Osterman v. Sears11/26/2003
District Court awarded Osterman attorney fees in the amount of $5,487.50.
With respect to costs, the court similarly concluded Osterman should receive only those incurred in relation to the breach of express warranty claim. The court reduced Osterman's requested amount of costs proportionately, for a total award of $790.25. Osterman appeals the District Court's summary dismissal of her claims for fraud, negligent misrepresentation, and unfair trade practices, and the court's award of partial attorney fees against K-Designers. We affirm the District Court's order granting summary judgment in favor of Sears and K-Designers. However, we conclude the District Court erred in its award of attorney fees and costs, and remand that issue to the District Court for redetermination.
DISCUSSION
Did the District Court err in granting summary judgment to Defendants on Osterman's claims for actual fraud, constructive fraud, unfair trade practices, and negligent misrepresentation?
We review a district court's summary judgment ruling de novo and employ the same method of evaluation, based upon Rule 56 M.R.Civ.P., as applied by the district court. Andrews v. Plum Creek Manufacturing, LP. , 2001 MT 94, 5, 305 Mont. 194, 5, 27 P.3d 426, 5. Pursuant to Rule 56, M.R.Civ.P., we apply the following inquiry:
The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue [of fact] does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred. Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903 (citations omitted).
In the instant case, the District Court granted summary judgment in favor of KDesigners and Sears as to Osterman's claims for actual and constructive fraud, as well as her claim for unfair trade practices, on the basis that these claims were barred by the applicable two-year statute of limitations set forth in §§ 27-2-203 and 27-2-211, MCA (1999). Osterman argues that the two-year period was tolled and that her filing was timely.
Section 27-2-203, MCA, provides that:
The period prescribed for the commencement of an action for relief on the ground of fraud or mistake is within 2 years, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.
Under Montana law, it is well settled that fraud claims are subject to a two-year statute of limitations. Fleming v. Fleming Farms, Inc . (1986), 221 Mont. 237, 243, 717 P.2d 1103, 1107. This two-year statute of limitations also applies to actions for constructive fraud. Tynes v. Bankers Life Co . (1986), 224 Mont. 350, 357, 730 P.2d 1115, 1120 (citing Purcell v. Automatic Gas Distributors, Inc. (1983), 207 Mont. 223, 232, 673 P.2d 1246, 1251 (defining "constructive fraud" as within the definition of fraud)).
In Association of Unit Owners of Deer Lodge Condominium v. Big Sky of Montana, Inc. (1990), 245 Mont. 64, 82, 798 P.2d 1018, 1029, this Court upheld, without analysis, the district court's determination that the unit owners' claim for unfair trade practices under § 30-14-133, MCA, was time barred by the statute of limitations set forth at § 27-2-211, MCA. That section provides, in relevant part:
(1) Within 2 years is the period prescribed for the
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