NO. 94-596
IN THE SUPREME COURT OF THE STATE OF MONTANA
BUTTE-SILVER BOW, a government entity,
Defendant and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Brian Tierney, Attorney at Law, Butte, Montana
For Respondent:
William M. O'Leary, Corette, Pohlman, Allen,
Black & Carlson, Butte, Montana
Submitted on Briefs: June 8, 1995
Decided: July 17, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The District Court for the Second Judicial District, Silver
Bow County, granted summary judgment for Butte-Silver BOW in this
tort action. Arthur W. Schmidt appeals. We affirm.
The issues are whether the District Judge erred by not
recusing himself, by granting Butte-Silver Bow's motion for summary
judgment, and by denying.Schmidt's motion to amend his complaint.
Schmidt owns real property in Butte, Montana, which is
bordered on one side by a dedicated alley. The alley separates
Schmidt's property from property owned by Leipheimer Ford Sales
Company (Leipheimer) Schmidt rents his property for use as a
horse pasture and has access to the property other than via the
alley.
In 1966, the City Council of the City of Butte directed
Leipheimer to make the alley suitable for public travel. In 1976
Schmidt asked the City of Butte to perform repairs and maintenance
on the alley. The City rejected Schmidt's request.
In April 1978, Schmidt filed a complaint against Leipheimer,
alleging that its construction of a building on its property had
resulted in a change of grade of the alley which caused drain
waters and other material to flow onto his property. That action
was settled in 1979 and dismissed with prejudice.
Schmidt filed the present action in 1992. He alleges nuisance
and negligence on the part of Butte-Silver Bow for failing to
maintain the alley. In September 1994, Schmidt filed a motion to
amend, asking leave to set forth an additional cause of action for
2
breach of the implied covenant of good faith and fair dealing.
In November 1994, the District Court granted Butte-Silver
Bow’s motion for summary judgment. The court ruled that the
applicable statute of limitations was three years and that the
statute began to run no later than 1979. It ruled that Schmidt's
own admissions established that he knew the facts constituting his
cause of action in 1979.
Schmidt's arguments on appeal are not persuasive. He has not
set forth facts which would require the District Judge to recuse
himself absent a motion to disqualify. Although Schmidt now claims
that this action is based on a new building constructed on
Leipheimer's property in 1989, he has admitted by deposition that
there had been no change in the alley since 1979, when it was
graded so that the water ran off onto his land. His claims are
thus time-barred under § 27-2-204, MCA. The proposed claim of
breach of the covenant of good faith and fair dealing is also time-
barred, under the same statute.
We hold that the District Court did not err on any of the
grounds alleged in this appeal.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to State Reporter Publishing Company an hing Company.
we concur:
July 17, 1995
CERTIFICATE OF SERVICE
I hereby certify that the fi bllowing certified order was sent by United States mail, prepaid, to the
following named:
J. Brian Tiemey
Attorney at Law
1117 W. Broadway
Butte, MT 59701
William M. O’Leary
CORETTE POHLMAN ALLEN BLACK & CARLSON
P.O. BOX 509
Butte, MT 59703
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
-