Strong v. Butts , 2006 MT 14N ( 2006 )

No. 05-145
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 14N_______________________________________
MOLLY STRONG, d/b/a YETI BY MOLLY, LTD.,
Plaintiff and Appellant,
v.
JOHN WILLIAM BUTTS,
Defendant and Respondent.
______________________________________
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DV-04-248(A),
The Honorable Stewart E. Stadler, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John M. Wagner, Quatman & Quatman, PC, Whitefish, Montana
For Respondent:
Bruce McEvoy, Johnson, Berg, McEvoy & Bostock, PLLP, Kalispell,
Montana
____________________________________
Submitted on Briefs: January 11, 2006
Decided: January 24, 2006
Filed:
______________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court cause number and disposition shall be included in
this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Appellant Molly Strong, d/b/a Yeti By Molly, Ltd. (Strong), appeals from a
decision of the Eleventh Judicial District Court, Flathead County, granting summary
judgment to Respondent John William Butts (Butts) on the grounds that the statute of
limitations barred her claims. We affirm.
¶3 Strong argues that Butts’s fraudulent concealment of his illegal activity prevented
her from discovering a cause of action and thereby tolled the running of the statute of
limitations. See, e.g., United Methodist Church v. D.A. Davidson, Inc. (1987), 228 Mont.
288, 294, 741 P.2d 794, 798. This fraudulent concealment allegedly prevented Strong
from obtaining Butts’s records of his private Glacier Bank and Flathead Bank of Bigfork
accounts that contained the evidence of Butts’s wrongdoing that Strong needed to file this
action. Butts finally produced these records in 2002 as part of an agreement to settle
Butts’s interest in a separate legal action involving Yeti by Molly, Ltd.
¶4 Butts counters that Strong admits to having been concerned about Butts’s alleged
misappropriation of funds as far back as 1995. Butts contends that Strong’s failure to
take any action until 2003 to obtain the financial information cannot satisfy the “ordinary
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diligence” requirement of a party asserting fraudulent concealment. Osterman v. Sears,
Roebuck & Co., 2003 MT 327, ¶ 27, 318 Mont. 342, ¶ 27, 80 P.3d 435, ¶ 27.
¶5 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of
our 1996 Internal Operation Rules, as amended in 2003, which provides for
memorandum opinions. We agree with the District Court that Strong failed to exercise
ordinary diligence upon her acknowledged discovery of potential wrongdoing by Butts in
1995. Strong alleges that Butts failed to provide the requested information as part of the
parties’ dissolution of marriage proceeding. As noted by the District Court, however,
Strong failed to file a motion to compel discovery of such information until July 2003.
The doctrine of fraudulent concealment cannot save Strong’s claim given her lack of
diligence in seeking to uncover Butts’s alleged wrongdoing.
¶6 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
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