Rouse v. Anaconda-Deer Lodge County

NO. 91-169

IN THE SUPREME COURT OF THE STATE OF
1991

JAMES ROUSE,
Plaintiff and Appellant,
-VS-

ANACONDA-DEER LODGE COUNTY, and JOSEPH MARTELLI, individually and
in his capacity as law enforcement officer of Anaconda-Deer Lodge
County, and EDWARD CUTLER, individually and in his capacity as law
enforcement officer of Anaconda-Deer Lodge County,
Defendants and Respondents.

APPEAL FROM: District Court of the Third Judicial District,
In and for the county of Deer Lodge,
The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Jay F. Lansing: Moses Law Firm, Billings, Montana.
For Respondent:
Jon R. Binney; Milodragovich, Dale & Dye, Missoula,
Montana.

Submitted on briefs: July 25, 1991
Decided: September 11, 1991
Filed:

I .
'Clerk
Justice R. C. McDonough delivered the Opinion of the Court.

This appeal involves allegations of police brutality. The
plaintiff James Rouse appeals the order of the Third Judicial
District Court, Anaconda-Deer Lodge County, granting summary
judgment to the defendants Anaconda-Deer Lodge County (County) and
officers Joseph Martelli and Edward Cutler. The court granted the
defendants' motion on the grounds that the plaintiff's claims were
barred by the statute of limitations. We reverse and remand the
case for further proceedings.
Rouse raises the following issue on appeal:
Did the District Court err in granting the defendants' motion
for summary judgment on the grounds that Mr. Rouse's claims were
barred by the statute of limitations set forth in § 27- 2- 203, MCA?
The incidents giving rise to the allegations in Rouse's
complaint occurred on October 25, 1984. We will not describe the
details of these allegations at length, as they are not material
to our determination of the issues on appeal. It is sufficient for
us to note that Rouse alleges that he was stopped by Officers
Cutler and Martelli while urinating in a doorway and was brutally
beaten without justification or cause. After the incident, Rouse
was charged with misdemeanor attempted assault on Officer Martelli.
In their amended answer dated April 27, 1990, the defendants raised
the affirmative defense of the statute of limitations arguing that
it barred all of Rouse's claims. The County moved the court for
summary judgment on June 25, 1990. For purposes of this motion,
Rouse conceded that there was no evidence that Officer Cutler took

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part in the alleged assault. The court granted the motion on
January 30, 1991. The court ruled that the defendants were not
entitled to immunity under 5 2- 9- 111, MCA, and that § 27-2-204(3),

MCA, was the applicable statute of limitations and the statute
barred Rouse's claims. Plaintiff filed this appeal regarding the
statutory bar of his claims for assault and malicious prosecution.
He has not appealed the disposition of his claim of failure to
provide medical treatment.
I. DEFENDANT COUNTY
The District Court ruled that Rouse's claims of assault
against officers Martelli and Cutler were barred by 5 27-2-204(3),

MCA. Rouse argues that § 27- 2- 209, MCA, a three year statute of
limitations concerning liability incurred by a sheriff, coroner,
or constable, provides the applicable limitation period in this
case. Rouse also argues that § 27- 2- 209, MCA, allows a plaintiff
to file a lawsuit within six months after his claims are rejected
by a county, and that because the county has yet to reject his
claims, the six month statute has not begun to run against him.
Actions against the state and political subdivisions are
governed by Title 2, Chapter 9, Part 3 , MCA. The statutes provide
in pertinent part:
2-9-301. Filing of claims against state and
political subdivisions --
disposition by state agency as
prerequisite. (1) All claims against the state arising
under the provisions of parts 1 through 3 of this chapter
must be presented in writing to the department of
administration.
(2) A complaint based on a claim subject to the
provisions of subsection (1) may not be filed in district
court unless the claimant has first presented the claim
to the department of administration and the department
 has finally denied the claim. The department must grant
or deny the claim in writing sent by certified mail
within 120 days after the claim is presented to the
department. The failure of the department to make final
disposition of a claim within 120 days after it is
presented to the department must be considered a final
denial of the claim for purposes of this subsection. Upon
the department's receipt of the claim, the statute of
limitations on the claim is tolled for 120 days. The
provisions of this subsection do not apply to claims that
may be asserted under Title 25, chapter 20, by third-
party complaint, cross-claim, or counterclaim.
(3) All claims aqainst a uolitical subdivision
arisins under the urovisions of Darts 1 throuqh 3 shall
be oresented to and filed with the clerk or secretary of
the uolitical subdivision. (Emphasis added.)
Thus, the statutory requirements enacted by the legislature mandate
a plaintiff asserting a cause of action against a governmental
entity to first file a claim against that entity before filing an
action in district court. The purpose of such statutes is the
furtherance of the public policy to prevent needless litigation and
to save unnecessary litigation expenses by affording an opportunity
to amicably adjust and settle all claims before suit is brought.
See 56 Am.Jur.2d, Municipal Coruorations, 5 686, p. 730 (1971).
The statutes also provide a limitation period for such claims:
2-9-302. T i m e for filing --
limitation of actions. A
claim against the state or a political subdivision is
subject to the limitation of actions provided by law.
In this case, the parties dispute whether Rouse's causes of action
are governed by a two year or a three year statute of limitation.
See §§ 27-2-209(1), 27-2-204(1) and (3), MCA. We will discuss the
applicability of these sections in greater detail with respect to
the individual defendants later in this opinion. With respect to
the County, Rouse filed a claim on August 15, 1986, approximately
22 months after the incident. Thus, regardless of whether a two

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or three year limitation period applies, Rouse's claim against
the County was timely filed with the County within two years of the
incident. The record indicates that no action was taken by the
County in approving or denying the claim. With respect to causes
of action filed on a claim against a county political subdivision,
the statutes provide that "[alctions for claims against a county
which have been rejected by the county commissioners must be
commenced within 6 months after the first rejection thereof by such
board." Section 27-2-209(3), MCA.
With respect to claims against the state, 5 2-9-301, MCA, set
forth above, provides that the department of administration must
grant or deny a claim against the state within 120 days after
presentation to the department. Expiration of the 120 day period
with no final disposition of the claim is deemed a denial of the
claim. The statute's title indicates that disposition of the claim
by a state agency is a prerequisite to filing an action in district
court. The statutes do not provide a shortened limitation period
to file an action on a claim against the state once the claim is
denied, as is the case with the six month period for actions on
claims against a county.
With respect to claims against political subdivisions, the
statutes do not state that a final disposition of the claim before
a local tribunal is a prerequisite to filing an action in district
court. The statutes also do not provide an automatic denial period
for claims made against a county or political subdivision similar
to the 120 day period for claims against the state. Here, Rouse's

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claim against the County was subject to a six month limitation
period after denial by the appropriate body, but no such denial
occurred and the statutes do not provide an automatic denial period
applicable in this case.
Some jurisdictions have dealt with this problem by holding
that the plaintiff must file his action within a reasonable time
after presentation of the claim should the government entity fail
to act upon the claim. See Annotation, Limitation period as
affected by reauirement of notice or presentation of claim aqainst
qovernmental body, 3 A.L.R.2d 711, 5 10 (1949). We hesitate to
legislate what a reasonable time would be after presentation of a
claim before it should be deemed denied.
Furthermore, we think that the reasoning of the Wisconsin
Supreme Court in Gutter v. Seamandel (Wis. 1981), 308 N.W.2d 403,

applies to this case. In Gutter, the court discussed the
applicability of a statute [Wis. Stat. 1975 5 62.25(1)(e)]
providing a six month limitation period after rejection of a claim
and requiring the tribunal to serve the claimant with a notice of
disallowance. In holding that this statute applied rather than a
statute providing a 90 day disallowance period when the council
fails to act [Wis. Stat. 1975 5 345.051, the court stated:
Our interpretation is also consistent with the public
policy justifications for statutes of limitation.
Statutes of limitation are imposed to ensure prompt
litigation of valid claims and to protect a defendant
from fraudulent or stale claims. Armes v. Kenosha
County, 81 Wis.2d 309, 319-320, 260 N.W.2d 515 (1977).
Interpreting sec. 62.25 (1)(e) to apply does not unduly
lengthen the period during which suit may be commenced.
On the contrary, the lensth of the period is controlled
by the council which has only to serve notice of

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 disallowance in order to start the six month period
within which the action must becrin. In this respect,
sec. 345.05, not requiring proof of service of notice of
disallowance, does little to ensure prompt litigation;
such a statute is more likely to deprive unwary
plaintiffs of the opportunity to litigate. (Emphasis
added. )
Gutter, 308 N.W.2d at 414. Here, after Rouse filed his timely
claim with the County, the County had notice of pending claims
against it and also controlled the commencement of the six month
limitation period. It would be inherently unfair to require Rouse
to file a timely claim against the County before filing an action
in District Court and then to penalize him for the County's failure
to act, or stalling on the claim. We hold that under §§ 2-9-302

and 27-2-209(3), MCA, the initial period of limitation for claims
against a county is tolled upon timely filing of the claim and the
six month period of limitation for filing an action in district
court does not begin to run until the claimant receives notice of
the county board's first denial of the claim.
11. DEFENDANTS MARTELLI AND CUTLER
A. Malicious Prosecution Claim
The District Court held that 5 27-2-204, MCA, is the statute
of limitation applicable to the claims of assault and malicious
prosecution against the individual defendants Martelli and Cutler.
The statute provides:
27-2-204. Tort actions --- general and personal injury.
(1) Except as provided in 27-2-216, the period prescribed
for the commencement of an action upon a liability not
founded upon an instrument in writing is within 3 years.
(2) The period prescribed for the commencement of an
action to recover damages for the death of one caused
by the wrongful act or neglect of another is within 3
years.

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 (3) The period prescribed for the commencement of an
action for libel, slander, assault, batterv, false
imprisonment. or seduction is within 2 years. (Emphasis
added. )
Subsection (3) provides a two year limitation period for specific
intentional torts. Subsection (1) provides a residual three year
limitation period for torts not specifically enumerated in the
statute. The District Court held that Rouse's claims of assault:
and malicious prosecution were barred by subsection (3), stating:
The Court has already concluded that the assault . . .
was not a lawful act committed in the lawful discharge
of an official duty. Therefore, the specific two year
statute for assault still applies even if the claim
presented to Anaconda-Deer Lodge County was never acted
upon. This same logic applies to the malicious
prosecution claims which stem from alleqations of false
reports bv the Officers involved. The statute of
limitations for fraud is also two years as set out in
Section 27-2-203, MCA. (Emphasis added.)
Thus the District Court held that Rouse's claim of malicious
prosecution was based on fraud and the two year limitation period,
rather than the three year residual limitation period, applies.
See § 27-2-203, MCA.

We need not determine in this case whether a cause of action
for malicious prosecution is governed by the two year rather than
the three year statute of limitations.
[A] claim or cause of action accrues when all elements
of the claim or cause exist or have occurred, the right
to maintain an action on the claim or cause is complete,
and a court or other agency is authorized to accept
jurisdiction of the action. . . .Unless otherwise
provided by statute, the period of limitation begins when
the claim or cause of action accrues.
Section 27-2-102, MCA; Kitchen Krafters v. Eastside Bank (1990),
242 Mont. 155, 161-62, 789 P.2d 567, 571; see also Heckaman v.

8
Northern Pac. Ry. Co. (1933), 93 Mont. 363, 375-76, 20 P.2d 258,
261. The elements of the tort of malicious prosecution are:
1. A judicial proceeding commenced against the
party alleging malicious prosecution:
2. the other party's responsibility for instigating
the proceeding;
3. a want of probable cause for the other party's
action;
4. the existence of malice as the motivator behind
the other party's action;
5. the termination of the proceedins in favor of
the allecrins Dartv; and
6. damages suffered by the party alleging malicious
prosecution. (Emphasis added.)
First Bank (N.A.) Billings v . Clark (19891, 236 Mont. 195, 204-
05, 771 P.2d 84, 90. The complaint alleges that Rouse was tried
by a jury on March 13 and 14, 1986 and acquitted of the assault
charge. The judgment is not part of the record. Assuming Rouse's
allegations are true, his cause of action for malicious prosecution
did not accrue until the acquittal. Rouse filed his cause of
action in District Court on October 22, 1987. Assuming he was
acquitted in March of 1986, his claim of malicious prosecution
falls within either a three or two year statute of limitation and
thus would not be barred.
B. Assault Claim Asainst Officer Martelli
The District Court ruled that the assault cause against the
individual defendants was barred by 5 27-2-204(3), MCA, the two
year statute of limitation for assault claims. Rouse argues that
because the defendants are law enforcement officers of Anaconda-
Deer Lodge County, his cause of action is governed by a different
statute, namely 5 27-2-209(1), MCA. The latter provides:
27-2-209. Actions against local government or local

9
 government official. (1) The period prescribed for the
commencement of an action against a sheriff, coroner, or
constable upon a liability incurred by the doing of an
act in his official capacity and in virtue of his office
or by the omission of an official duty, including the
nonpayment of money collected upon an execution, is
within 3 years; but this subsection does not apply for
an action for an escape.
The District Court ruled that this section does not apply "because
none of the officials listed in the statute are involved in the
instant case."
We agree. There is authority that the statute does not apply
to these types of actions, see Dixon v. Seymour (N.Y. 1978)' 405
N.Y.S.2d 320, 321-22; Ingo v. Koch (2d Cir.1942), 127 F.2d 667,

671; 80 C.J.S., Sheriffs and Constables, Sec. 151(b) (1953).
However, even assuming they do apply, neither Officer Martelli nor
Officer Cutler is a sheriff or coroner within the plain meaning of
the statute. Rather, they are law enforcement officers of a
consolidated city-county government entity. Furthermore, they are
not *lconstables"
within the true meaning of that word. Black's Law
Dictionary (6th Edition 1990) defines constable as
[a]n officer of a municipal corporation (usually elected)
whose duties are similar to those of the sheriff, though
his powers are less and his jurisdiction smaller. He is
to preserve the public peace, execute the process of
magistrates' courts, and of some other tribunals, serve
writs, attend the sessions of the criminal courts, have
the custody of juries, and discharge other functions
sometimes assigned to him by the local law or by statute.
Powers and duties of constables have generally been
replaced by sheriffs.
We also note that in at least one other jurisdiction where a
similar statute of limitation has been held to apply to the
tortious acts of law enforcement officials, the statute contains

10
the words "peace officer" rather than "sheriff" and "constable.'I
See Jenkins v. Daniels (Aka. 1988), 751 P.2d 19, 21. On the other

hand, the wording of 5 27-2-209(1), MCA, is virtually unchanged
from the original statute contained in the Field Code and first
enacted in New York in 1829. See Dixon, 405 N.Y.S.2d at 321. If
the legislature intended this limitation period to apply to all
"peace officers" for all their tortious acts, it could have so
amended it. Thus, the two year statute of limitation contained in
5 27-2-204(3), MCA, applies to Rouse's assault claim against
Martelli, and it is thus barred.
111. DEFENDANTS' ISSUE

In their response brief, the defendants attempt to raise the
following issue, in the event that we reverse on the statute of
limitation:
Did the District Court err in determining that the defendants
are not protected from suit based on the immunity provided in 5 2-
9-111, MCA?
The record indicates that the defendants have failed to
properly preserve this issue for appeal by filing timely cross-
appeal on this issue.
Although Rule 14 [M.R.App.Civ.P.] provides for review of
matters by cross-assignment of error, this does not
eliminate the necessity for cross-appeal by a respondent
who seeks review of rulings on matters separate and
distinct from those sought to be reviewed by the
appellant.
Johnson v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d 266, 268.
Thus, we are precluded from reviewing this issue on appeal.
In summary, Rouse's assault claim against Officer Martelli is

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barred by 5 27-2-204(3), MCA. Rouse's claims against the
individual officers for malicious prosecution and his claim against
the County are not barred, and we reverse the District Court's
order to that extent. AFFIRMED in part and REVERSED and REMANDED
for further proceedings consistent with this opinion.

We Concur:

Justices

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Justice Fred J. Weber specially concurs as follows:

I agree with the holding of the majority opinion that the
cause of action was not barred by the statute of limitations
contained in 5 27-2-204(3), MCA. I base my concurrence upon my
conclusion that the plaintiff filed his action within a reasonable
time after presentation of the claim to the governmental entity.
That rationale is not specifically approved in the majority
opinion.
As quoted in the majority opinion, 5 2-9-301, MCA, provides
that claims against the State of Montana must be presented to the
Department of Administration and the Department must grant or deny
the claim in writing sent by certified mail within 120 days.
Failure of the Department to make a final disposition within 120
days after presentation "must be considered a final denial of the
claim." In addition, the statute of limitations on the claim is
tolled by 120 days.
Unfortunately the legislature did not make any provision with
regard to the time limitations on claims made to a political
subdivision. Under paragraph (3) of the same code section, such
claims are required to be presented to the clerk or secretary of
the political subdivision. There is no reference to the manner of
responding on the part of the political subdivision or its clerk,
nor is there any reference to an extension for statute of
limitation purposes. I would hope that this absence will be noted
by the legislature and cared for in future legislation.
While I generally agree that this Court should not legislate
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on matters, I question that the application of a reasonable time
standard constitutes legislation for this purpose. Here plaintiff
waited more than 14 months after filing his claim with the City-
County before he filed his complaint in District Court.
Notwithstanding that wait, because the complaint was filed within
three years of the original date of injury, I conclude that the
filing occurred within a reasonable time. I therefore join in the
majority opinion.
The holding of the majority indicates there is no time
limitation which begins to run until the claimant actually receives
notice of the County Board's denial of the claim. Had the
plaintiff here delayed 14 years from the filing of his claim to the
filing of the District Court complaint, I would conclude that was
an unreasonable time which barred his right to recover.
The majority has also provided that the six month period of
limitation does not begin to run until the claimant "receives
notice" of the denial of his claim. That is even more strict than
the statutory requirement with regard to the State of Montana,
which only requires the State to send their denial by certified
mail. I do not agree with that conclusion.

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 September 11, 1991

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

Jay F. Lansing
Moses Law Firm
P.O. Box 2533
Billings, MT 59103

Jon R. Binney
Milodragovich, Dale & Dye
P.O. Box 4947
Missoula, MT 59806

ED SMITH
CLERK OF THE SUPREME COURT
S T A m F MONTANA
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