Osterman v. Sears11/26/2003
son-to-Person Financial Center (Ariz. 1985), 706 P.2d 382, 389; Miller v. Dickenson (Tex. App. 1984), 677 S.W.2d 253, 258; Pickett v. Holland America Line-Westours, Inc. (Wash. App. 2000), 6 P.3d 63, 69; Medimatch, Inc. v. Lucent Technologies Inc. (N.D. Cal. 2000), 120 F.Supp.2d 842, 852.
For purposes of tolling the statute of limitations in an action for fraud or unfair trade practices, ordinary diligence must be exercised by the aggrieved party in the discovery of the facts constituting the fraud or deceptive practice. See Gregory v. City of Forsyth (1980), 187 Mont. 132, 137, 609 P.2d 248, 251. "When the statute of limitations issue involves the time at which the plaintiff, through the use of reasonable diligence, should have discovered the facts, ' he test is whether the plaintiff has information of circumstances sufficient to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his or her investigation.'" Johnson v. Barrett , 1999 MT 594, 11, 295 Mont. 254, 11, 983 P.2d 925, 11.
Here, the District Court found that Osterman failed to specify any representation made by either K-Designers or Sears that K-Designers was part of the Sears Company, that Sluder was a Sears' employee, or that the product sold was manufactured by Sears. Rather, Osterman simply asserted she was led to believe that was the case. This assertion, however, would have been in derogation to the information actually provided to Osterman on August 15, 1996, whereupon she received sales brochures identifying the manufacturer of the siding as a company named "Gentek," and K-Designers as "a Sears authorized Contractor." On that same date, Osterman also executed a Sales Agreement authorizing K-Designers to "furnish, deliver, and arrange for installation of all materials . . ." and agreed to participate in a product awareness program in which she would, among other things, allow K-Designers to use before and after photographs of her home, place a Sears Siding/K-Designers sign on her property during installation, and show the exterior of her property to prospective customers.
By October 7, 1996, Osterman had demonstrated her knowledge of K-Designer's relationship with Sears by tendering a check to K-Designers for approximately $11,000 and signing a Certificate of Completion acknowledging "that all goods and services sold to us by K-Designers have been furnished and performed in a workmanlike manner and in accordance with the terms of said contract." Thus, even if Osterman was not fully aware of K-Designers' relationship with Sears on August 15, 1996, this confusion was clearly resolved by October 7 of that same year when she wrote the payment check to K-Designers and signed a Certificate of completion, more than two years prior to the filing of her suit.
A "party asserting fraud is put on inquiry notice of the other party's misdeeds, and must exercise ordinary diligence to discover the facts constituting the fraud. . . . Mere ignorance of the facts will not suffice to toll the statute of limitations." Holman v. Hansen (1989), 237 Mont. 198, 202, 773 P.2d 1200, 1203 (citations omitted). Here, Osterman has not shown affirmative conduct by Sears or K-Designers calculated to obscure the existence of a cause of action. Nor is this a situation in which the facts giving rise to the alleged fraud are, by their nature, concealed. Rather, K-Designers' relationship with Sears as an "authorized contractor" is evident from a plain reading of the August 15, 1996 Sales Agreement. Although Osterman correctly points out that a person who fails to take the opportunity to examine a written form before executing it may still claim fraud to a document "where he is prev
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