                                          No. 01-851

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 192N


GENE L. WILLISON,

              Plaintiff and Appellant,

         v.

MARTIN CAHOON, SR.,

              Defendant and Respondent.



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


COUNSEL OF RECORD:

              For Appellant:

                     Gene L. Willison (pro se), Townsend, Montana

              For Respondent:

                     Dean A. Stensland, Cynthia K. Thiel, Boone, Karlberg, P.C., Missoula,
                     Montana


                                                       Submitted on Briefs: May 16, 2002

                                                                 Decided:   August 29, 2002

Filed:

                     __________________________________________
                                       Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1996 Internal Operating Rules, the following decision shall not be

cited as precedent but shall be filed as a public document with the

Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number, and result to the State Reporter

Publishing Company and to West Group in the quarterly table of

noncitable cases issued by this Court.

¶2    The Plaintiff, Gene L. Willison, brought this action in the

District Court for the Fourth Judicial District in Missoula County

to recover damages from the Defendant, Martin Cahoon, Sr., based on

an alleged breach of contract.              The District Court concluded that

Willison's complaint was barred by the statute of limitations and

granted summary judgment to Cahoon.               Willison appeals the District

Court's order granting summary judgment.                We affirm the judgment of

the District Court.

¶3    The sole issue on appeal is whether the District Court erred

when it concluded that Willison's claim was barred by the statute
of limitations.

                      FACTUAL AND PROCEDURAL BACKGROUND

¶4    Unfortunately, the facts in this case, from Plaintiff Gene

Willison's perspective, are not clearly ascertainable.                          Despite

having ample opportunity, Willison opted not to present any factual

evidence at either the summary judgment hearing or by affidavit.

In   addition,     Willison      failed     to   present     a    clear   and   concise

recitation of the facts in his two-page pro se brief submitted on


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appeal. In contrast, Defendant, Martin Cahoon, Sr., provided a

factual background supported by hearing testimony, by affidavit,

and by Willison's deemed admissions.      Therefore, the following

factual background is based primarily on Cahoon's recitation of the

facts.

¶5   Martin Cahoon, Sr., was the owner of Rovero's, a hardware and

fuel distributor business located in Seeley Lake, Montana.          In

September of 1993, Cahoon opened a charge account for Gene Willison

to enable him to purchase fuel for his excavation business.        In

approximately October or November of 1994, the Plum Creek Timber

Company informed Willison that he would no longer be able to store

his excavation equipment on its property.         Shortly thereafter,

Willison sought permission from Cahoon to store his fuel truck and

excavator   on   Cahoon's   property.    Cahoon    agreed   with   the

understanding that his storage of Willison's property was in

consideration for his ability to use Willison's excavator for an

upcoming renovation project.      There was no written agreement

between the parties.   Cahoon's renovation project, the construction

of a convenience store/gas station, began in November of 1994.
¶6   Cahoon used Willison's excavator for four days in March of

1995 to dig holes for the installation of fuel tanks.        Sometime

before April 11, 1995, the date Cahoon suffered a heart attack,

Cahoon had completed his use of Willison's excavator and Willison

had retrieved all of his equipment from Cahoon's property.         All

construction work on the convenience store/gas station, including

the excavation work, was completed before the store opened on May



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10, 1995.       Cahoon subsequently sold the convenience store/gas

station on July 31, 1995.

¶7   On    November    21,   2000,   Willison,   acting   pro   se,   filed    a

complaint in the District Court for the Fourth Judicial District in

Missoula County, where he alleged that he was owed $15,000 "for the

unloading of (6) six 10,000 gallon fuel tanks, execavation [sic],

and placing of (6) six 10,000 gallon tanks, placing of bedding

material, and back filling the same, and excavation for canopy

stands."      Based on Willison's brief, it appears that Willison also

claims that Cahoon owes him money for use of his excavator.                The

precise nature of Willison's claim is difficult to determine.
¶8   Cahoon denied Willison's allegations and filed a counterclaim.

 On May 2, 2001, following limited discovery, Cahoon filed a motion

for summary judgment, and asserted that Willison's claim for

damages was barred by the statute of limitations applicable to oral

contracts.     Following a hearing, the District Court issued an order

granting Cahoon's motion for summary judgment.            Cahoon voluntarily

withdrew his counterclaim, and the District Court entered final

judgment for Cahoon on October 15, 2001.             On October 21, 2001,

Willison appealed the judgment of the District Court.

                             STANDARD OF REVIEW

¶9   This Court's standard of review in appeals from summary

judgment is de novo.         Motarie v. Northern Montana Joint Refuse

Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156.                 We

apply   the    same   Rule   56,   M.R.Civ.P.,   criteria   applied   by   the

district court.       Bruner v. Yellowstone County (1995), 272 Mont.



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261, 264, 900 P.2d 901, 903.           Rule 56(c), M.R.Civ.P., provides

that:

       [t]he judgment sought shall be rendered forthwith if the
       pleadings, depositions, answers to interrogatories, and
       admissions on file, together with the affidavits, if any,
       show that there is no genuine issue as to any material
       fact and that the moving party is entitled to a judgment
       as a matter of law.

¶10 The party moving for summary judgment has the initial burden
of establishing the absence of genuine issues of material fact.
Bruner, 272 Mont. at 264, 900 P.2d at 903. If that burden is met,
the burden shifts to the nonmoving party to raise a genuine issue
of material fact by more than mere denial or speculation. Bruner,
272 Mont. at 264, 900 P.2d at 903. Once a court determines that no
genuine factual issues exist, it then must determine whether the
moving party is entitled to judgment as a matter of law. Bruner,
272 Mont. at 264-65, 900 P.2d at 903. This Court reviews the legal
determinations made by a district court to determine if they are
correct. Bruner, 272 Mont. at 265, 900 P.2d at 903.
                                 DISCUSSION

¶11    Did the District Court err when it concluded that Willison's

claim was barred by the statute of limitations?

¶12    Willison contends that Cahoon should not be entitled to "hide

behind" the statute of limitations applicable to oral contracts

because,    originally,     Cahoon    dishonestly    denied    that      he   owed

Willison money or used his equipment.               According to Willison,

Cahoon    now    admits   through    court   documents    that      he   began   a

renovation project, used Willison's excavator, completed his use of

Willison's excavator before April 11, 1995, and expended labor and

materials to repair and service Willison's excavator.                    Because

Cahoon now admits to what he previously denied, Willison contends

that    Cahoon   should   not   be   able    to   rely   on   the   statute      of

limitations as a defense.




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¶13   Cahoon, on the other hand, contends that his storage, use, and

maintenance of Willison's excavator occurred in the early spring of

1995, sometime prior to April 11, 1995.         Because Willison failed to

file his complaint until November 21, 2000, Cahoon asserts that

Willison's claim is barred by the five-year statute of limitations

applicable to oral contracts set forth in § 27-2-202(2), MCA.                With

no genuine issues of material fact, Cahoon contends that he was

entitled to summary judgment as a matter of law.                  The District

Court agreed.
¶14   We should begin by clarifying that there was no evidence in

the record of a written contract between Willison and Cahoon.

However, in Willison's answer to Cahoon's counterclaim, Willison

describes   what   can   only   be   interpreted      as   an   oral   contract.

Therefore, we will proceed on that basis.

¶15   The time within which a claim for a breach of an oral contract

must be brought is set forth in Section 27-2-202(2), MCA, which

provides, "The period prescribed for the commencement of an action

upon a contract, account, or promise not founded on an instrument

in writing is within 5 years."        We have stated in the past that a

statute of limitation is a procedural device that operates as a

defense to limit the remedy available from an existing cause of

action, motivated "by considerations of fairness to defendants,"

and is "intended to encourage prompt resolution of disputes by

providing   a   simple   procedural       mechanism   to   dispose     of   stale

claims."    Joyce v. Garnaas, 1999 MT 170, ¶ 14, 295 MT 198, ¶ 14,

983 P.2d 369, ¶ 14 (quoting First United Methodist Church of



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Hyattsville v. United States Gypsum Co. (4th Cir. 1989), 882 F.2d

862, 866, cert. denied (1990), 493 U.S. 1070, 110 S.Ct. 1113, 107

L.Ed.2d 1020).

¶16     Here, Cahoon had the initial burden of showing that there was

no genuine issue of material fact.       Cahoon established, through his

affidavit and through testimony at the summary judgment hearing,

that he began a renovation project on his property in November of

1994, and used Willison's excavator in March of 1995.          Cahoon also

established that before April 11, 1995, he had completed his use of

Willison's     excavator   and   Willison   had   already   retrieved   his

equipment from Cahoon's lot.       Therefore, Cahoon demonstrated that

the events which formed the basis of Willison's complaint took

place    more than five years before Willison filed his complaint on

November 21, 2000.
¶17     Because Cahoon met his burden, the burden then shifted to

Willison to raise a genuine issue of material fact.              Willison

failed to present any evidence whatsoever that raised a genuine

issue of material fact with regard to the factual timeline of

relevant events.      Willison presented no evidence at the summary

judgment hearing and presented no affidavits to dispute Cahoon's

assertions.     In fact, Willison failed to respond to a request for

admission made by Cahoon which went directly to the statute of

limitations question. Cahoon's Request for Admission No. 1 stated:

             In your Complaint you allege that Cahoon owes you a
        debt "in the sum of $15,000.00 (Fifteen Thousand Dollars
        and no cents), due and owed for the unloading of (6) six
        10,000 gallon tanks, excavation, and placing (6) six
        10,000 gallon tanks, placing of bedding materials, and
        back filling the same, the excavation for canopy stands."


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            With respect to said allegation, please admit that
       the above-referenced actions allegedly taken by Cahoon
       occurred before November 21, 1995.

¶18    Failure to respond or object to a request for admission within

thirty days results in an admission.                Rule 36(a), M.R.Civ.P.

Admissions based on a party's failure to respond may be used as a

basis for granting summary judgment.          Holmes & Turner v. Steer-In

(1986), 222 Mont. 282, 285, 721 P.2d 1276, 1278.               Therefore, it is

undisputed     that   the   events   which   led    to   the   allegations       in

Willison's complaint had completely transpired before November 21,

1995.
¶19    Willison's contention that the statute of limitations should

not be applied based on reasons of fairness is meritless.                Willison

had firsthand knowledge of the facts and circumstances which gave

rise    to   his   claim,   yet   simply   failed   to   act    on    his    claim.

Therefore, we conclude that because there was no genuine issue of

material fact and Willison's claim was barred by the five-year

statute of limitations for enforcing oral contracts, the District

Court did not err when it granted summary judgment to Cahoon.

¶20    Accordingly, we affirm the judgment of the District Court.


                                                         /S/         TERRY       N.
TRIEWEILER

We Concur:


/S/   W. WILLIAM LEAPHART
/S/   JIM REGNIER
/S/   PATRICIA COTTER
/S/   JIM RICE




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