IN THE SUPREME COURT OF THE STATE OF MONTANA
BETTY RESTIhTINA, Individually, and
as Guardian ad Litem for LAWRENCE
RESTWINA, an incapacitated person,
Plaintiffs and Appellants,
-vs-
THE V I L L A G E BANK and RICHARD OTJSON,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascad.e,
The Honorable Thomas McKittrick, Judge presid-inq.
COUNSEL OF RECORD:
For Appellant:
Cotter & Cotter; Patricia O'Rrien Cotter arqued, Great
Falls, Montana
For Respondent:
Emmons & Coder; Robert Emmons argued, Great Falls,
F-
Montana
c3 :Y J. David Slovak argued; Ugrin, Alexander, Zadick &
N - Slovak, Great Falls, Montana
cl
-
4 r
Submitted: October 13, 1 9 8 8
Decided: January 10, 1989
Filed:?,
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l.3 -
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iJ
ED SMITH
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiff appeals from the dismissal of her complaint
for wrongful discharge. The District Court for the Eighth
Judicial District, Cascade County, ruled that the claim was
barred by the statute of limitations. We reverse j.n part,
affirm in part, and remand to the District Court..
The issues are:
1. Was summary judgment improper because of a factual
question as to whether Lawrence Bestwina was seriouslv men-
tally ill so as to toll the statute of limitations?
2. Does the question of whether the defendants fraud-u-
lently concealed the facts surrounding Mr. Restwinals dis-
charge preclude summary judgment?
Defendant Village Rank has raised as a third issue
whether the District Court's summary judgment is an appeal-
able order. Apparently Village Rank is concerned. because the
summary judgment is entitled as an "order." We conclude that
the title of the document does not render the appeal invalid.
It is clear from the body of the summary judgment order that
it disposes of plaintiff Is cl-aims. We will consider the
appeal.
Lawrence Bestwina was employed as vice president of the
Village Rank in Great Falls, Montana. In March of 1 9 7 7 , he
began treatment with a psychiatrist for depression. In
November 1977, he was discharged from his emplovment. In
January 1978, Mr. Bestwina was hospitalized for depression.
He has since been diagnosed as suffering from chronic bipolar
disorder with manic and depressive episodes. His condition
has deteriorated over the years and has not been controlled.
with medication or electric shock treatments.
The original complaint alleging wrongful discharge was
filed on October 4, 1985, with Mr. Bestwinals wife acting as
his guardian ad litem. The complaint included a consortium
claim on Mrs. Bestwina's behalf. The District Court granted
dismissal of the consortium claim, ruling that the statute of
limitations had passed. Plaintiff then filed an amended
complaint, omitting the consortium claim. After some discov-
ery, defendants Village Bank and Richard Olson, who have
retained separate counsel, both moved for summary judgment on
grounds that the complaint was untimely filed and that the
statute of limitations had run. Plaintiff argued that the
complaint was timely filed because the applicable three-year
statute of limitations was tolled as a result of Mr.
Bestwina's mental illness. Section 27-2-401, MCA, is the
statute which allows tolling:
(1) If a person entitled to bring an action .
. .is, at the time the cause of action accrues, .
. . seriously mentally ill . . .
the time of such
disability is not a part of the time limited for
commencing the action. However, the time so limit-
ed cannot he extended more than 5 years by any such
disability except minority.
Plaintiff also claimed that the defendants fraudulently
concealed the real reason for the termination of Mr.
Bestwina's employment until 1983, and that. the statute of
limitations did not begin to run until then.
The District Court concluded that the fraudulent con-
cealment claim was filed too late because the statute of
limitations for that claim began to run on the date Mr.
Bestwina's employment was terminated. It also concluded that
plaintiff had failed to prove continuous and complete dis-
ability so as to toll the statute of limitations.
I
Was summary judgment improper because of a factual
question as to whether Lawrence Restwina was seriously men-
tally ill so as to toll the statute of limitations?
Summary judgment is proper when there is no genuine
issue as to any material fact and the moving party is enti-
tled to a judgment as a matter of law. Rule 56 (c),
M.R.Civ.P. The District Court concluded that the burden of
proving facts sufficient to toll the statute of limitations
fell on plaintiff. At paragraph 6 of its conclusions of law,
the court stated:
Plaintiff has failed to meet the burden of @stab--
lishing a complete and continuous disability as
required by 5 27-2-401, MCA, to toll the statute oF
1.imitations. . . . The disability must be suffi-
cient to preclude the Plaintiff from comprehending
his 1-egal rights, and such a disability has not
been established. Rather, the record reflects not
only a comprehension of legal rights related to the
alleged termination, but successful pursuit of the
same through various leqal remedies then a~railable.
The defendants contend, as they did in the District Court,
that Mr. Bestwina's pursuit of claims for social securit~
benefits and workers' compensation demonstrate an ahsence o f
serious mental illness.
While we recognize that Mr. Restwina's pursuit of these
claims is certainly proper for consideration on the issue o f
mental illness, we conclude that the pursuit of the claims
does not conclusively establish an ahsence of serious mental
illness. Our conclusion agrees with those of courts in
several other states. Retention of counsel is evidence,
although not conclusive, of a person's legal capacity for
purposes of tolling the statute of limitations. Harrington
v. County of Ramsey (Minn. 1979), 279 N.W.2d 791. In a case
involving facts similar to those of the present case, the
Supreme Court of Alaska stated that,
The fact that [the plaintiff] could actively work
for sometime after the accident, travel, obtain
workmen's compensation benefits and retain an
attorney might support an inference that [the
plaintiff] was not "insane," but this is an issue
to be decided at trial, not on a motion for summary
judgment.
Adkins v. Nabors Alaska Drilling, Inc. (Ak. 1980), 609 P.2d
15, 24. See also Hill v. Clark Equipment Company
(Mich.Ct.App. 1972), 202 N.W.2d 530.
In the present case, Donald Engstrom, M.D., submitted
his affidavit stating that Mr. Bestwina has been under his
psychiatric treatment since March of 1977, about 8 months
prior to his discharge. He stated that in 1978 and during
the next four years, Mr. Bestwina was hospitalized at least
six times for severe depression. He stated that drug therapy
and electroconvulsive treatments had not yielded improvement
in Mr. Restwina's condition and that Mr. Restwina's condition
had deteriorated from 1977 to the date of the affidavit. He
also stated that, "In my opinion, since 19?7 when he com-
menced treatment, Restwina has never returned to his
'pre-1977' self."
The lower court's four pages of findings of fact, along
with the foregoing summary of the positions of the parties,
demonstrate to us the presence of issues of material fact as
to the serious mental illness of Mr. Restwina. This is not a
question which is susceptible to resolution based on written
affidavits, without the benefit of cross-examination in
court. We therefore conclude that there is a material issue
of Fact precluding summary judqment.
For the assistance of the District Court on remand, it
is necessary that we review the pro~risions of S 27-2-40!-,
PICA, as applied to this case. In substance, that statute
provides that if a person is seriouslv mentally il-1 at the
time the cause of action accrues, the time of such disabi'itu
is not counted. We therefore conclude that the District
Court must determine whether or not Mr. Bestwina was serious-
ly mentally ill at the time the cause of action accrued in
November 1 9 7 7 . If the court determines that he was seriously
mentally ill on that date, then the court must consider the
following portion of the statute, which in substance states
that the time of Mr. Bestwina's disability shall not he
considered as a part of the time limit under the statute but
that the time cannot be extended more than 5 years. We
conclude that the District Court then must determine the
period or periods during which the disability continued, and
the total of such time of disability shall not be counted
against Mr. Restwina. While the statute does not specifical-
ly contemplate a separate proceeding prior to trial on the
merits, we conclude that such a separate proceeding is appro-
priate in this case and we therefore direct the District
Court to proceed to make a determination as above set forth
prior to the trial of the cause of action on the merits.
We reverse and remand to the District Court for the
determination of whether Mr. Bestwina has met the require-
ments for the tolling of the statute of limitations because
of his claim of serious mental illness, and for such further
proceedings as are appropriate.
I1
Does the question of whether the defendants fraudulently
concealed the facts surrounding Mr. Bestwina's discharge
preclude summary judgment?
Plaintiff argues that it was not until Richard Olson was
deposed in October 1983 that Mr. Bestwina's counsel was aware
that Mr. Restwina had heen fired in 1 9 7 7 and that the Firinq
was because OF an unrelated personal matter between him and
Mr. Olson. Mr. Restwi-na's counsel submitted his affida~rit
that until October 1983, he believed that Mr. Bestwina had
been placed on a medical leave of absence in 1977. Plaintiff
asserts that under the discovery doctrine, the statute of
Limitations should be tolled until October 1983. In ruling
on this issue, the District Court did not elaborate beyond
stating that it deemed controlling its ruling in the claim
Mrs. Bestwina brought in her own behalf.
Plaintiff points out that dismissal of an action as to a
person in her individual capacity is not res judicata as to a
later action in which that person appears in a representatt~e
capacitv. S-W Co. v. John Wight, Inc. (1978), 179 Mont. 392,
405-06, 587 P.2d 348, 355. Law of the case does not applv
hecause a sl-ightly different issue is presented here. Previ-
ously the court ruled that the discoverv doctrine did not
apply as to Mrs. Bestwina. Here, the question is whether the
discovery doctrine applies as to Mr. Bestwina.
In any event, no authority has been cited which states
that the discovery doctrine, which has been recognized in
other kinds of cases, should be extended to apply in this
case. Nor has plaintiff made a persuasive argument that the
doctrine should be so extended. We decline to expand the
discovery doctrine to cover this situation. We therefore
affirm the District Court's ruling that the plaintiff's
fraudulent concealment claim does not toll the statute of
limitations.
Reversed in part, affirmed in part, and remanded for
further proceedings consistent with this opinion.
We Concur:
Chief Justice
Mr. Justice John Conway Harrison, dissenting.
I dissent. Facts, like figures, can be either
distorted or described in a certain way to achieve a specific
outcome. The District Court spent considerable time in this
case observing all parties involved and I feel the District
Court arrived at the correct decision in granting summary
judgment to the defendants.
Viewing the facts as the District Court did and as I
see them from the record, appellant's husband, Lawrence
Restwina, former vice president of the Village Bank in Great
Falls, did not file his action for wrongful discharge until
eight years after he was separated from his emplovment on
November 6 , 1977. During that eight year period, he
personally pursued a number of legal remedies directly
connected with and based upon his alleged unlawful discharge.
Three years after his discharge, on May 30, 1980, he
personally retained counsel, C.L. Overfelt, to pursue a
Workers' Compensation claim against the defendant Village
Rank. He personally executed a retainer fee and agreement on
that date and signed a claim for compensation on June 10,
1980. That Workers' Compensatj-on claim was brought by
Lawrence Restwina, in his individual capacity, without the
necessity of appointing a guardian ad litem or a conservator.
It is emphasized that this Workers' Compensation litigation
focused on the same discharge from employment as this action.
That claim based upon his discharge, was initially denied,
and a petition for hearing was filed before the Workers'
Compensation Court in Auqust, 1983. That petition for a
hearing and the Litigation involved before the Workers'
Compensation Court, was brought solely in the name of
Lawrence Restwina in his individual capacity, again without
the need of a quardian or a conservator. Through a pretrial
deposition he testified at that court proceeding, and was
listed as a trial witness. At that time no contention of
incompetency was made during the proceedings.
While that Workers' Compensation Court action was
subsequentl~v resolved through a full and final settlement
prior to trial, it was Lawrence Restwina who signed the
petition for a full and final compromise settlement in his
individual capacity, which settlement was approved by the
court.
Of the eight year period which Lawrence Restwina now
claims should be tolled, he obviouslv was competent for four
of those vears.
Additionally, during the time in question, specifically
on July 20, 1979, Lawrence Bestwina personally applied for
social security disability benefits by executing a document
with the Social Security Administration. While that first
application for benefits was denied, he requested a
reconsideration which also was denied. Following that he
requested a hearing with the Social Security Administration.
That hearing was held October 29, 1979. During the hearing
he testified under oath and as a result, disability benefits
were granted in March, 1980.
The entire record reflects, and it is as obvious to me
as it was to the District Court Judge who heard the matter,
that Lawrence Bestwina's actions in obtaining various
benefits, indicates he fully understood his legal rights and
how to exercise them. In my opinion there was not one
instance during the time he used the legal system that he
showed the necessity of having a guardian or conservator
appointed for him. I feel the record shows uncontroverted
facts which illustrate Bestwina failed to prove a continuous
and uninterrupted mental disability.
L would affirm the District Court's holding in finding
that Restwina failed as a matter of law to establish any
entitlement to any exception to the three year statute of
limitations.
Mr. Justice L. C. Gulbrandson joins in the foregoi-nq dissent
of Mr. Justice Harrison.
t
Mr. Chief Justice J. A. Turnage:
I concur in the foregoing dissent of Mr. Justice Harrison.
hief Justice
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