*1 ELIZABETH ANNE RUCINSKY, Appellant,
Plaintiff and
RAYMOND A. HENTCHEL,
Respondent.
Defendant and
No. 94-153.
July 6,
Submitted on Briefs
1994.
September 15,
Decided
1994.
St.Rep.
For Smith, Walsh, Clarke & Vermillion; J. Robert Respondent: For Falls. Great Gregoire,
JUSTICE Opinion HARRISON delivered the of the Court. Elizabeth Ann (Rucinsky) appeals the order of the Court, County, dismissing Twelfth Judicial District Hill her invasion pursuant 27-2-204, action MCA. We affirm. § presented The sole issue whether District Court erred in (Hentchel) granting Raymond Hentchel’s motion for summary judg- ment on the applicable three-year basis statute of limitations to run in period began rather than thereby barring Rucinsky’s cause of action. 1988, Rucinsky
From 1986 to and Hentchel dating were in a relationship. January Hentchel met at the Great airport Falls to drive her home to Havre after an out-of-state business trip. Rucinsky that, home, testified on the very ride Hentchel was men, accused her of other upset, seeing and told her that he had “bugged,” planted listening bed, device in her phone and her and watching had someone her bedroom window. hear the requested tape recordings phone conversations, ofher and play her, party pursued them for however neither the issue further. testified did she not take Hentchel seri- ously Claims, at the time because all of his taken together, seemed exaggerated. ludicrous and Several later weeks Hentchel and Rucin- *3 sky ended their relationship. January February, 1992, Julie,
In or time, Hentchel’s wife at that Rucinsky called to inform her that she had discovered cassette Rucinsky’s of iii phone According conversations a locked drawer. to Julie, some were Rucinsky’s labeled with name while others name, indicating were labeled with Julie’s that Hentchel had re- Rucinsky’s corded both phone and Julie’s conversations. In his depo- sition, Hentchel during relationship admitted that their he had Rucinsky’s recorded of phone some conversations. He also confessed recording phone they to Julie’s conversations for several months after were married. 23, 1992, Rucinsky complaint
On November filed a in District claiming privacy by taping Court that Hentchel violated her The telephone granted conversations. District Court Hentchel’s mo- summary judgment Rucinsky’s by tion for action barred holding was three-year Rucinsky appeals. the statute of limitations. summary granted only
A motion for judgment properly genuine moving when there are no issues material fact and the of 56(c), judgment is entitled to a as a matter of law. Rule summary judgment The is entitled to party opposing M.R.Civ.R from the factual record resolved in her any have inferences drawn Dyke (1991), 247 Mont. 806 P.2d Boylan favor. Van 27-2-204, MCA, applicable to statute of limitations Pursuant § liability a not founded an instrument upon for an action on period MCA, years. 27-2-102(2), three Pursuant of writing is § limitation begins when the cause of action accrues. Section 27-2- 102(l)(a), MCA, states in relevant that a cause of action part accrues occurred, when all its elements exist or have to maintain an jurisdiction. and a court is authorized to complete, accept action is is defined “wrongful An invasion of cause of action as a into one’s in such a manner private outrage intrusion activities as to humiliation suffering, shame, cause mental or to a person ordinary Systems, Sistok v. Northwestern Telephone sensibilities.” Inc. 182. Hentchel contends statutory period began that in 1988 when he first informed recordings. Rucinsky of the contends that a reasonable person seriously and, would not have taken Hentchel at that time therefore, statutory period begin did not until 1992 when the time, Until recordings Rucinsky argues, were discovered. there insufficient support “right action,” evidence to maintain an pursuant MCA. § tapping confessed to that he was confession, Rucinsky In addition to the
phone.
testified that
there
mysteriously “appeared”
were times when Hentchel
on the scene even
though
previously
had not
informed him of her intended
plans. Rucinsky
suspicions
testified that her
were further intensified
private
verbatim,
when Hentchel recited one ofher
conversations
but
perhaps
merely listening
she concluded that
he was
at the door.
tapping
private,
Phone
confidential conversations consti
wrongful
private
tutes a
intrusion into one’s
activities in a manner
shame,
mental
likely
outrage,
suffering,
to cause
or humiliation to an
182;
ordinary
Sistok,
See
615 P.2d at
LaCrone v. Ohio Bell
person.
(Ohio
1961),
Ct.
182 N.E.2d
Housh v. Peth
Telephone
App.
Co.
(Ohio 1956),
to maintain her action” 1988 when she was on put notice that taped Hentchel conversations. The to the cause of action began regardless of whether she was convinced of the success of such an action.
Alternatively, Rucinsky that contends Hentchel’s fraudulent statutory period tolled the until 1992 the tapes concealment when actually concealment, were discovered. The doctrine of fraudulent as Montana, recognized in tolls statute of limitations until the cause of action is discovered or could have been discovered due diligence. Knight City Missoula citing Hospital (1966), P.2d Johnson v. St. Patrick’s 27-2-102(3), MCA, Mont. 471. Section essentially a codification of the common law doctrine of fraudulent applies tolling statutory period: concealment as it to the of the claim any does not on begin The of limitation or cause of until the injury person property action for an facts constitut- or, in the ing the claim have been discovered exercise of due by injured party should have been discovered if: diligence, (b)... prevents injured has taken action which the defendant discovering from or its cause. 27-2-102(3), Section MCA. only were the recordings contends that reliable claim, they fraudulently her invasion of were privacy
evidence for by in locked until discovered Julie by concealed Hentchel his drawer therefore, 1992, and, statutory period was tolled until discovery. disagree. We to the Rucin phone tapping, when Hentchel confessed tapes that she would like to hear the “sometime.”
sky declared for her. Based on these responded play that he would them facts, Rucinsky’s argument that Hentchel concealed the fails request to hear he told her he had them and because weeks, Hentchel and ended their them. several Within eventually Julie, and, home, in their relationship. Hentchel married in his locked drawer. Hentchel did not private, he stored the do he maintained their control. His actions not tapes; conceal the Rucinsky argues. concealment as support granting the District Court was correct in Hentchel’s Accordingly, thereby dismissing Rucinsky’s inva- summary judgment, for motion cause of action. sion Court.
We affirm District *5 TURNAGE, GRAY, JUSTICE JUSTICES and CHIEF WEBER concur. NELSON HUNT, dissenting.
JUSTICE majority opinion. Rucinsky from the of I dissent first learned the 1988, in tapping during from Hentchel a heated discussion telephone infidelity. discussion, alleged During her this Hentchel also about claimed Rucinsky that he had watching through someone her bed- he window, planted listening and that had a in her room device Rucinsky to hear the telephone tap tapes. Although mattress. asked the produce tapes, Likewise, Hentchel to he never did. no one Rucinsky watching throughher window, was discovered bedroom and listening result, no device was discovered in her mattress. As a seriously. However, did not take Hentchel’s claims four later, 8, years February 1992, wife, Julie, on Hentchel’s discovered key the hidden under lock and in a dresser tapes drawer. Julie discovery then Rucinsky. years Hentchel shared her with Four after claims, Rucinsky Hentchel made his had that the proof tapes existed privacy and that her had been invaded. 1992, 23, November within
On nine months of hearing tapes the time, Rucinsky for the first filed complaint claiming her privacy by recording violated her phone conversations. 11, to M.R.Civ.P., complaint Pursuant Rule a must be “well Rucinsky’s in grounded complaint fact.” not possibly could have been in fact she grounded year well had filed within the three from calls, the time Hentchel he had telephone spied claimed recorded her bedroom, bugged However, on her and the complaint mattress. 23, 1992, filed clearly on November well in grounded Julie fact, given discovery. Hentchel’s purpose limitation, For of statutes of cause of action accrues when all elements of cause exist and the an maintain complete. action on the cause is Section MCA. Inva- a wrongful private sion of constitutes intrusion into activities outrages ordinary a person sensibilities and mental causes shame, suffering, Telephone or humiliation. Sistok v. Northwestern (1980), 82, 92, 176, Inc. Systems, 189 Mont. P.2d 182. The elements of this cause of action came into existence when February 8, time heard for the first on 1992. Prior this Rucinsky understandably phone time dismissed Hentchel’s claim of claims. as she did his other false tapping, A statute of limitations is tolled when a defendant fraudulently constituting conceals the facts the claim or prevents injured from or its discovering cause. The statute remains tolled until the cause of action is discovered or could have been discovered 27-2-102(3)(a) diligence. (b), MCA; due Section and see also Knight City (1992), v. Missoula 827 P.2d Johnson St. Hospital Patrick’s Mont. Although Hentchel promised to deliver the tapes Instead, he failed to deliver. kept he the tapes away only Rucinsky, locked and concealed from not but also from his wife, phone conversations he By whose had also recorded. failing to promised, by concealing deliver the as and the tapes under lock key thereafter, and Hentchel prevented Rucinsky from discovering *6 cause. its This constitutes fraudulent concealment sufficient to toll the statute of February 8, limitations until
I would reverse the District granting of Hentchel’s motion Court’s summary judgement. for joins
JUSTICE TRIEWEILER in the foregoing dissent.