NO. 88-526
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
ROY WEIBLE,
plaintiff and Appellant,
-vs-
RONAN STATE BANK,
Defendant and Respondent.
APPEAL FROM: District Court of the ~wentieth~udicial~istkict,
In and for the County of Lake,
The Honorable C. B. ~ c ~ e i l ,
Judge presiding.
COUNSEL OF RECORD:
For Appellant:
~ i c h a e lF. ~ a i l e y ;Joseph M. Goldman Law offices,
Missoula, Montana
For Respondent:
Sam E. Haddon; Boone, Karlberg & Haddon, h is sou la,
Montana
Ingraham Law Office, Ronan, Montana
submitted on ~riefs: ~ p r i l6, 1989
Decided: July 19, 1989
Filed:
Mr. Justice ~ i l l i a mE. Hunt, Sr. delivered the Opinion of the
Court.
Plaintiff Roy Weible appeals from an order of the
Twentieth Judicial District Court, Lake County, dismissing
his complaint against defendant Ronan State Bank. We affirm.
The dispositive issue raised on appeal is as follows:
Were the claims asserted by ~ e i b l e in his complaint
based solely on a tort action for injury to or trespass on
property, and, as such, barred by a two-year statute of
limitations?
~eginningin 1973, Roy Weible and his wife, Alta Weible,
executed several new and renewal promissory notes to Ronan
State Bank. As collateral securing the performance of the
notes, the Weibles executed and delivered to the Bank an
assignment of their buyers' interest in certain real
property, a mortgage upon that property and a security
agreement covering personal property.
As of September 9, 1985, the promissory notes were in
default. The Bank initiated an action to obtain judgment
upon the notes and a decree of foreclosure of the real
property. On May 28, 1986, a hearing on the Bank's motion
for summary judgment was held, at which time counsel for the
Weibles stipulated to the summary judgment and agreed no
defenses could be raised. The formal judgment and decree of
foreclosure was entered on August 4, 1986.
On June 3, 1986, after the hearing on summary judgment
but prior to the entry of judgment, agents of the Bank
entered onto Roy Weible's real property and removed farm
machinery used as collateral in the personal property
security agreement. On August 3, 1988, more than two years
after the removal of the machinery, Weible filed a complaint
against the Bank and Stedje Brothers, Inc., alleging that the
Bank breached the security agreement by failing to give ten
days notice prior to seizure of the farm machinery as
required by the agreement, trespassing upon his property and
wrongfully removing the equipment. On August 5, 1988, Weible
filed an amended complaint, dropping Stedje Brothers as a
defendant.
In response to the complaint, the Bank filed a motion to
dismiss. After a hearing, the District Court granted the
Bank's motion on the grounds that Weible's claims were barred
by the statute of limitations, the doctrine of res judicata
and the compulsory counterclaim rule.
On appeal, Weible contests each of the grounds upon
which the District Court based its determination. We will
not discuss the res judicata and compulsory counterclaim
questions, however, because the statute of limitations issue
is dispositive of the appeal.
Weible argues that the District Court erred in
concluding that the action against the Bank was barred by the
statute of limitations. The District Court held that
~eible's complaint rested solely on the tort theories of
trespass on and injury to real and personal property, and,
therefore, the complaint was barred by § 27-2-207, MCA, the
two-year statute of limitations pertaining to actions
involving injury to property. Weible argues that his
complaint was also based on breach of the security agreement,
and, therefore, the action was governed by 27-2-202(l),
MCA, the eight-year statute of limitations pertaining to
actions involving breach of a written contract.
In determining which statute of limitations applies, the
court will look to the substance of the complaint. If the
gravamen of the action rests strictly on tort theories, the
statute of limitations pertaining to torts will apply.
Likewise, if the gravamen of the action rests strictly on
contract theories, the statute of limitations pertaining to
contracts will apply. ~astillov. Franks (1984), 213 Mont.
232, 239, 690 P.2d 425, 428; Quitmeyer v. Theroux (19641, 144
Mont. 302, 311, 395 P.2d 965, 969. If the gravamen of the
action is such that it may rest either in tort or contract,
the injured party may elect the theory he will pursue and the
statute of limitations governing the elected theory will
apply. Unruh v. Buffalo Bldg. Co. (Mont. 1981), 633 P.2d
617, 618, 38 St.Rep. 1156, 1158. If doubt exists as to the
gravamen of the action, the longer statute of limitations
will apply. hi el v. Taurus ~rillingLtd. 1980-11 (1985),
218 Mont. 201, 212, 710 P.2d 33, 40.
In his amended complaint, Weible alleged the following:
That on or about the 3rd day of June, 1986,
Defendant Ronan State Bank through two (2) of its
acting agents . .. trespassed upon the farm
property of Plaintiff's and wrongfully removed the
Plaintiff's farm machinery.
[TIhe security agreement . .
. states that a ten
(10) day notice shall be given to the party in
default to surrender the collateral at a mutually
agreed time and place. That the Defendant Ronan
State Bank breached this security agreement in
trespassing upon Plaintiff's property and
wrongfully removing his farm machinery. his was
done before final judgment was made and entered in
the real property foreclosure and done without the
required notice to the party in default.
Defendant Ronan State Bank willfully and
maliciously trespassed upon Plaintiff's farm
property and with willful and malicious intent,
wrongfully removed Plaintiff's farm machinery.
This was done in an oppressive way and/or manner
which violated the rights of Plaintiff with
unnecessary harshness and/or severity as Defendant
Ronan State Bank misused and abused their [sicl
authority and power when they [sic] breached the
security agreement.
Weible argues that these allegations set out a breach of
contract action. Indeed, viewed in the light most favorable
to Weible, the complaint does allege a breach of the security
agreement for failure to give notice. However, the injuries
claimed as a result of the breach of contract--the trespass
and wrongful removal of farm machinery--constitute tort
theories of action. Although the injuries to Weible may have
originated in breach of contract, the acts causing his
damages sound in tort. Therefore, the gravamen of the action
is in tort, not contract, and the tort statute of limitations
applies. Quitmeyer, 144 Mont. at 311, 395 P.2d at 969.
A two-year statute of limitations governs actions
arising from trespass to and conversion of property. Section
27-2-207, MCA. The injury in question occurred on June 3,
1986. The complaint was filed in August, 1988--over two
years later. The action is barred by the two-year statute of
limitations.
Af firmed.