No. 93-136
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
KENNETH and JENNIFER RITLAND,
Plaintiffs and Appellants,
v.
ALFRED ROWE and MERLE HEITZMAN,
Defendants and Respondents.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Chouteau,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin C. Meek; Alexander, Baucus & Linnell,
Great Falls, Montana
For Respondent:
John D. Alexander and Neil E. Ugrin; Ugrin,
Alexander, Zadick & Slovak, Great Falls,
Montana (Ritland);
Thomas E. Boland; Attorney at Law, Great Falls,
Montana (Heitzman)
Submitted on Briefs: September 2, 1993
Decided: October 6, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiffs Kenneth and Jennifer Ritland commenced this action
to recover for damages to their cattle and their ranching operation
which they allege were caused by the negligence of defendants
Alfred Rowe and Merle Heitzman. The District Court for the Twelfth
Judicial District in Chouteau County, granted defendants' motion
for summary judgment, on the basis that plaintiffs' claim was
barred by the statute of limitations, and dismissed plaintiffs'
complaint with prejudice. From that judgment, plaintiffs appeal.
We reverse the judgment of the District Court.
The issue is whether the three-year statute of limitations for
complaints based on negligence, or the two-year statute of
limitations for complaints based on damage to property, applies in
this case.
FACTUAL BACKGROUND
Plaintiffs' complaint was filed on April 10, 1992, in the
Twelfth Judicial District Court in Chouteau County. For their
complaint, plaintiffs alleged that in June 1989 defendants received
permission to graze cattle on plaintiffs' land and intermingle
those cattle with cattle belonging to plaintiffs. They allege that
at the time defendants delivered their cattle to plaintiffs'
property, they knew, or by the exercise of reasonable care should
have known, that their cattle were infected with trichomoniasis.
Trichomoniasis is a venereal disease which causes cattle to abort.
2
Plaintiffs allege that as a result of commingling defendants'
cattle with plaintiffs' cattle, plaintiffs' cattle became infected
with trichomoniasis, and as a result, plaintiffs sustained damage
to their cattle and their ranching operation.
In response to plaintiffs* complaint, defendants affirmatively
alleged that plaintiffs' claim was barred by the statute of
limitations found at 5 27-2-207, MCA.
Both defendants moved for summary judgment based on the bar of
the statute of limitations. For purposes of the District Court's
consideration of that issue, the parties conceded that plaintiffs'
cause of action accrued no later than December 8, 1989, but was not
filed until April 10, 1992. Since more than two years passed from
the date of accrual until the date of filing, defendants argued
that plaintiffs' claim was barred.
In response, plaintiffs asserted that the applicable statute
of limitations was found at § 27-2-204, MCA, which provides that
tort claims, including negligence, must be filed within three years
from the date of accrual.
On February 9, 1993, the District Court issued its order and
judgment in whicl-n it concluded that s 27-2-207, MCA, was a more
specific statute of limitations pertaining to injuries to property,
and that § 27-2-204, MCA, was a general statute of limitations
pertaining to tort claims. Therefore, the District Court concluded
that the specific statute applied, and that plaintiffs' claim was
barred by the two-year statute of limitations. On that basis, the
3
defendants' motion for summary judgment was granted and judgment
was entered for defendants.
STANDARD OF REVIEW
This Court reviews an order of summary judgment by utilizing
the same criteria used by a district court initially under Rule 56,
M.R.Civ.P. hhnieV. CityofRoundup (Mont. 1993), 50 St. Rep. 342, 849
P.2d 212. Pursuant to Rule 56(c), summary judgment is proper when
no genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law.
DISCDSSION
Does the three-year statute of limitations for complaints
based on negligence, or the two-year statute of limitations for
complaints based on damage to property, apply in this case?
Section 27-2-204, MCA, provides in relevant part as follows:
Tort actions--general and personal injury. (1) Except
as provided in 27-2-216 and 27-2-217, the period
prescribed for the commencement of an action upon a
liability not founded upon an instrument in writing is
within 3 years.
Subsection (2) of the above statute provides that actions for
wrongful death caused by the wrongful act or neglect of another
must also be brought within three years. Subsection (3) provides
for a shorter two-year statute of limitations for certain specified
torts. Referring to 27-2-204, MCA, we have previously held that:
[T]he intent appears to have been to establish a general
three year statute of limitations for tort actions, with
a shorter two year period for certain particular tort
actions such as assault and battery.
4
WeStOnV. COk (1988), 233 Mont. 61, 63, 758 P.2d 289, 291.
Section 27-z-207, MCA, provides as follows:
Injuries involving property. Within 2 years is the
period prescribed for the commencement of an action for:
(1) injury to . . . real or personal property
. . . .
It is defendants' position, with which the District Court
agreed, that § 27-z-204, MCA, is a general statute of limitations
pertaining to all. torts, whereas § 27-z-207, MCA, is a specific
statute applying to those torts which result in property damage,
and that pursuant to 5 l-Z-102, MCA, and various authorities cited
by defendants, the particular statute controls when in conflict
with the general statute.
We have considered the authorities cited by defendants and
find, for the most part, that they are not on point. In Waton, we
held that where the plaintiff's complaint alleged assault and
battery, the specific statute of limitations found at
§ 27-2-204(3), MCA, controlled over the more general provision
found at 5 27-2-204(l), MCA. However, in that case, we simply
recognized that where the legislature saw fit to provide for a
distinction between different types of tort actions within the same
statute, the clear language of the statute controlled.
In Knight v. city ofMissoula (1992), 252 Mont. 232, 827 P.2d 1270,
we held that when 27 years passed from the date on which
plaintiff's claim accrued until the date on which it was filed,
5
plaintiff's claim, based on 42 U.S.C. § 1983 (1871, amended 1979)
for unconstitutional taking of her property, was barred by
5 27-2-207, FICA. We were not asked to reconcile inconsistent
statutes of limitations in Knight.
In Heclwnan v. Northern Pacific Railroad Company ( 1933 ) , 93 Mont. 3 63,
20 P.2d 258, we decided that the plaintiffs' cause of action for
damage to their property accrued when the damage was sustained, and
not when the negligent act which caused it was performed. Neither
did this case have anything to do with reconciling inconsistent
statutes of limitations. Likewise, in Engbze Rebuildeq Inc. v. Seven Seas
Import-Exportkferc.,Inc. (1980), 189 Mont. 236, 615 P.2d 871, we were
asked to decide when the time for filing the plaintiff's complaint
began to run, rather than what statute of limitations applied.
In Trustees, Carbon County School Dkm’ct No. 28 v. Spivey (199 I) , 2 47 Mont.
33, 805 P.2d 61, we were asked to reconcile statutes of limitations
other than those involved in this case.
Neither is Riersonv.State (1981), 191 Mont. 66, 622 P.2d 195,
applicable. That claim was based on an allegation of two
constitutional violations and a request for invocation of the
doctrine of promissory estoppel. We held that whether a two or
three-year statute of limitations applied, the claim was barred as
untimely.
6
In Lahman v. Rocky bfountain Phosphate company (1972) , 161 Mont. 28,
504 P.2d 271, we were asked to decide in a claim based on nuisance
whether the statute of limitations pertaining to property damage
applied, or whether a general statute which allowed five years for
causes of action not otherwise specified, controlled. We held that
the property damage statute specifically pertained to the damages
claimed in that case, and the longer statute had no specific
relevance to either the type of damage claimed or the nature of the
claim. We were not asked to reconcile two conflicting statutes
which applied directly to the type of claim presented.
The case cited by defendants which is most directly on point
is Quitrneyerv. TherOuX (1964), 144 Mont. 302, 395 P.2d 965. In that
case, the plaintiffs alleged that the defendants had orally agreed
to manage their apartment building, but that while doing so, the
defendants negligently allowed the water pipes in the building to
freeze and burst. The plaintiffs filed their complaint more than
two years, but less than three years, after the damage was
sustained. After a trial, a jury awarded the plaintiffs $9000 in
damages. On appeal, the defendants asserted that the suit was
barred by the statute of limitations. The plaintiffs apparently
did not argue that the three-year statute controlled. Instead,
they argued that the complaint sounded in contract rather than in
tort, and therefore, was governed by the five-year statute of
limitations. We held that the gravamen of the case was in tort and
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that since the damage claimed was to property, 5 93-2607, R.C.M.
1947 (the predecessor of § 27-2-207, MCA), applied and barred the
plaintiffs' claim for relief. It does not, however, appear that
the specific issue raised in this case was argued by the parties in
that case, nor squarely addressed by this Court.
Furthermore,. since the Quiheyer decision, we decided Thiel v.
TaurusDrillingLtd. 1980-U (1985), 218 Mont. 201, 710 P.2d 33. In Thiel,
we were asked to decide what statute of limitations applies to
civil actions for violations of the Securities Act of Montana. By
legislative deletion, Montana's Act included no specific period of
limitation. The plaintiffs contended that the eight-year statute
of limitations found at 5 27-2-202(l), MCA, which pertained to
written contracts applied. The defendants contended that the
two-year statute of limitations found at 5 27-2-211(l), MCA, which
pertained to "liabilities created by statute" applied.
We concluded that the plaintiffs' complaint sounded in
contract, tort, and statutory violation. We then held that:
Where there is a substantial question as to which of
two or more statutes of limitations should apply, the
general rule is that the doubt should be resolved in
favor of the statute containing the longest limitations.
Akada v. ParkI2-01 Cop. (1985), 103 Wash.2d 717, 695 P.2d
994, 995. Where doubt exists as to the nature of the
action, courts lean toward application of the longer
period of limitations. Shew v. Coon Bay Loafers, Inc. (Wash.
1969), 455 P.2d 359, 366, citing Hughesv.Reed (10th Cir.
1931), 46 F.2d 435, 440.
"This [general rule] serves the legislative intent
of protecting defendants from stale claims, yet provides
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an approach of liberality which affords a plaintiff
party-litigant maximum free access to our court system.
Although statutes of limitation[s] are primarily designed
to assure fairness to defendants because they prevent
claims from being brought when the relevant evidence is
so old that it is unreliable, the policy of repose is
outweighed when the interests of justice require
otherwise." [Citation omitted.]
Thiel, 710 P.2d at 40.
For these reasons, we held that the eight-year statute of
limitations applied. Thiel, 710 P.2d at 40.
We conclude that our decision in Thiel controls the outcome in
this case. This is not a case where a general statute of
limitations is in conflict with a more specific statute of
limitations. Section 27-2-204(l), MCA, is a specific statute of
limitations which is based on the type of obligation which gives
rise to plaintiffs' claim. Section 27-2-207, MCA, on the other
hand, is a specific statute of limitations based upon the nature of
damage incurred by plaintiffs. However, in a situation such as
this, where the basis for plaintiffs' claim is defendants'
negligence, and the damages alleged are to plaintiffs' property,
the statutes are in conflict. We hold that in these circumstances
where there is a substantial question regarding which of two
statutes of limitations should apply, the District Court should
have applied the general rule that any doubt should be resolved in
favor of the statute containing the longer limitation. This
conclusion best furthers the public policy recognized in Thiel which
9
affords **a plaintiff party-litigant maximum free access to our
court system." 710 P.2d at 40.
For these reasons, we hold that the statute of limitations
applicable to plaintiffs' claim is § 27-2-204(l), MCA, which
pertains to claims based on allegations of negligence. The
judgment of the District Court is reversed and this case is
remanded to the District Court for further proceedings consistent
with this opinion.
We concur:
/ Chief Justice
October 6. 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Kevin C. Meek, Esq.
Alexander, Baucus & Linnell
P.O. Box 2629
Great Falls, MT 59403
John D. Alexander & Neil E. Ugrin
Ugrin, Alexander, Zadick & Slovak, P.C.
P.O. Box 1746
Great Falls, MT 59403
Thomas E. Boland
Attorney at Law
P.O. Box 2949
Great Falls, MT 59403
ED SMITH
CLERK OF THE SUPREME COURT
STAT@ O F M O N T A N A