                                            No. 05-121

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2006 MT 50N

                                                 _______________________________________

JAY M. GASVODA and SHELLY GASVODA,

              Plaintiffs and Appellants,

         v.

RAVALLI COUNTY,

              Defendant and Respondent.

                                                  ______________________________________

APPEAL FROM:         District Court of the Twenty-First Judicial District,
                     In and for the County of Ravalli, Cause No. DV 2004-378
                     The Honorable James A. Haynes, Judge presiding.


COUNSEL OF RECORD:

              For Appellants:

                     Howard C. Greenwood, Attorney at Law, Hamilton, Montana

              For Respondent:

                     George H. Corn, County Attorney; D. James McCubbin, Deputy County
                     Attorney, Hamilton, Montana


                                                    ____________________________________

                                                         Submitted on Briefs: February 14, 2006

                                                                       Decided: March 7, 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     Jay M. Gasvoda and Shelly Gasvoda (collectively Gasvoda) appeal from the

Opinion and Order issued by the Twenty-First Judicial District, Ravalli County, denying

their motion to set aside the District Court’s earlier order granting Ravalli County’s

motion to dismiss the claims against it. Gasvoda’s challenge alleges that the District

Court improperly focused upon the “defense” of statute of limitations when Ravalli

County had failed to plead statute of limitations as an affirmative defense in its answer to

the complaint as required by Rule 8(c), M.R.Civ.P.

¶3     Gasvoda filed a civil complaint against Ravalli County on August 27, 2004. The

complaint alleges that Ravalli County had breached a written contract that it had entered

with Gasvoda eight years and one day earlier on August 26, 1996. Ravalli County timely

filed a motion to dismiss and supporting brief on September 27, 2004, based upon the

fact that the eight-year statute of limitations for claims based on a written contract barred

any possible claim by Gasvoda. Gasvoda filed no answer or other responsive brief within

the time period prescribed by Uniform District Court Rule 2.            The District Court

therefore deemed Ravalli County’s motion to dismiss to be well taken and granted


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dismissal of Gasvoda’s complaint with prejudice in an Order dated October 20, 2004.

¶4     Gasvoda filed a motion on October 27, 2004, requesting that the District Court set

aside the dismissal order pursuant to Rule 60(b) of the Montana Rules of Civil Procedure.

The District Court denied Gasvoda’s motion to set aside the dismissal based, in large

part, upon the fact that the statute of limitations defense raised by Ravalli County in its

motion to dismiss likely barred any meritorious claim by Gasvoda. See Essex Ins. Co. v.

Jaycie, Inc., 2004 MT 278, ¶ 12, 323 Mont. 231, ¶ 12, 99 P.3d 651, ¶ 12.

¶5     We review a District Court’s refusal to set aside an order pursuant to an abuse of

discretion standard. In re Paternity and Custody of B.E.S., 1998 MT 190, ¶ 13, 290

Mont. 188, ¶ 13, 963 P.2d 449, ¶ 13. The issue of whether a district court properly

applied the statute of limitations and granted a motion to dismiss pursuant to Rule

12(b)(6), M.R.Civ.P., presents a question of law. Lundquist v. McBeth, 2001 MT 311, ¶

13, 308 Mont. 1, ¶ 13, 38 P.3d 831, ¶ 13. We review issues of law to determine whether

the district court’s application or interpretation of the law is correct. Hollister v. Forsythe

(1995), 270 Mont. 91, 93, 889 P.2d 1205, 1206.

¶6     The briefs and record presented indicate that settled Montana law controls the

outcome and the District Court correctly applied this settled law. Ravalli County filed a

motion to dismiss Gasvoda’s complaint based upon the fact that the statute of limitations

barred such a claim and therefore Gasvoda had no claim upon which relief could be

granted. Rule 12(b)(6), M.R.Civ.P.; Williams v. Zortman Mining, Inc. (1996), 275 Mont.

510, 513-14, 914 P.2d 971, 974. A party properly may raise the statute of limitations

defense in a motion to dismiss where, as here, the allegations contained in the complaint


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demonstrate that the statute of limitations bars the claims. See Beckman v. Chamberlain

(Mont. 1983), 673 P.2d 480, 482. Nothing in the record indicates the District Court

abused its discretion in refusing to set aside its order dismissing Gasvoda’s complaint.

The statute of limitations defense raised by Ravalli County’s motion to dismiss precluded

Gasvoda from establishing a meritorious response to the motion to dismiss. Essex Ins.

Co., ¶ 12. We affirm the District Court.

¶7    We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, that provides for memorandum

opinions.

                                                      /S/ BRIAN MORRIS



We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART




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