No. 01-851
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 192N
GENE L. WILLISON,
Plaintiff and Appellant,
v.
MARTIN CAHOON, SR.,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gene L. Willison (pro se), Townsend, Montana
For Respondent:
Dean A. Stensland, Cynthia K. Thiel, Boone, Karlberg, P.C., Missoula,
Montana
Submitted on Briefs: May 16, 2002
Decided: August 29, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 The Plaintiff, Gene L. Willison, brought this action in the
District Court for the Fourth Judicial District in Missoula County
to recover damages from the Defendant, Martin Cahoon, Sr., based on
an alleged breach of contract. The District Court concluded that
Willison's complaint was barred by the statute of limitations and
granted summary judgment to Cahoon. Willison appeals the District
Court's order granting summary judgment. We affirm the judgment of
the District Court.
¶3 The sole issue on appeal is whether the District Court erred
when it concluded that Willison's claim was barred by the statute
of limitations.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Unfortunately, the facts in this case, from Plaintiff Gene
Willison's perspective, are not clearly ascertainable. Despite
having ample opportunity, Willison opted not to present any factual
evidence at either the summary judgment hearing or by affidavit.
In addition, Willison failed to present a clear and concise
recitation of the facts in his two-page pro se brief submitted on
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appeal. In contrast, Defendant, Martin Cahoon, Sr., provided a
factual background supported by hearing testimony, by affidavit,
and by Willison's deemed admissions. Therefore, the following
factual background is based primarily on Cahoon's recitation of the
facts.
¶5 Martin Cahoon, Sr., was the owner of Rovero's, a hardware and
fuel distributor business located in Seeley Lake, Montana. In
September of 1993, Cahoon opened a charge account for Gene Willison
to enable him to purchase fuel for his excavation business. In
approximately October or November of 1994, the Plum Creek Timber
Company informed Willison that he would no longer be able to store
his excavation equipment on its property. Shortly thereafter,
Willison sought permission from Cahoon to store his fuel truck and
excavator on Cahoon's property. Cahoon agreed with the
understanding that his storage of Willison's property was in
consideration for his ability to use Willison's excavator for an
upcoming renovation project. There was no written agreement
between the parties. Cahoon's renovation project, the construction
of a convenience store/gas station, began in November of 1994.
¶6 Cahoon used Willison's excavator for four days in March of
1995 to dig holes for the installation of fuel tanks. Sometime
before April 11, 1995, the date Cahoon suffered a heart attack,
Cahoon had completed his use of Willison's excavator and Willison
had retrieved all of his equipment from Cahoon's property. All
construction work on the convenience store/gas station, including
the excavation work, was completed before the store opened on May
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10, 1995. Cahoon subsequently sold the convenience store/gas
station on July 31, 1995.
¶7 On November 21, 2000, Willison, acting pro se, filed a
complaint in the District Court for the Fourth Judicial District in
Missoula County, where he alleged that he was owed $15,000 "for the
unloading of (6) six 10,000 gallon fuel tanks, execavation [sic],
and placing of (6) six 10,000 gallon tanks, placing of bedding
material, and back filling the same, and excavation for canopy
stands." Based on Willison's brief, it appears that Willison also
claims that Cahoon owes him money for use of his excavator. The
precise nature of Willison's claim is difficult to determine.
¶8 Cahoon denied Willison's allegations and filed a counterclaim.
On May 2, 2001, following limited discovery, Cahoon filed a motion
for summary judgment, and asserted that Willison's claim for
damages was barred by the statute of limitations applicable to oral
contracts. Following a hearing, the District Court issued an order
granting Cahoon's motion for summary judgment. Cahoon voluntarily
withdrew his counterclaim, and the District Court entered final
judgment for Cahoon on October 15, 2001. On October 21, 2001,
Willison appealed the judgment of the District Court.
STANDARD OF REVIEW
¶9 This Court's standard of review in appeals from summary
judgment is de novo. Motarie v. Northern Montana Joint Refuse
Disposal Dist. (1995), 274 Mont. 239, 242,
907 P.2d 154, 156. We
apply the same Rule 56, M.R.Civ.P., criteria applied by the
district court. Bruner v. Yellowstone County (1995),
272 Mont.
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261, 264,
900 P.2d 901, 903. Rule 56(c), M.R.Civ.P., provides
that:
[t]he judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law.
¶10 The party moving for summary judgment has the initial burden
of establishing the absence of genuine issues of material fact.
Bruner, 272 Mont. at 264,
900 P.2d at 903. If that burden is met,
the burden shifts to the nonmoving party to raise a genuine issue
of material fact by more than mere denial or speculation. Bruner,
272 Mont. at 264,
900 P.2d at 903. Once a court determines that no
genuine factual issues exist, it then must determine whether the
moving party is entitled to judgment as a matter of law. Bruner,
272 Mont. at 264-65,
900 P.2d at 903. This Court reviews the legal
determinations made by a district court to determine if they are
correct. Bruner,
272 Mont. at 265,
900 P.2d at 903.
DISCUSSION
¶11 Did the District Court err when it concluded that Willison's
claim was barred by the statute of limitations?
¶12 Willison contends that Cahoon should not be entitled to "hide
behind" the statute of limitations applicable to oral contracts
because, originally, Cahoon dishonestly denied that he owed
Willison money or used his equipment. According to Willison,
Cahoon now admits through court documents that he began a
renovation project, used Willison's excavator, completed his use of
Willison's excavator before April 11, 1995, and expended labor and
materials to repair and service Willison's excavator. Because
Cahoon now admits to what he previously denied, Willison contends
that Cahoon should not be able to rely on the statute of
limitations as a defense.
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¶13 Cahoon, on the other hand, contends that his storage, use, and
maintenance of Willison's excavator occurred in the early spring of
1995, sometime prior to April 11, 1995. Because Willison failed to
file his complaint until November 21, 2000, Cahoon asserts that
Willison's claim is barred by the five-year statute of limitations
applicable to oral contracts set forth in § 27-2-202(2), MCA. With
no genuine issues of material fact, Cahoon contends that he was
entitled to summary judgment as a matter of law. The District
Court agreed.
¶14 We should begin by clarifying that there was no evidence in
the record of a written contract between Willison and Cahoon.
However, in Willison's answer to Cahoon's counterclaim, Willison
describes what can only be interpreted as an oral contract.
Therefore, we will proceed on that basis.
¶15 The time within which a claim for a breach of an oral contract
must be brought is set forth in Section 27-2-202(2), MCA, which
provides, "The period prescribed for the commencement of an action
upon a contract, account, or promise not founded on an instrument
in writing is within 5 years." We have stated in the past that a
statute of limitation is a procedural device that operates as a
defense to limit the remedy available from an existing cause of
action, motivated "by considerations of fairness to defendants,"
and is "intended to encourage prompt resolution of disputes by
providing a simple procedural mechanism to dispose of stale
claims." Joyce v. Garnaas, 1999 MT 170, ¶ 14,
295 MT 198, ¶ 14,
983 P.2d 369, ¶ 14 (quoting First United Methodist Church of
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Hyattsville v. United States Gypsum Co. (4th Cir. 1989), 882 F.2d
862, 866, cert. denied (1990),
493 U.S. 1070,
110 S.Ct. 1113,
107
L.Ed.2d 1020).
¶16 Here, Cahoon had the initial burden of showing that there was
no genuine issue of material fact. Cahoon established, through his
affidavit and through testimony at the summary judgment hearing,
that he began a renovation project on his property in November of
1994, and used Willison's excavator in March of 1995. Cahoon also
established that before April 11, 1995, he had completed his use of
Willison's excavator and Willison had already retrieved his
equipment from Cahoon's lot. Therefore, Cahoon demonstrated that
the events which formed the basis of Willison's complaint took
place more than five years before Willison filed his complaint on
November 21, 2000.
¶17 Because Cahoon met his burden, the burden then shifted to
Willison to raise a genuine issue of material fact. Willison
failed to present any evidence whatsoever that raised a genuine
issue of material fact with regard to the factual timeline of
relevant events. Willison presented no evidence at the summary
judgment hearing and presented no affidavits to dispute Cahoon's
assertions. In fact, Willison failed to respond to a request for
admission made by Cahoon which went directly to the statute of
limitations question. Cahoon's Request for Admission No. 1 stated:
In your Complaint you allege that Cahoon owes you a
debt "in the sum of $15,000.00 (Fifteen Thousand Dollars
and no cents), due and owed for the unloading of (6) six
10,000 gallon tanks, excavation, and placing (6) six
10,000 gallon tanks, placing of bedding materials, and
back filling the same, the excavation for canopy stands."
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With respect to said allegation, please admit that
the above-referenced actions allegedly taken by Cahoon
occurred before November 21, 1995.
¶18 Failure to respond or object to a request for admission within
thirty days results in an admission. Rule 36(a), M.R.Civ.P.
Admissions based on a party's failure to respond may be used as a
basis for granting summary judgment. Holmes & Turner v. Steer-In
(1986), 222 Mont. 282, 285,
721 P.2d 1276, 1278. Therefore, it is
undisputed that the events which led to the allegations in
Willison's complaint had completely transpired before November 21,
1995.
¶19 Willison's contention that the statute of limitations should
not be applied based on reasons of fairness is meritless. Willison
had firsthand knowledge of the facts and circumstances which gave
rise to his claim, yet simply failed to act on his claim.
Therefore, we conclude that because there was no genuine issue of
material fact and Willison's claim was barred by the five-year
statute of limitations for enforcing oral contracts, the District
Court did not err when it granted summary judgment to Cahoon.
¶20 Accordingly, we affirm the judgment of the District Court.
/S/ TERRY N.
TRIEWEILER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JIM RICE
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