NO. 94-153
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
ELIZABETH ANNE RUCINSKY,
Plaintiff and Appellant,
-vs-
RAYMOND A. HENTCHEL,
Defendant and Respondent.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert D. Morrison; Morrison Law Firm,
Havre, Montana
For Respondent:
Robert J. Vermillion; Smith, Walsh, Clarke &
Gregoire, Great Falls, Montana
Submitted on Briefs: July 6, 1994
SEP 1 5 1994 Decided :
. . September 1 5 , 1 9 9 4
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Elizabeth Ann Rucinsky (Rucinsky) appeals the order of the
Twelfth Judicial District Court, Hill County, dismissing her
invasion of privacy action pursuant to S 27-2-204, MCA. We affirm.
The sole issue presented is whether the District Court erred
in granting Raymond Hentchel's (Hentchel) motion for summary
judgment on the basis that the applicable three-year statute of
limitations period began to run in 1988, rather than 1992, thereby
barring Rucinsky's cause of action.
From 1986 to 1988, Rucinsky and Hentchel were in a dating
relationship. In January 1988, Hentchel met Rucinsky at the Great
Falls airport to drive her home to Havre after an out-of-state
business trip. Rucinsky testified that, on the ride home, Hentchel
was very upset, accused her of seeing other men, and told her that
he had ggbugged,gg planted a listening device in her phone and her
or
bed, and had someone watching her through her bedroom window.
Rucinsky requested to hear the tape recordings of her phone
conversations, and Hentchel agreed to play them for her, however
neither party pursued the issue further. Rucinsky testified she
did not take Hentchel seriously at the time because all of his
claims, taken together, seemed ludicrous and exaggerated. Several
weeks later Hentchel and Rucinsky ended their relationship.
In January or February, 1992, Julie, Hentchel's wife at that
time, called Rucinsky to inform her that she had discovered
cassette tapes of Rucinsky's phone conversations in a locked
drawer. According to Julie, some tapes were labeled with
Rucinskyts name while others were labeled with Julie's name,
indicating that Hentchel had recorded both Rucinskyts and Julie's
phone conversations. In his deposition, Hentchel admitted that
during their relationship he had recorded some of Rucinskytsphone
conversations. He also confessed to recording Julie's phone
conversations for several months after they were married.
On November 23, 1992, Rucinsky filed a complaint in District
Court claiming that Hentchel violated her privacy by taping her
telephone conversations. The District Court granted Hentchel's
motion for summary judgment holding Rucinsky's action was barred by
1 the three-year statute of limitations. ~ucinskyappeals.
A motion for summary judgment is properly granted only when
there are no genuine issues of material fact and the moving party
is entitled to a judgment as a matter of law. Rule 56(c),
M.R. Civ.P. The party opposing the summary judgment is entitled to
have any inferences drawn from the factual record resolved in her
favor. Boylan v. Van Dyke (1991), 247 Mont. 259, 266, 806 P.2d
1024, 1028.
Pursuant to 27-2-204, MCA, the applicable statute of
limitations period for an action on a liability not founded upon an
instrument in writing is three years. Pursuant to 1 27-2-102(2),
MCA, the period of limitation begins when the cause of action
accrues. Section 27-2-102 (1)(a), MCA, states in relevant part that
a cause of action accrues when all its elements exist or have
occurred, the right to maintain an action is complete, and a court
is authorized to accept jurisdiction.
An invasion of privacy cause of action is defined as a
"wrongful intrusion into one's private activities in such a manner
as to outrage or cause mental suffering, shame, or humiliation to
a person of ordinary sensibilities. Sistok v. Northwestern
Telephone Systems, Inc. (1980), 189 Mont. 82, 92, 615 P.2d 176,
182. Hentchel contends that the statutory period began in 1988
when he first informed Rucinsky of the recordings. Rucinsky
contends that a reasonable person would not have taken Hentchel
seriously at that time and, therefore, the statutory period did not
begin until 1992 when the recordings were discovered. Until that
time, Rucinsky argues, there was insufficient evidence to support
a "right to maintain an action," pursuant to 5 27-2-102 (1)(a), MCA.
In 1988, Hentchel confessed to Rucinsky that he was tapping
her phone. In addition to the confession, ~ucinskytestified that
there were times when Hentchel mysteriously @@appearedl1 the scene
on
even though Rucinsky had not previously informed him of her
intended plans. Rucinsky testified that her suspicions were
further intensified when Hentchel recited one of her private
conversations verbatim, but she concluded that perhaps he was
merely listening at the door.
Phone tapping of private, confidential conversations
constitutes a wrongful intrusion into one's private activities in
a manner likely to cause outrage, mental suffering, shame, or
humiliation to an ordinary person. See Sistok, 615 P.2d at 182;
LaCrone v. Ohio Bell Telephone Co. (Ohio Ct. App. 1961), 182 N. E. 2d
15; Housh v. Peth (Ohio 1956), 133 N.E.2d 340. That Rucinsky chose
not to believe Hentchells confession does not negate the I1existence
of the elementsttof her cause of action in 1988. Section 27-2-
102(l)(a), MCA. Police testimony and the record demonstrate that
in 1988 Rucinsky was suspicious or had reasonable grounds to be
suspicious that her privacy had been invaded. We conclude that
Rucinsky had the "right to maintain her actionw in 1988 when she
was put on notice that Hentchel taped her conversations. The right
to the cause of action began regardless of whether she was
convinced of the success of such an action.
Alternatively, Rucinsky contends that Hentchells fraudulent
concealment tolled the statutory period until 1992 when the tapes
actually were discovered. The doctrine of fraudulent concealment,
as recognized in Montana, tolls the statute of limitations until
the cause of action is discovered or could have been discovered
through due diligence. Knight v. City of Missoula (1992)) 252
Mont. 232, 239, 827 P.2d 1270, 1274; citing Johnson v. St.
Patrick's Hospital (1966), 148 Mont. 125, 129, 417 P.2d 469, 471.
Section 27-2-102(3), MCA, is essentially a codification of the
common law doctrine of fraudulent concealment as it applies to the
tolling of the statutory period:
The period of limitation does not begin on any claim
or cause of action for an injury to person or property
until the facts constituting the claim have been
discovered or, in the exercise of due diligence, should
have been discovered by injured party if:
(b) . . . the defendant has taken action which
prevents the injured party from discovering the injury or
its cause.
Section 27-2-102(3), MCA.
Rucinsky contends that the recordings were the only reliable
evidence for her invasion of privacy claim, they were fraudulently
concealed by Hentchel in his locked drawer until discovered by
Julie in 1992, and, therefore, the statutory period was tolled
until that discovery. We disagree.
In 1988, when Hentchel confessed to the phone tapping,
Rucinsky declared that she would like to hear the tapes 81sometime.
Hentchel responded that he would play them for her. Based on these
facts, Rucinskyfs argument that Hentchel concealed the tapes fails
because he told her he had them and agreed to her request to hear
them. Within several weeks, Hentchel and Rucinsky ended their
relationship. Hentchel eventually married Julie, and, in their
home, he stored the tapes in his private, locked drawer. Hentchel
did not conceal the tapes; he maintained their control. His
actions do not support concealment as Rucinsky argues.
Accordingly, the District Court was correct in granting
Hentche18s motion for summary judgment, thereby dismissing
Rucinsky8s invasion of privacy cause of action.
We affirm the District Court.
L
We concur:
' chief Justice
Justice William E. Hunt, Sr., dissenting.
I dissent from the majority opinion. Rucinsky first learned
of the telephone tapping from Hentchel in 1988, during a heated
discussion about her alleged infidelity. During this discussion,
Hentchel also claimed that he had someone watching Rucinsky through
her bedroom window, and that he had planted a listening device in
her mattress. Rucinsky asked to hear the telephone tap tapes.
Although Hentchel agreed to produce the tapes, he never did.
Likewise, no one was discovered watching Rucinsky through her
bedroom window, and no listening device was discovered in her
mattress. As a result, Rucinsky did not take Hentchells claims
seriously. However, four years later, on February 8, 1992,
Hentchells wife, Julie, discovered the tapes hidden under lock and
key in a dresser drawer. Julie Hentchel then shared her discovery
with Rucinsky. Four years after Hentchel made his claims, Rucinsky
had proof that the tapes existed and that her privacy had been
invaded.
On November 23, 1992, within nine months of hearing the tapes
for the first time, Rucinsky filed her complaint claiming Hentchel
violated her privacy by recording her phone conversations.
Pursuant to Rule 11, M.R.Civ.P., a complaint must be llwell
grounded in fact.I1 Rucinsky's complaint could not have possibly
been well grounded in fact had she filed within the three year
period from the time Hentchel claimed he had recorded her telephone
calls, spied on her bedroom, and bugged her mattress. However, the
complaint Rucinsky filed on November 23, 1992, was clearly well
grounded in fact, given Julie Hentchells discovery.
For the purpose of statutes of limitation, a cause of action
accrues when all the elements of the cause exist and the right to
maintain an action on the cause is complete. Section
27-2-102 (1)(a), MCA. Invasion of privacy constitutes a wrongful
intrusion into private activities that outrages a person of
ordinary sensibilities and causes mental suffering, shame, or
humiliation. Sistok v. Northwestern Telephone Systems, Inc.
(1980), 189 Mont. 82, 92, 615 P.2d 176, 182. The elements of this
cause of action came into existence when Rucinsky heard the tapes
for the first time on February 8, 1992. Prior to this time
Rucinsky understandably dismissed Hentchells claim of phone
tapping, as she did his other false claims.
A statute of limitations is tolled when a defendant
fraudulently conceals the facts constituting the claim or prevents
the injured party from discovering the injury or its cause. The
statute remains tolled until the cause of action is discovered or
could have been discovered through due diligence. Section
27-2-102(3) (a) and (b), MCA; see also Knight v. City of Missoula
(1992), 252 Mont. 232, 239, 827 P.2d 1270, 1274; Johnson v.
St. Patrick's Hospital (1966), 148 Mont. 125, 129, 417 P.2d 469,
471. Although Hentchel promised to deliver the tapes to Rucinsky
in 1988, he failed to deliver. Instead, he kept the tapes locked
away and concealed from not only Rucinsky, but also from his wife,
whose phone conversations he had also recorded. By failing to
deliver the tapes as promised, and by concealing the tapes under
lock and key thereafter, Hentchel prevented Rucinsky from
discovering the injury or its cause. This constitutes fraudulent
concealment sufficient to toll the statute of limitations until
February 8, 1992.
I would reverse the District Court's granting of Hentchel's
motion for summary judgement.
Justice Terry N. Trieweiler joins in the foregoing dissent.