansen, MICHAEL J.
HANSEN, GARY A. HANSEN and MARY
ELLEN CHEFFMORE ,
Plaintiffs and Appel.lants,

CHAMPION HOME BUILDERS COMPANY,
Defendant and Respondent.

APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Robert J. Boyd, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Knight, Dahood, McLean & Everett; Edward G. Beaudette,
Anaconda, Montana
For Respondent :
Poore, Roth & Robinson; John P. Davis, Butte, Montana

Submitted on Briefs: Oct. 16, 1987
Decided: December 31, 1987
\ji a 27
.2:

Filed:
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Plaintiffs appeal the summary judgment of the Third
Judicial District, Powell County. The judgment dismissed
plaintiffs' wrongful death and survival complaint which was
not filed until one day after the statute of limitations had
expired. We affirm.
The parties present three issues for our review:
1. Did the District Court abuse its discretion when it
dismissed plaintiffs' wrongful death and survival actions?
2. Did the District Court abuse its discretion when it
denied relief from judgment under Rule 60 (b)(I), M.R.Civ.P.,
for mistake, inadvertence, surprise or excusable neglect?
3. Did defendant Champion waive the affirmative de-
fense of statute of limitations?
Charles Hansen was a professional painter. He had a
family history of emphysema and asthma, and a personal histo-
ry of smoking. In May 1977, Hansen and his wife moved into a
new mobile home they had purchased from Gold Star Homes. The
mobile home was manufactured by Champion Home Builders Compa-
ny (Champion). Throughout 1978, Hansen was treated for
emphysema and chronic obstructive pulmonary disease, as shown
by an increased chest diameter resulting from long-term
obstruction of air flow. He also displayed marked bronchial-
reactions to paint fumes. During multiple visits to his
treating physician in 1978, Hansen never mentioned the onset
of any breathing problems in his mobile home. Chest X-rays
taken on January 6, 1978, and again on August 1, 1978, re-
vealed no significant changes in Hansen's lung condition.
However, by 1979 Hansen's health had deteriorated. In
June 1979, he was diagnosed as having congestive heart fail-
ure. He was also repeatedly treated for acute bronchial
asthma. Hansen thought that formaldehyde gas in the mobile
home was causing his asthma. He moved out of the home in
July 1979.
By January 1980, Hansen was bedridden and on an oxygen
breather. He died of acute bronchial spasm and respiratory
failure on February 27, 1980, at age fifty-seven. His autop-
sy revealed scarred lungs, narrowed lumens of the bronchi,
and moderate-to-severe arteriosclerosis.
Plaintiff Schaffer is the personal representative of
Hansen's estate. Plaintiffs Michael J. Hansen, Gary A.
Hansen and Mary Ellen Cheffmore are Hansen's children and
heirs. They sought a survival and wrongful death action
against Gold Star and Champion. Plaintiffs claimed that
Hansen's condition was caused by formaldehyde gas released
from the particle board and plywood in the mobile home.
Plaintiffs requested recovery under the theories of negli-
gence, misrepresentation, breach of implied warranty and
strict liability.
Plaintiffs state that their complaint was mailed from
Anaconda, Montana, to Deer Lodge, Montana, on February 23,
1983. However, the complaint was not filed until March 1,
1983.
On November 19, 1986, Champion moved for sununary judg-
ment on the grounds that plaintiffs' claims were barred by
the three-year tort statute of limitations. The applicable
statute of limitations for this action is § 27-2-204(2), MCA,
which states:
The period prescribed for the commence-
ment of an action to recover damages for
the death of one caused by the wrongful
act or neglect of another is within 3
years.
Three years from the date of Hansen's death fell on Sunday,
February 27, 1983. Therefore, the limitation period was
extended to the next working day. The period expired on
Monday, February 28, 1983.
In February 1987, the District Court entered separate
summary judgments in favor of Champion and Gold Star. The
plaintiffs did not appeal the Gold Star summary judgment.
Gold Star then filed a motion with this Court to dismiss
plaintiffs' appeal as to Gold Star. This Court granted Gold
Star's motion by order on July 23, 1987. Consequently,
Champion is the sole respondent to this appeal.

Issue 1. Dismissal of complaint.
In its motion for summary judgment, Champion contended
that plaintiffs' claim was barred by the statute of limita-
tions. The District Court granted Champion's motion and
dismissed plaintiffs' claim with prejudice. Plaintiffs now
contend that mailing the complaint to the clerk of court
substantially met the deadline imposed by the three-year
statute of limitations.
On appellate review, we will uphold the summary judg-
ment if there is no genuine issue of material fact and the
evidence shows the moving party is entitled to judgment as a
matter of law. Voegele v. Estate of Schock (Mont. 19871, -
P.2d , 44 St.Rep. 1950, 1953; Rule 56 (c), M.R.Civ.P.
In analyzing this issue, we note that "[A] civil action
is cornn~encedby filing a complaint with the court." Rule 3,
M.R.Civ.P. "Filing" is the operative verb. "Filing" is
defined in Rule 5 (e), M. P.. Civ. P. : "The filing of pleadings
and other papers with the court as required by these rules
shall be made by filing - - the clerk of the court
them with
... " The words "filing them with" are not the equivalent
of "mailing them to." Unlike service by mail, which is
complete on the date of mailing, filing by mail is not com-
plete until the pleading is placed in the custody of the
c l e r k of court. P l a i n t i f f s p r e s e n t e d no e v i d e n c e t h a t t h e
c o m p l a i n t was i n t h e c l e r k ' s c u s t o d y p r i o r t o March 1, 1983.
The c o m p l a i n t was p l a c e d i n t h e m a i l t h r e e working d a y s
p r i o r t o t h e e x p i r a t i o n of t h e s t a t u t e of limitation. The
c o m p l a i n t was m a i l e d from Anaconda, which i s o n l y t w e n t y - f i v e
m i l e s from Deer Lodge. P l a i n t i f f s r e a s o n a b l y assumed t h a t a
l e t t e r p l a c e d i n t h e m a i l on Wednesday would a r r i v e by Mon-
day. However, t h e burden o f v i g i l a n c e was on p l a i n t i f f s t o
monitor the timely delivery and filing of the complaint.
The s t a t u t e o f l i m i t a t i o n s i s e x p l i c i t . By t h e l e t t e r
o f t h e law, t h e l a t e f i l i n g was f a t a l t o p l a i n t i f f s ' claim.
W will
e not resurrect a complaint which was n o t properly
brought before t h e c o u r t . W e h o l d t h a t t h e D i s t r i c t Court
properly dismissed p l a n t i f f s ' claim.

Issue 2. R e l i e f from judgment under Rule 60 ( b ) ( 1 ) .
Following summary judgment, p l a i n t i f f s moved f o r r e l i e f
under Rule 6 0 ( b ) , M.R.Civ.P., which s t a t e s :
On motion and upon such t e r m s a s a r e
j u s t , t h e c o u r t may r e l i e v e a p a r t y o r
h i s l e g a l r e p r e s e n t a t i v e from a f i n a l
judgment, o r d e r , o r p r o c e e d i n g f o r t h e
f o l l o w i n g r e a s o n s : (1) m i s t a k e , i n a d v e r -
tence, s u r p r i s e , o r excusable neglect;
...
The District Court did not respond to plaintiffs'
motion. When a c o u r t d o e s n o t r u l e upon a Rule 6 0 ( b ) motion
w i t h i n f o r t y - f i v e d a y s a f t e r it i s f i l e d , t h e motion s h a l l b e
deemed d e n i e d . Rule 60 ( c ) , M.R.Civ.P.
The s t a t u t e of l i m i t a t i o n s d o e s n o t d i s c r i m i n a t e be-
tween t h e j u s t and u n j u s t c l a i m . The s t a t u t e d o e s r e p r e s e n t
legislative and public policy controlling the rights of
potential litigants. I n balancing these r i g h t s , t h e l e g i s l a -
ture placed the fulcrum precisely at three years--no more, no
less.
A late filing is not a timely filing. Under Rule
60 (b), the trial court does not have the judicial discretion
to alter, change or lessen the statutory limits for the
commencement of actions. We hold that the Rule 60(b) (1)
motion was properly denied.

Issue 3. Waiver of affirmative defense.
Plaintiffs contend that Champion first raised the
statute of limitations defense in its motion for summary
judgment, and, therefore, Champion waived an affirmative
defense which should have been raised in its answer.
Plaintiffs spent their entire brief in opposition to
motion for summary judgment arguing the merits of the appli-
cable statute of limitations. Plaintiffs never raised the
waiver issue, although the lower court was the proper forum
to do so. As we have repeatedly held, we will not consider
an issue raised for the first time on appeal. Rozel Corp. v.
Dept. of Pub. Service Reg. (Mont. 1.9871, 735 P.2d 282, 286,

We affirm the District Court.
I
,

--
Chief Justice
We concur:

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