                                                                                    February 5 2013


                                     DA 12-0010

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2013 MT 24


THE NORTHERN CHEYENNE TRIBE, a
Sovereign Indian Tribe of the United
States and as a Nation of People, both
Individually and Collectively,

          Plaintiff and Appellant,

    v.

THE ROMAN CATHOLIC CHURCH; by
and through its Corporate and other
Business Entities, to include, but not
limited to, THE DIOCESES OF GREAT
FALLS/BILLINGS; ST. LABRE INDIAN
SCHOOL EDUCATIONAL ASSOCIATION,
INC., ST. LABRE HOME FOR INDIAN
CHILDREN AND YOUTH, INC., and
JOHN DOES I-X,

          Defendants and Appellees.



APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and For the County of Yellowstone, Cause No. DV 05-0286
                  Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                  Jackie S. Shields; A. Clifford Edwards; Triel D. Culver; A. Christopher
                  Edwards; Edwards, Frickle & Culver, Billings, Montana

            For Appellees:

                  Maxon R. Davis; Jeffry M. Foster; Davis, Hatley, Haffeman & Tighe,
                  P.C., Great Falls, Montana (Diocese)
                  Herbert I. Pierce, III, Jeffery J. Oven, Crowley Fleck PLLP, Billings,
                  Montana
                               Submitted on Briefs: August 29, 2012
                                         Decided: February 5, 2013




Filed:
         __________________________________________
                          Clerk




                           2
Justice Brian Morris delivered the Opinion of the Court.

¶1    The Northern Cheyenne Tribe (NCT) appeals from an order of the Thirteenth Judicial

District Court, Yellowstone County that granted summary judgment on all of NCT’s claims.

We affirm in part, reverse in part, and remand.

¶2    Our resolution of NCT’s appeal requires us to address the following issues:

¶3    Whether the District Court properly granted summary judgment to St. Labre on

NCT’s claims of unjust enrichment, constructive trust, and forensic accounting?

¶4    Whether the District Court properly granted summary judgment to St. Labre on

NCT’s claims of breach of contract, negligent misrepresentation, fraud, and wrongful

conversion?

¶5    Whether the District Court properly granted judgment on the pleadings to St. Labre

on NCT’s cultural genocide and constitutional claims?

                              FACTS AND PROCEDURE

¶6    NCT brings its claims both individually, as a tribal entity, and collectively, on behalf

of the Northern Cheyenne Tribal Members. NCT names “The Roman Catholic Church” as

the lead defendant in the suit. NCT also names in the suit “The Roman Catholic Church by

and through its Corporate and other Business Entities, to include, but not limited to, The

Dioceses of Great Falls/Billings.” We refer to these defendants collectively as “the

Diocese.”

¶7    NCT also names the St. Labre Indian School Education Association, Inc. and the St.

Labre Home for Indian Children and Youth.           St. Labre Indian School Educational

Association, Inc. is a Catholic school that offers preschool through high school education.



                                             3
St. Labre Home for Indian Children and Youth provides community support that includes

housing to at-risk children who attend the St. Labre Indian School. Both entities appear to

have the same interests in this suit and have been represented by the same counsel. We refer

to the two entities collectively as “St. Labre.”

¶8     A Catholic nun first claimed the majority of the land upon which St. Labre sits in

April 1884, as grounds for the St. Labre Mission School. President Chester Alan Arthur

issued an executive order to create a reservation for the “use and occupation of the Northern

Cheyenne Indians in November 1884.” President Arthur exempted from transfer to the

Northern Cheyenne those lands “which have been located, resided upon, and improved by

bona fide settlers, prior to the 1st day of October, 1884.”          St. Labre was settled

approximately six months before the October 1, 1884 deadline.

¶9     President William McKinley issued an executive order to expand the size of the

Northern Cheyenne Reservation in 1900. The order explicitly exempted from transfer tracts

of land “belonging to the [St. Labre’s] Mission.” The United States Government later

enacted the Northern Cheyenne Allotment Act (Act) in 1926. The Act reaffirmed the lands

originally set out by President McKinley in 1900 to be the property of the Northern

Cheyenne Indians and to be “for the permanent use and occupation of the Northern

Cheyenne Indians.”

¶10    Section 4 of the Act detailed exempted lands. These exempted lands included those

used by St. Labre “so long as they continue to be used solely in the advancement of religious

and welfare work for the benefit of the Northern Cheyenne Indians.” The Secretary of the




                                              4
Interior granted St. Labre’s request in 1929 for “temporary use and occupancy” of 2.5

additional acres of land. St. Labre retains use of these lands.

¶11    The United States Government originally funded St. Labre based on the number of

attending students. St. Labre closed its high school through the late 1930’s and 1940’s due

to financial problems. Enrollment decreased to 41 students and St. Labre suffered a

corresponding loss in aid.

¶12    St. Labre began a direct mail fundraising campaign in 1952 that aimed to offset its

decrease in government funding. St. Labre has relied on this private fundraising almost

exclusively since 1952. St. Labre raises millions of dollars annually. Its current endowment

reaches approximately $90 million dollars. NCT alleges that St. Labre raised between $27

and $30 million for two of the four years before the filing of its complaint.

¶13    St. Labre runs its fundraising efforts through a direct mail campaign. St. Labre titled

its fundraising letter associated with the direct mail campaign “The Race of Sorrows.” An

Army officer in the 1880’s coined the phrase to characterize the Northern Cheyenne Tribe.

¶14    NCT asserts that St. Labre has raised millions of dollars through its fundraising efforts

that market the plight and need of NCT. NCT submitted as exhibits a number of The Race of

Sorrows letters. A fundraising letter from 1970 describes the purpose of St. Labre:

       Education of the young; opportunity of self-support for the adults,
       improvement of the economic and social status of the Northern Cheyenne,
       once called the Race of Sorrows because of their sorry plight, have been the
       goals of St. Labre, the only reasons for its existence.




                                               5
Sample letters detail stories in which Northern Cheyenne parents seek aid with house

payments and heating bills, children in need of shoes, and other similar depictions of

impoverishment.

¶15    NCT and St. Labre have enjoyed a mixed relationship over the years. A commentator

characterized the perception of NCT at the time of the development of St. Labre: “Cheyenne

people viewed the priest as a means to improve their material condition on the reservation

and as an intermediary who might speak for the Cheyenne people to federal officials.”

Suzanne H. Schrems, The Northern Cheyennes and the Fight for Cultural Sovereignty,

Montana: The Magazine of Western History 18, 22 (Spring 1995). St. Labre has provided

financial support to individual Tribal Members. NCT argues, however, that St. Labre’s

financial contributions have been irregular and insufficient relative to the fundraising totals

that St. Labre has achieved.

¶16    St. Labre’s disbursement of funds raised through its direct mail campaign appears to

have served as a long-standing dispute between St. Labre and NCT. The District Court

traced this dispute back to at least 1984 when NCT set up a task force to address the

disbursement issue. The Tribal President sought an accounting from St. Labre in 1997.

NCT alleged that St. Labre had been soliciting money “for and on behalf of the Northern

Cheyenne people,” but that the funds were not going regularly to NCT.

¶17    NCT asserts that St. Labre “consistently” made disbursements or donations to NCT

whenever NCT demanded a right to a share of the funds. NCT claims that it always took

issue with the timing and the amount of the disbursements from St. Labre. NCT alleges that

St. Labre never actually refused to provide NCT with at least some access to these funds


                                              6
until January 28, 2005. NCT argues that St. Labre’s outright denial of access to these funds

finally prompted NCT to file the current lawsuit. NCT filed this action on March 11, 2005.

¶18    NCT alleges nine separate causes of action in its amended complaint. We categorize

these claims into three general groups. The first group involves allegations that St. Labre’s

fundraising system created a constructive trust on behalf of NCT. NCT alleges that St. Labre

wrongfully has converted these funds to its own use, and, as a result, unjustly has enriched

itself. NCT’s second group of claims alleges contract and fraud type issues. The third group

of claims alleges a constitutional tort in which St. Labre has committed cultural genocide

against NCT in violation of Article II, Sections 3, 4, and 10 of the Montana Constitution.

¶19    The District Court granted St. Labre’s motion for judgment on the pleadings on

NCT’s cultural genocide claim and its constitutional claims upon which NCT had predicated

its cultural genocide claim. The District Court granted summary judgment on NCT’s

contract related claims due to NCT’s failure to produce any evidence that an express or

implied contract existed between NCT and St. Labre. The District Court also granted

summary judgment on NCT’s constructive trust claim and determined that the statute of

limitations barred NCT’s unjust enrichment claims that arose from St. Labre’s fundraising

that had taken place before March 2002. The District Court finally determined that NCT’s

failure to prove that NCT had suffered any loss barred its unjust enrichment claims that arose

from St. Labre’s fundraising after March 2002.

¶20    The District Court granted the Diocese’s motion for summary judgment on all of

NCT’s claims based on “the same rational” that it had granted St. Labre’s motions. NCT

appeals.


                                              7
                               STANDARD OF REVIEW

¶21    We review for correctness a district court’s grant for judgment on the pleadings.

Ritter v. Bill Barrett Corp., 2009 MT 210, ¶ 10, 351 Mont. 278, 210 P.3d 688. We review de

novo a district court’s grant of summary judgment. Dubiel v. Mont. Dept. of Transp., 2012

MT 35, ¶ 10, 364 Mont. 175, 272 P.3d 66.          Summary judgment represents an extreme

remedy that should be granted only when no material factual controversy exists. Mont.

Metal Bldgs., Inc. v. Shapiro, 283 Mont. 471, 474, 942 P.2d 694, 696 (1997). District courts

need consider only admissible evidence when determining whether to grant a motion for

summary judgment. Hiebert v. Cascade County, 2002 MT 233, ¶ 30-31, 311 Mont. 471, 56

P.3d 848. We review for correctness a district court’s legal determinations. Conner v. City

of Dillon, 2012 MT 21, ¶ 6, 364 Mont. 8, 270 P.3d 75.

                                      DISCUSSION

¶22    Whether the District Court properly granted summary judgment to St. Labre on

NCT’s claims of unjust enrichment, constructive trust, and forensic accounting?

¶23    NCT asked the District Court to place the funds raised by St. Labre over the past half-

century in an “Equitable Trust,” to allow a “proper redistribution in Equity.” NCT further

alleged that St. Labre’s retention of millions of dollars without paying an equitable share to

NCT “constitutes an unjust enrichment.” In denying NCT’s claim, the District Court

focused on NCT’s failure to establish that St. Labre had “done something wrong or taken

advantage of the Tribe in some way”or that St. Labre had “retained a benefit to the loss of

the Tribe.”




                                              8
¶24    The court specifically noted that “[NCT] has not presented any evidence of how it

was damaged or sustained any loss because of St. Labre’s references to the Northern

Cheyenne [r]eservation or its condition in St. Labre’s fundraising materials.” The Court also

stated that NCT “must show some element of misconduct or fault on the part of the

defendant or that the defendant somehow took advantage of the [NCT].” St. Labre similarly

argues on appeal that NCT failed to present any evidence that points to “any wrongdoing” by

St. Labre.

Unjust Enrichment Post-2002

¶25    The District Court relied upon Ragland v. Sheehan, 256 Mont. 322, 327, 846 P.2d

1000, 1004 (1993), for the proposition that NCT needed to “show some element of

misconduct or fault” on the part of St. Labre in order to establish a claim for unjust

enrichment. This Court consistently has required some bad act or misconduct on the part of

the defendant to support a claim for unjust enrichment that arose from an alleged implied

contract. Ragland, 256 Mont. at 327, 846 P.2d at 1004; Randolph V. Peterson, Inc. v. J.R.

Simplot Co., 239 Mont. 1, 8, 778 P.2d 879, 883-884 (1989); Brown v. Thorton, 150 Mont.

150, 156, 432 P.2d 386, 391 (1967); see also Est. of Pruyn v. Axmen Propane, Inc., 2009 MT

448, ¶ 64, 354 Mont. 208, 223 P.3d 845; Hinebauch v. McRae, 2011 MT 270, ¶ 29, 362

Mont. 358, 264 P.3d 1098. Ragland discussed unjust enrichment in the context of an alleged

implied contract that sprang from the plaintiff’s decision to change his legal position in

reliance on an oral assurance from the defendant that the defendant intended to proceed with

the purchase of an interest in a hydroelectric project. Ragland, 256 Mont. at 326-327, 846

P.2d at 1003-1004. Ragland cited Peterson to the same effect.


                                             9
¶26    Peterson never actually analyzed, however, whether the defendant had engaged in

misconduct or had taken advantage of the plaintiff due to Randolph V. Peterson, Inc.’s

(RVP) (failure to establish that it deserved any commission from the sale of a mining shovel.

The Court instead rejected contract and unjust enrichment claims based on the fact that the

buyer had contacted the seller “fully three months before” the buyer was contacted by RVP.

Peterson, 239 Mont. at 8, 778 P.2d at 884. RVP further conceded that the seller “probably

would have been better off financially to have sold the shovel through RVP.” Peterson, 239

Mont. at 9, 778 P.2d at 884.

¶27    Brown, in turn, involved a lapsed construction lien on property that resulted in the

mortgagee obtaining clear title. Brown, 150 Mont. at 156-157, 432 P.2d at 390. The Court

determined that the lienholder had to show “some element of misconduct or fault” by the

mortgagee, or that the lienholder “was in some way taken advantage of.” Brown, 150 Mont.

at 156, 432 P.2d at 390 (citing Butler v. Peters, 62 Mont. 381, 205 P. 247 (1922)). The

Court declined to blame the mortgagee for the fact that Brown had allowed his construction

lien to lapse. Brown, 150 Mont. at 156, 432 P.2d at 390.

¶28    A party in Butler sought to attach the property of a corporate director based upon the

corporation’s failure to file its annual report. The Court refused to allow the attachment in

light of the fact that “the complaint herein does not state a cause of action upon a contract,

express or implied, for the direct payment of money” and thus the attachment statutes did not

apply. Butler, 62 Mont. at 387, 205 P. at 249. Butler makes no mention of any requirement

of misconduct or fault. In fact, Butler never directly applies the concept of unjust

enrichment.


                                             10
¶29    Like all of these other cases, Butler involves an alleged implied contract. Here NCT’s

claim for unjust enrichment arises from the alleged imposition of a constructive trust as

opposed to an alleged implied contract. This Court has dispensed with the requirement that

the plaintiff must establish that the defendant has engaged in some bad act or misconduct in

order to prove a claim of unjust enrichment in the context of an alleged constructive trust. In

re Est. of McDermott, 2002 MT 164, ¶¶ 25-26, 310 Mont. 435, 51 P.3d 486, clarified that

Montana law no longer requires some wrongful act on the part of the defendant in order to

establish a constructive trust.

¶30    A constructive trust instead arises when a person holding title to property “is subject

to an equitable duty to convey it to another on the ground that the person holding title would

be unjustly enriched if he were permitted to retain it.” McDermott, ¶ 25 (quoting Section 72-

33-219, MCA). Title 72, Chapter 33 broadly defines property to include “anything that may

be the subject of ownership.” Section 72-33-108(3), MCA. Section 72-33-219, MCA,

makes no mention of a requirement of wrongdoing by the defendant in order to impose a

constructive trust. The legislature’s enactment of the Trust Code in 1989 eliminated the

requirement that a showing of fraud or other wrongful acts constitutes a “prerequisite to

imposing a constructive trust.” McDermott, ¶ 25.

¶31    The Court in McDermott faced a claim for unjust enrichment that arose from a 1973

transaction that predated the legislature’s 1989 adoption of the Trust Code. The legislature

addressed these situations when it enacted Section 72-33-102(1), MCA. The statute

expressly provides that the trust code applies to all trusts “regardless of when they were

created.” McDermott, ¶ 26. The Court affirmed the imposition of a constructive trust in


                                              11
2001 on the proceeds from the sale of the real property that had been sold in 1972.

McDermott, ¶ 28.

¶32    This Court previously recognized the broad discretion afforded by the principles of

equity to impose a constructive trust. Eckart v. Hubbard, 184 Mont. 320, 325, 602 P.2d 988,

991 (1979), affirmed that the principles of equity allowed a court simply to declare a

constructive trust “shall be [declared] to exist. Nothing else is required.” The statutory trust

scheme in effect in 1979 still required some sort of misconduct or wrongdoing on the part of

the defendant in order to establish a constructive trust. Eckart, 184 Mont. at 326, 602 P.2d at

991. The Court nevertheless recognized that constructive trusts “occur where the parties

have expressed no intent to create a trust.” Eckart, 184 Mont. at 326, 602 P.2d at 991. A

court creates a constructive trust “to work an equitable result.” Eckart, 184 Mont. at 326,

602 P.2d at 991; see also Lawrence v. Clepper, 263 Mont. 45, 52-53, 865 P.2d 1150, 1155-

1156 (1993) (confirming that the 1989 adoption of the Trust Code provides for imposition of

a constructive trust when equity requires it).

¶33    Other jurisdictions have evolved to this approach. The court in Simmonds v.

Simmonds, 380 N.E.2d 189, 194 (N.Y. 1978), recognized that “unjust enrichment, however,

does not require the performance of any wrongful act by the one enriched. Innocent parties

may frequently be unjustly enriched” (citations omitted). Unjust enrichment, as a concept of

restitution, simply requires that “a party hold property under such circumstances that in

equity and good conscience he ought not to retain it.” Simmonds, 380 N.E.2d at 194

(citations and internal quotations omitted). A constructive trust serves to prevent unjust

enrichment. Unjust enrichment, in the context of a constructive trust, “does not necessarily


                                              12
implicate the performance of a wrongful act.” Counihan v. Allstate Ins. Co., 194 F.3d 357,

361 (2d Cir. 1999).

¶34    The Utah Supreme Court likewise has clarified that a party who asserts a claim of

unjust enrichment need not establish any wrongful act. Rawlings v. Rawlings, 240 P.3d 754

(Utah 2010). Siblings argued in Rawlings that their older brother had been unjustly enriched

by accepting their contributions to a family farm. The father had deeded the property to the

older brother in what the siblings suggested was an attempt to create a constructive trust.

The father had been diagnosed with cancer and the siblings contended that owning the

property had made him ineligible for welfare assistance. The siblings alleged that the father

had placed the property in their older brother’s name so that the older brother could act as

trustee for the property for the benefit of the family. Rawlings, ¶ 1.

¶35    The trial court found that the older brother for decades had represented to his siblings

that the farm property was to be used to support their mother. The siblings contributed to the

upkeep and maintenance of the farm property because they believed the older brother’s

representations. Rawlings, ¶ 10. The Utah Supreme Court approved the imposition of a

constructive trust to avoid unjust enrichment to the older brother. The court reaffirmed its

position that unjust enrichment “will support imposition of a constructive trust, even absent

wrongful conduct.” Rawlings, ¶ 47, fn. 62; see also State ex rel. Palmer v. Unisys Corp.,

637 N.W.2d 142, 150 (Iowa 2001) (determining that unjust enrichment supports restitution

“with or without the existence of some underlying wrongful conduct”).

¶36    The court further explained that a claim for unjust enrichment requires proof of three

elements: “(1) a benefit conferred on one person by another; (2) an appreciation or


                                             13
knowledge by the conferee of the benefit; and (3) the acceptance or retention by the conferee

of the benefit under such circumstances as to make it inequitable for the conferee to retain

the benefit without payment of its value.” Rawlings, ¶ 29. The court emphasized that the

concept of unjust enrichment plays an important role as a tool of equity: “unjust enrichment

law developed to remedy injustice when other areas of the law could not,” and, therefore,

“must remain a flexible and workable doctrine.” Rawlings, ¶ 29 (citations omitted).

¶37    NCT brings its claim for unjust enrichment in the context of an alleged constructive

trust. The creation of a constructive trust “need not be limited to the person who obtained

property by fraud or deception from another.” Lawrence, 263 Mont. at 53, 865 P.2d at 1156.

Thus a party’s proof of unjust enrichment entitles it to restitution from the other party—

regardless of any wrongdoing on the part of the unjustly enriched party. Lawrence, 263

Mont. at 53, 865 P.2d at 1156.

¶38    This approach conforms with the modern view that unjust enrichment serves as a

unifying principle for a wide variety of equitable claims and that a court may order

restitution to vindicate these types of equitable claims. Dan B. Dobbs, Dobbs Law of

Remedies: Damages-Equity-Restitution vol. 1, § 4.1(3), 564 (Pract. Treatise Series, 2d ed.,

West 1993) [hereinafter Law of Remedies]. Under these circumstances, a court would

measure restitution remedies “by the defendant’s gain.” Dobbs, Law of Remedies at § 4.1(1),

555. The plaintiff, in the context of a constructive trust, need not necessarily have been

deprived of something in order to recover—it is sufficient that the defendant gained

something that it should not be allowed to retain. McDermott, ¶ 26; see also Restatement of

Restitution § 1 com. e (1937) (where “a benefit has been received by the defendant but the


                                             14
plaintiff has not suffered a corresponding loss or, in some cases any loss, but nevertheless the

enrichment of the defendant would be unjust . . . the defendant may be under a duty to give

the plaintiff the amount by which [the defendant] has been enriched”).

¶39    To summarize, the imposition of a constructive trust serves as a possible remedy to

rectify the unjust enrichment of a party. The aggrieved party, in this instance, NCT, first

must establish a claim of unjust enrichment in order for the court to consider the imposition

of a constructive trust as a possible remedy for the unjust enrichment. We agree with the

Utah court in Rawlings that NCT must establish the following elements to prove unjust

enrichment: (1) a benefit conferred upon St. Labre by another, in this case by third-party

donors moved by the plight of the NCT; (2) an appreciation or knowledge of the benefit by

St. Labre; and (3) the acceptance or retention of the benefit by St. Labre under such

circumstances that would make it inequitable for St. Labre to retain the benefit without

payment of its value. Rawlings, ¶ 29; 66 Am. Jur. 2d Restitution and Implied Contracts § 11.

NCT, as the aggrieved party, would not need to establish any wrongdoing on the part of St.

Labre. Lawrence, 263 Mont. at 53, 865 P.2d at 1156. Finally, a claim for unjust enrichment,

of the type asserted by NCT, should be limited to situations in which no other remedy exists.

Rawlings, ¶ 29.

¶40    The District Court improperly required NCT to establish evidence of bad acts or

wrongdoing on the part of St. Labre as an element of its claim of unjust enrichment in the

context of a constructive trust. See McDermott, ¶ 25. We reverse the District Court’s grant

of summary judgment with respect to NCT’s claims for unjust enrichment based upon St.

Labre’s fundraising efforts that took place after 2002. We remand this issue to the District


                                              15
Court to allow NCT to develop its claim that St. Labre’s fundraising appeals, that referred to

the Northern Cheyenne Reservation, or the condition of the tribal people living there, require

the imposition of a constructive trust on these funds raised from third-party donors for the

benefit of NCT to avoid unjust enrichment to St. Labre. The District Court further must

determine whether NCT has a right to possession of these funds, or some portion of these

funds, for itself or on behalf of the individual tribal members. NCT must support its claims

for unjust enrichment and imposition of a constructive trust with admissible evidence that

comports with the requirements of the law. See Hiebert, ¶¶ 30-32.

Unjust Enrichment Pre-2002

¶41    The District Court determined that the three-year statute of limitations barred NCT’s

unjust enrichment claims related to St. Labre’s fundraising that had taken place before 2002.

Section 27-2-202(3), MCA, provides for a three-year limitations period for the

commencement of an action upon an obligation or liability, other than a contract, account, or

promise, not founded upon an instrument in writing. The period of limitations for a

constructive trust or unjust enrichment claim begins when the claim accrues. Section 27-2-

102(2), MCA.

¶42    The District Court reasoned that a constructive trust would have been created by law

when St. Labre began “reaping enormous monies marketing the [NCT’s] plight and needs.”

The court concluded that any constructive trust would have been created by law in 1952

when St. Labre started its direct mail campaign. Accordingly, application of the three-year

statute of limitations would have run on NCT’s unjust enrichment and constructive trust

claims in 1955. NCT filed this action on March 11, 2005. The District Court granted


                                             16
summary judgment on NCT’s unjust enrichment claims that originated before March 11,

2002.

¶43     The District Court correctly determined that the statute of limitations generally begins

to run as to a constructive trust “at the moment the law creates the trust.” Opp v. Boggs, 121

Mont. 131, 139, 193 P.2d 379, 384 (1948).          An exception to this general rules exists,

however, where “there is a relationship of trust and confidence” and the beneficiary of the

constructive trust “has no reason to believe that the constructive trustee is holding the

property adversely.” Opp, 121 Mont. at 139, 193 P.2d at 384. The statute of limitations

begins to run on claims of constructive trust and unjust enrichment under the circumstances

of this “relationship of trust and confidence” only when “the beneficiary has received notice

of the assertion of an adverse interest.” Opp, 121 Mont. at 139, 193 P.2d at 384.

¶44     No express trust exists here. The existence of any trust alleged by NCT must arise,

therefore, in the context of a constructive trust. Constructive trusts may “occur where the

parties have expressed no intent to create a trust.” Eckart, 184 Mont. at 326, 602 P.2d at

991. A constructive trust simply serves “to work an equitable result.” Eckart, 184 Mont. at

326, 602 P.2d at 991. NCT alleges first that St. Labre’s fundraising efforts grounded on the

plight and need of the NCT have resulted in the unjust enrichment of St. Labre that requires

the imposition of a constructive trust. NCT further alleges that the circumstances that give

rise to the imposition of a constructive trust demonstrate a relationship of trust and

confidence between NCT and St. Labre.

¶45     The District Court determined that any unjust enrichment claim by NCT accrued

when St. Labre began fundraising in 1952. St. Labre would not necessarily be unjustly


                                              17
enriched simply by the fact that it raised money through its direct mail fundraising efforts

that marketed the plight and needs of the Northern Cheyenne. An unjust enrichment claim in

the context of a constructive trust created through the existence of a “relationship of trust and

confidence” accrues only when an entity in a position of trust acts adversely to the interest of

the beneficiary and “the beneficiary has received notice of the assertion of an adverse

interest.” Opp, 121 Mont. at 139, 193 P.2d at 384; see § 27-2-102(1)(a), MCA.

¶46    NCT argues that it did not receive notice of St. Labre’s adverse interest until St. Labre

stopped disbursements entirely to NCT when negotiations broke down with St. Labre in

2005. St. Labre argues that it informed NCT repeatedly, since as early as 1984, that it felt no

obligation, legal or other, to disburse funds raised through its fundraising efforts to NCT.

The existence of conflicting evidence as to when a cause of action accrued precludes

summary judgment based on the statute of limitations. Hill v. Squibb & Sons, E. R., 181

Mont. 199, 212, 592 P.2d 1383, 1390-1391 (1979).

¶47     The District Court concluded that NCT had been aware of St. Labre’s fundraising

efforts since at least 1952 when St. Labre began “reaping enormous monies marketing

[NCT’s] plight and needs.” The District Court further determined that NCT has “known

about St. Labre’s fundraising programs and has known that St. Labre has not given all of the

proceeds to the Tribe, nor ever intended to give all the proceeds to the Tribe.” The court

deemed NCT’s knowledge of St. Labre’s fundraising efforts and St. Labre’s intention of not

giving all of the proceeds of these fundraising efforts to NCT sufficient to trigger the launch

of the three-year statute of limitations.




                                               18
¶48    The District Court never addressed directly whether NCT actually received notice of

“the assertion of an adverse interest” by St. Labre. NCT’s mere knowledge of St. Labre’s

fundraising efforts would not necessarily trigger the statute of limitations in the context of a

constructive trust. NCT’s mere knowledge that St. Labre never intended to give “all of the

proceeds” to NCT likewise does not necessarily trigger the statute of limitations in the

context of a constructive trust.

¶49    The District Court cited to various documents that appear to evidence knowledge on

the part of NCT of disputes with St. Labre regarding the purpose and ownership of the funds

raised by St. Labre. For example, the court cited a 1983 memorandum of NCT’s St. Labre

Mission Task Force that raised “questions as to whether or not [St. Labre] is helping the

Northern Cheyenne to the fullest extent that it is capable.” The court also cited a 1997 letter

to NCT’s Tribal Council President that raised concerns with St. Labre’s apparent failure to

disclose “[f]inances, assets, investments, audits, etc.” Another 1997 statement from the NCT

Tribal President to St. Labre questioned whether NCT could continue to allow St. Labre “to

solicit monetary contributions on our behalf while we have little or no input.” Finally, the

court quoted from a 1999 letter from NCT’s Tribal President to St. Labre that threatened

legal action if St. Labre rebuffed NCT’s request for “a meaningful dialogue” to address the

appropriate distribution of the “vast sums” that St. Labre had raised “largely through the use

of the name, identity and symbols of the Tribe, as well as the persona of individual members

of the Tribe.”

¶50    NCT cites to portions of the record that contain various examples of efforts or

statements by St. Labre that could be construed as evidencing cooperation and good faith. A


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2000 letter from the executive director of St. Labre to NCT explains a recent $70,000 grant

from St. Labre to NCT. A 2000 response from the executive director of St. Labre to NCT’s

St. Labre Mission Task Force set forth St. Labre’s recent efforts to assist NCT, including

$2.7 million from the Northern Cheyenne Business Development Endowment Fund, a joint

endeavor of St. Labre and NCT. The letter also cites St. Labre’s transfer of the Northern

Cheyenne Pine Company to NCT for $1. The transaction apparently had a book value in

excess of $8 million. The letter goes on to discuss other areas of potential cooperation

before concluding with a warning that “in the spirit of honesty and good faith, there are some

expectations of the Task Force that St. Labre will not agree to.”

¶51    These documents raise the specter of two competing narratives: an acrimonious

history marked by discord, recriminations, and threats, or a history of mutual give and take

that reflects two competing, yet cooperative, visions of the role of St. Labre’s fundraising

efforts and the appropriate distribution of these funds. In light of the fact that District Court

did not evaluate the accrual date of NCT’s unjust enrichment claim under the standards that

we discuss here, we deem it appropriate to remand this issue to allow the District Court to

analyze in the first instance whether any genuine issues of material fact exist as to when

NCT became aware of the assertion of an adverse interest in the alleged constructive trust, by

St. Labre, the putative constructive trustee.

Forensic Accounting

¶52    NCT also argues that “Defendants” should be ordered to “open all books of

accounting” regarding anything of value that the Diocese and St. Labre have acquired over

this past half-century through the direct marketing enterprise or investment proceeds thereof.


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The District Court cited NCT’s failure to provide any Montana authority to support its claim

that forensic accounting constitutes a valid cause of action. NCT argues that forensic

accounting has survived as a viable cause of action in Montana since at least 1910.

¶53    NCT points to the Court’s decision in Alywin v. Morley, 41 Mont. 191, 108 P. 778

(1910). A legitimate need for an accounting cause of action may have existed in 1910. The

Court’s adoption of the Montana Rules of Civil Procedure, including those rules that pertain

to discovery, largely has eliminated the need for a stand-alone cause of action that seeks a

forensic accounting. Dobbs, Law of Remedies at § 4.3(5), 610. The Montana Rules of Civil

Procedure provide the appropriate tools for NCT to obtain pertinent financial information

from the Diocese and St. Labre. We agree with the District Court that NCT could obtain all

of the information that it needs to prove its unjust enrichment claim without a separate claim

of forensic accounting.

¶54    Whether the District Court properly granted summary judgment to St. Labre on

NCT’s claims of breach of contract, negligent misrepresentation, fraud, and wrongful

conversion?

¶55    The District Court granted summary judgment on NCT’s express and implied contract

claims due to NCT’s failure, under Hiebert, ¶ 31, to submit admissible evidence based on

personal knowledge to defeat a claim for summary judgment. NCT produced exhibits

without supporting affidavits or indications of personal knowledge. NCT also submitted

interrogatories that lacked signature pages. NCT further failed to paginate many of its

exhibits and thereby allow for pinpoint citations. NCT has failed to persuade us that the

District Court improperly granted summary judgment based on NCT’s failure to support its


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express and implied contract claims through admissible evidence based on personal

knowledge. Hiebert, ¶¶ 30-32.

¶56    The District Court determined that NCT had attempted to support its negligent

misrepresentation, fraud, and wrongful conversion claims through “unsupported, conclusory

statements.” For the same reason as its contract related claims, NCT has failed to persuade

us that the District Court improperly granted summary judgment on NCT’s claims of breach

of contract, negligent misrepresentation, fraud, and wrongful conversion. Hiebert, ¶¶ 30-32.



¶57    Whether the District Court properly granted judgment on the pleadings to St. Labre

on NCT’s cultural genocide and constitutional claims?

¶58    The District Court rejected NCT’s tort of cultural genocide due to NCT’s failure to

cite any authority that would establish or clarify the elements of the claim. The court also

rejected NCT’s constitutional claims on the basis that Article II, Sections 3, 4, and 10 protect

only against state action. The court further recognized that adequate non-constitutional

remedies exist to provide relief to NCT on its Section 3 claim.

¶59    We have not yet addressed a tort claim based directly upon an alleged violation of

Article II, Section 10 of the Montana Constitution.           We generally avoid addressing

constitutional issues if a defendant’s alleged harm can be remedied through a non-

constitutional basis. Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 62, 338

Mont. 259, 165 P.3d 1079. NCT has alleged potentially viable claims of unjust enrichment

and constructive trust that could serve as the basis for relief for St. Labre’s alleged failure to

distribute equitable shares of funds to NCT. An unjust enrichment claim can address


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sufficiently the principal harm alleged—whether NCT has been deprived of funds to which it

is entitled. We decline to address the District Court’s dismissal of NCT’s constitutional

claims made under these circumstances. Sunburst, ¶ 62.

                                      CONCLUSION

¶60    We reverse and remand the District Court’s decision to grant summary judgment to

the Diocese and St. Labre on NCT’s claim for unjust enrichment and the imposition of a

constructive trust that may arise from St. Labre’s fundraising activities after 2002. The court

improperly determined that NCT had to establish evidence of loss by NCT or wrongdoing by

the Diocese and St. Labre in order to make out a claim for unjust enrichment. We also

reverse and remand the District Court’s decision to grant summary judgment to the Diocese

and St. Labre regarding St. Labre’s fundraising activities before 2002. The District Court

should evaluate in the first instance the accrual date of NCT’s unjust enrichment claim

pursuant to the standards set forth herein. The District Court can address on remand those -

defenses raised by the Diocese and St. Labre not resolved through the summary judgment

proceedings. We affirm the District Court’s grant of summary judgment on all of NCT’s

remaining claims.


                                                   /S/ Brian Morris


We Concur:

/S/ Mike McGrath
/S/ Patricia O. Cotter
/S/ Beth Baker
/S/ Jim Rice




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