                             No.        92-164

          IN THE SUPREME COURT OF THE STATE OF MONTANA




FRED G. CARL and JOAN A. CARL,
          Plaintiffs and Appellants,


WILLIAM CHILCOTE and
CITY OF MISSOULA, MONTANA,
          Defendants and Respondents.



APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:
          For Appellants
                       .
               Charles F Moses, Moses Law Firm,
               Billings, Montana
          For Respondents:
               William P. Driscoll, Gough, Shanahan, Johnson           &
               Waterman, Helena, Montana (City of Missoula);
               William L. Crowley, Boone, Karlberg & Haddon,
               Missoula, Montana (Chilcote)



                              Submitted on Briefs:          August 13, 1992
                                                 Decided:   December 17, 1992
Filed:


                                    I
                                   Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Plaintiffs and appellants, Fred G Carl and Joan A.
                                      .                      Carl,
husband and wife, appeal from the adverse decisions of the District
Court of the Fourth Judicial District, Missoula County.        The
District Court granted summary judgment to both defendants and
respondents, William Chilcote and the City of Missoula (City). We
affirm.
     There are two issues before the Court:
     1.   Did the District Court err in granting summary judgment
in favor of Chilcote?
     2.   Did the District Court err in granting summary judgment
in favor of the City of Missoula?
     This appeal is the latest in a long-running dispute which
began more than a decade ago.   In the late 197OVs,Carls entered
into a contract for the construction of four duplexes in Missoula.
The contractor was Paul Campeau. During construction, a mechanic's
lien was filed by M. E. Walters. Walters obtained summary judgment
against Campeau and is no longer a party to the controversy. Carls
also asserted cross-claims for relief against Campeau in this same
proceeding in that there were several substantial and material
defects in the duplexes which were left uncorrected by Campeau. On
April 27, 1981, Carls obtained judgment against Campeau for breach
of contract. The District Court ordered that Campeau pay Carls the
cost of correcting the defects in the four duplexes, up to the
amount of $120,000.      Campeau failed to pay for the necessary
repairs.
     Carls recorded their $120,000 judgment against Campeau in
Richland County.     Campeau was involved in a joint venture in
Richland   County with   Chilcote.    Campeau and     Chilcote were
constructing and selling residences.        ~hilcote was in no way
involved with the duplexes constructed in Missoula and was not a
party to the litigation which resulted in the District Court order
of April 27, 1981, requiring Campeau to pay for the repairs to the
Missoula duplexes.
     Carls then moved the District Court for an order to compel
Campeaufs compliance with     the April     27,   1982,   order.    on
November 4, 1981, the District court entered a supplemental order
directing Campeau to make the necessary repairs, subject to
supervision by     designated architects.     In order     to   insure
completion of the repairs, the District Court ordered Campeau to
place $60,000 into a trust account.   Campeauls attorney, William
~aldassin,was ordered to act as trustee of the trust account. The

~istrictCourt also required Carls to release the Richland County
property from the lien so that Campeau could sell his interest in
the property and deposit the $6O,OOO in the trust account.         The
District Court's order of November 4, 1981, did not name Chilcote,
nor did the order require or prohibit any conduct on his part.
    The Richland County property was sold. Chilcote paid $60,000
to Campeau out of the profits of the joint venture.          Chilcote
                                 3
advised Campeau at this time that he had better get the money to
Baldassin to deposit into the trust account as the District Court
had ordered.   Campeau told Chilcote not to worry because he would
not do anything to get Chilcote into trouble. Campeau paid $2,650
to Carls, $17,000 to Baldassin, which was deposited into the trust
account, and then proceeded directly to Australia.
     Upon motion of Carls, the District Court, on August 2, 1982,
found Chilcote in contempt of court. The District Court concluded
that Chilcote had Itfrustratedthe order of this Court and prevented
its execution and should be held in contempt of this Court and
required to comply with the order    . . . dated November 4, 1981."
On August 10, 1982, the District Court entered judgment against
Chilcote in the amount of $40,350, together with costs of suit.
     Chilcote appealed and sought a Writ of Review from this Court,
consolidating his challenges to the contempt order and the money
judgment.   In Walters v. Campeau (1983), 205 Mont. 448, 668 P.2d
1054, this Court reversed both the contempt order and the money
judgment entered against Chilcote.       In Walters, we held that
Chilcote was under no obligation to insure that the $60,000 was
placed into the trust account.     Chilcote had not been a party to
any of the prior proceedings.    Neither the District Court's order
of April 27, 1981, nor the supplemental order of November 4, 1981,
named Chilcote.   The orders neither required nor prohibited any
conduct on the part of Chilcote.     Chilcote was aware that Campeau
had been ordered to pay $60,000 into the trust account and Chilcote
                                 4
even encouraged him t o do so.   However, Chilcote d i d not have any
affirmative duty to insure the money was deposited.      Under these
circumstances, we concluded that Chilcote had not interfered with
the process or proceedings of the District Court. The finding that
Chilcote was in contempt of court and the money judgment entered
against him were reversed.
     On May 20, 1983, Carls filed suit against William Chilcote,
Security Abstract Company, Richland National Bank, and the City of
Missoula.   Richland National Bank was granted summary judgment in
1984 and the District Court granted Security Abstract Company's
motion for summary judgment in 1986. Carls filed an interlocutory
appeal of the summary judgment granted to Security Abstract
Company, and in Carl v. Chilcote (1987), 226 Mont. 260, 735 P.2d
266, this Court affirmed the District Court's decision.
     The case continued against Chilcote and the City.      Chilcote
and the City had previously made motions for summary judgment which
were denied.   However, the District Court, in separate orders in
January 1992, granted both Chilcoteis and the City's motions for
summary judgment. Carls appeal from the February 6, 1992, entry of
final judgment.
                                 I

     Did the District Court err in granting summary judgment in
favor of Chilcote?
    A district court judge may grant summary judgment when:
     [Tlhepleadings,depositions, answers tointerrogatories,
     and admissions on file, together with the affidavits, if
     any, show that there are no genuine issues of material
     fact and that the moving party is entitled to judgment as
     a matter of law.
Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284,
815 P.2d 1135, 1136: Rule 56(c), M.R.Civ.P.   The party moving for
summary judgment has the initial burden of showing that there is a
complete absence of any genuine issue of material fact. To satisfy
this burden, the movant must make a clear showing as to what the
truth is so as to exclude any real doubt as to the existence of any
genuine issue of material fact. Kober v. Stewart (1966), 148 Mont   .
117, 417 P.2d 476.     Summary judgment is never an appropriate
substitute for a trial if a factual controversy exists. Reaves v.
Reinbold (1980), 189 Mont. 284, 615 P.2d 896.      Upon reviewing a
grant or denial of a motion for summary judgment, this Court
applies the same standard as the district court.
     Carls allege that genuine issues of material fact remain and
that the District Court erred in granting summary judgment to
Chilcote.   Carls' cause of action against Chilcote sought damages
for interference with a contract. On appeal, Carls argue that the
District Court granted summary judgment in favor of Chilcote on the
basis of res judicata. Carls contend that the previous decision of
this Court in Walters does not bar the present action.
     However, a careful reading of the District Court's opinion and
order granting summary judgment to Chilcote reveals that the
District Court did not rely upon the doctrine of res judicata. The
                                6
District Court did refer to the facts as set out in Walters, but
did not conclude that the Walters decision barred the present
action. To the contrary, prior to ruling on Chilcote's motion for
summary judgment the District Court allowed Carls the opportunity
to present any additional evidence they might have which would
preclude summary judgment in favor of Chilcote.      The District
Court, after reviewing all the uncontested facts, found no genuine
issues of material fact remaining and granted summary judgment to
Chilcote. The District Court did not grant summary judgment based
on the doctrine of res judicata. In granting summary judgment, the
District Court stated that:
    To date, this Court has not been presented with evidence
    which refutes the facts as stated in Walters. At the
    January 15, 1992 hearing counsel for [Carls] stipulated
    that he had no additional evidence to present to a jury
    than is already in the Court file. Under the stipulated
    set of facts, and in light of the Supreme Court's rulings
    in Walters and Carl and Carl's admissions (attached to
    this Opinion and Order), there are no material issues of
    fact still to be determined by a jury and summary
    judgment is proper under Rule 56, M.R.Civ.P.       Absent
    evidence that Chilcote had an affirmative duty to pay the
    $60,000 to the Baldassin trust account or that Chilcote
    intentionally prevented the funds from going into the
    trust account, Carls have not proven that Chilcote should
    be held liable for the actions of Campeau.
     The uncontroverted evidence in this case, especially Carls'
answers to Chilcotefs request for admissions, clearly shows that
Chilcote was entitled to summary judgment as a matter of law.
Chilcote was not named in either of the District Court's orders.
The orders did not require or prohibit any conduct by Chilcote.
Specifically, Chilcote was not prohibited in any way from paying
over Campeau's share of the profits of the joint venture directly
to Campeau. There are no facts indicating that Chilcote in any way
prevented or frustrated Campeau from depositing the money in the
trust account.    The uncontroverted evidence was that Chilcote
encouraged Campeau to deposit the money.     The District Court's
grant of summary judgment in favor of Chilcote is affirmed.
                                 II
     Did the District Court err in granting summary judgment in
favor of the City of Missoula?
     Prior to beginning construction, Carls applied for and
obtained building permits from the City.       Carls brought suit
against the City contending that the City, through its building
department employees, failed to use due care in supervising and
inspecting the construction and in insuring that the construction
was completed according to the City's building codes. The District
Court granted summary judgment in favor of the City on the grounds
that the applicable statute of limitations had run.
     The construction at issue in this case was performed in 1977
and 1978.   As previously mentioned, Carls cross-claimed against
Campeau in April 1980.   The basis of this cross-claim was that
Carls alleged they were entitled to damages for defects in the
construction of the duplexes. On June 11, 1980, Carls acknowledged
in answers to interrogatories and requests for admissions that they
were aware of various defects in the construction. At the January
1981 trial, Carls presentedtestimony from a structural engineer as

                                 8
to the defects.   The District Court in this case determined that
Carls became aware of the defects in April 1980 and certainly were
aware of the facts constituting their claim by the time of trial in
January 1981.   We agree.
     In resistance to the City's motion for summary judgment, Carls
presented several affidavits in support of their contention that
they did not become aware of their claim until the fall of 1981.
The fact that these particular affiants did not realize that Carls
had a possible claim against the City is irrelevant.       Section
27-2-102, MCA, provides in part that:
          (2) Unless otherwise provided by statute, the period
     of limitation begins when the claim or cause of action
     accrues. Lack of knowledge of the claim or cause of
     action, or of its accrual, by the party to whom it has
     accrued does not postpone the beginning of the period of
     limitation.
          (3) The period of limitation does not begin on any
     claim or cause of action for an injury to person or
     property until the facts constituting the claim have been
     discovered   ....
In this case, the facts constituting the claim had clearly been
discovered by Carls.   The statute of limitations began to run at
that time, notwithstanding the fact that Carls may not have
realized they had a possible claim against the City.    Bennett v.
Dow Chemical Co. (1986), 220 Mont. 117, 713 P.2d 992.
     The statute of limitations began to run, at the very latest,
as of the date of trial in January 1981. Carls filed suit against
the City on May 20, 1983, more than two years following the trial.
The District Court concluded that the appropriate statute of
limitations in this case was two years pursuant to 5 27-2-207, MCA,
and therefore, Carls' action was barred.    Section 27-2-207, MCA,
provides that:
          Within 2 years is the period prescribed for the
     commencement of an action for:
         (1) injury to or waste or trespass on real or
    personal property  ....
     Carls contend, relying upon 5 27-2-208, MCA, that the statute
of limitations for commencing the action was ten years.     Section
27-2-208, MCA, relates to actions for damages arising out of work
on improvements to real property and states in part that:
         (1) Except as provided in subsections (2) and ( 3 ) ,
    no action to recover damages (other than an action upon
    any contract, obligation, or liability founded upon an
    instrument in writing) resulting from or arising out of
    the   design,    planning,    supervision,   inspection,
    construction, or observation of construction of or land
    surveying done in connection with any improvement to real
    property shall be commenced more than 10 years after
    completion of such improvement.


          (5) Nothing in this section shall be construed as
     extending the period prescribed by the laws of this state
     for the bringing of any action.
    In discussing this statute, this Court recently stated that:
         Taken by its four corners, 5 27-2-208, MCA, is not
    in itself a statute of limitation. Under subsection (5)
    of the statute, the ten-year period does not extend any
    other period prescribed by the laws of this state for
    bringing any action. What 5 27-2-208, MCA, provides is
    that any other applicable statutes of limitation still
    remains applicable but in no event shall any cause be
    commenced more than ten years after the completion of the
    improvement. Section 27-2-208, MCA, is not in essence a
    statute of limitations, but rather a statute of repose
    which prevents any cause of action relating to an
     improvement to real property from arising after a ten
     year period. Thus, if late discovery of the facts were
     applicable in this case to extend the time for
     commencement of the action, or, if the circumstances
     which extend the periods of limitations set out in
     § § 27-2-401, and -409, MCA, were involved, the specific
     applicable limitations periods would be extended, but in
     no event longer than ten years after completion of the
     improvement.
Ass'n of Unit Owners v. Big Sky of Montana (1990), 245 Mont. 64,


     Carls argue that in Reeves v. Ille Electric Co. (1976), 170
Mont. 104, 551 P.2d 647, this Court interpreted 5 27-2-208, MCA, as
providing for a ten-year statute of limitations, contrary to the
holding of Biq Sky.       The issues in Reeves involved several
constitutional challenges to the statute. The Court in Reeves did
not hold that the statute provided for a ten-year statute of
limitations. The District Court correctly applied 5 27-2-207, MCA,
in this instance in determining that Carls' action was barred.
     Finally, Carls argue that based upon the issuance of building
permits, their claims against the City are also contractual in
nature and that the statute of limitations for contracts found at
5 27-2-202, MCA, should apply. The City contends that the question
of a contractual relationship is not properly before this Court.
In 1990, the City was granted summary judgment in this case.     The
District Court based this grant of summary judgment on several
grounds,   including    the   determination   that   no   contractual
relationship existed. Carls appealed the District Court's grant of
summary judgment.      Upon motion of Carls, the matter was not
considered on appeal, but was remanded to the District Court for
reasons unrelated to the issues now on appeal.      The City argues
that Rule 4(c), M.R.App.P.,    requires the notice of appeal to
"designate the judgment, order or part thereof appealed from" and
that Carls did not appeal from the summary judgment entered in
1990. Carls' notice of appeal only designates the summary judgment
entered in January 1992 as the subject matter of their appeal. The
issue of a contractual relationship was not raised in connection
with the January 1992 summary judgment.     Additionally, Rule 2(a),
M.R.App.P., provides that:
          Upon appeal from a judgment in a civil case, the
     court may review the verdict or decision, and any
     intermediate order or decision excepted or objected to
     within the meaning of Rule 46 of the Montana Rules of
     Civil Procedure, which involves the merits, or
     necessarily affects the judgment, except a decision or
     order from which an appeal miqht have been taken.
     [Emphasis added.]
     Carls not only failed to designate the 1990 summary judgment
order in their notice of appeal, butthe 1990 summary judgment was
an order from which an appeal was available. This Court cannot, on
appeal from the judgment, review an order from which an appeal
could have been taken.   Great Falls Meat Co. v. Jenkins (1906), 33
Mont. 417, 84 P. 74. The question of a contractual relationship is
not properly before the Court.     The District Court's grant of
summary judgment to the City is affirmed.
     The City also cross-appeals from a 1985 order of the District
Court denying the City's motion for summary judgment based on the
public duty doctrine.   Because we are affirming summary judgment in
favor of the City on statute of limitations grounds, it is not
necessary to address this issue raised by the City as a bar to
Carls' action.




We concur:
                 .I,
                                  December 17, 1992

                            CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Charles F. Moses
Moses Law Firm
P.O. Box 2533
Billings, M T 59103-2533

William P. Driscoll
Gough, Shanahan, Johnson & Waterman
P.O. Box 1715
Helena, MT 59624

William L. Crowley
Boone, Karlberg & Haddon
P.O. Box 9199
Missoula, MT 59807-9199


                                                ED SMITH
                                                CLERK O F T H E SUPREME COURT
                                                STATE O F MONTANA-
