                                                                                           December 9 2008


                                           DA 06-0438

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 410



DANIEL MARX,

              Plaintiff and Appellant,

         v.

BELGRADE VOLUNTEER FIREFIGHTERS RELIEF ASSOC.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DV-2004-481
                        Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Michael J. San Souci, Law Office of Michael J. San Souci,
                        Bozeman, Montana

                For Appellee:

                        Kristin N. Hansen, Moore, O’Connell & Refling, P.C., Bozeman, Montana



                                                     Submitted on Briefs: April 11, 2007

                                                                Decided: December 9, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Daniel Marx appeals from the order of the Eighteenth Judicial District Court,

Gallatin County, granting summary judgment in favor of the Belgrade Volunteer

Firefighters Relief Association (Association). We affirm.

                                   BACKGROUND

¶2     Marx began active service with the Belgrade Rural Fire Department (Department),

on a volunteer basis, in 1979. In 1995, he requested a temporary leave of absence from

the Department in order to devote more time to family commitments and to his outside

job, where he had been recently promoted. In addition, as of July of that year, Marx had

not completed the training requirements necessary to continue serving as a volunteer

firefighter with the Department. As a result, the Department had placed him on probation

for the calendar quarter running July 1 through September 30, 1995, and had cautioned

him that “if you don’t meet the minimum requirements for the next quarter, you will be

removed from the rolls of the department.” Marx indicated in his request for a temporary

leave that he would complete the training requirements during his leave of absence.

¶3     The Department’s acting chief submitted a letter to the Association’s Board of

Trustees (Board) recommending Marx be given until the end of October 1995 to

complete a CPR refresher course and until January 1996 to meet the other minimum

training requirements. The Board considered Marx’s request at its October 3, 1995

meeting and rejected the Chief’s recommendation. The Board instead terminated Marx’s

service.




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¶4     Following his termination, Marx claims he made a number of verbal requests to

the Board for a partial pension under § 19-18-602(5), MCA (1995).1 That provision

states, in pertinent part, that a member of a pure volunteer fire department who has

completed 10 years’ service as an active member of the department but who is prevented

from completing 20 years’ service by “any . . . factor beyond his reasonable control may

nevertheless qualify for a partial or reduced pension in an amount and to the extent

determined by the board of trustees of the association.” Section 19-18-602(5), MCA.

¶5     According to Marx’s affidavit filed in the District Court, the first of his requests

for a partial pension occurred within six months after his termination, and he was

“assured” that the Board would act on the request and notify him of its decision. Marx

states that he reiterated his request a number of times over the next few years and that the

Board repeatedly assured him of its intent to act upon the request. However, because he

was “continually left in a state of limbo,” Marx finally sent a written “follow-up request”

for the partial pension to the Board on December 21, 2002.

¶6     In March 2004, the Board denied Marx’s request in a letter, explaining that “[t]he

trustees believe that your request does not meet the criteria for giving benefits.” The

Board enclosed with the letter a copy of § 19-18-602, MCA, which the Board stated was

“the basis for [its] decision.” Subsection (5) of § 19-18-602, MCA, was highlighted and

the language “other factor beyond the member’s reasonable control may qualify for a

partial or reduced pension” was underlined. The Board included no other justification or

explanation for denying Marx’s pension request.

       1
           All statutory references are to the 1995 version of the Montana Code Annotated.

                                             3
¶7     Marx filed the instant action against the Association on August 25, 2004, seeking

damages and declaratory relief. He alleged that he qualified for a partial or reduced

pension under § 19-18-602(5), MCA, and that the Board had abused its discretion and

acted arbitrarily and capriciously in denying him this pension. In August 2005, the

Association filed a motion for summary judgment, relying in part on a statute of

limitations defense. The Association argued that under § 27-2-211(1), MCA, Marx was

required to have filed suit within two years of his termination, i.e., “not later than October

5, 1997, some eight years ago.”

¶8     The District Court agreed with the Association and granted its motion on May 11,

2006. The court first observed that Marx had raised a genuine issue of material fact “as

to [the] reason for his termination.” Accordingly, the court assumed for purposes of its

analysis that Marx had been terminated from the Department “for reasons beyond his

control” and, thus, could qualify for a partial or reduced pension under § 19-18-602(5),

MCA. The court identified the next issue as “how long a claimant has to claim his or her

pension.” Observing that § 19-18-602, MCA, and the surrounding provisions do not

provide an answer, the court turned to § 27-2-211(1)(c), MCA, which establishes a two-

year statute of limitations for claims arising out of “a liability created by statute other

than . . . a penalty or forfeiture; or a statutory debt created by the payment of public

assistance” (paragraph breaks omitted). The court decided that a volunteer firefighter’s

potential right to a service pension is “a liability created by statute that is not a penalty,

forfeiture, or statutory debt created by the payment of public assistance.” Accordingly,

the court concluded that the two-year statute of limitations applied to Marx’s claim.


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Lastly, the court noted that the statute of limitations does not start to run until the claim

accrues. In this regard, § 27-2-102(1)(a), MCA, states that “a claim or cause of action

accrues when all elements of the claim or cause exist or have occurred, the right to

maintain an action on the claim or cause is complete, and a court or other agency is

authorized to accept jurisdiction of the action.” In light of this definition, the court

reasoned that once Marx was dismissed from the Department in October 1995, “his

potential entitlement to a partial pension vested under the provisions of § 19-18-602,

MCA. That is, nothing more had to happen in order for him to be able to request the

partial pension.”

¶9     Based on the foregoing analysis, the District Court concluded the Association had

established a valid statute of limitations defense under § 27-2-211(1)(c), MCA; that Marx

had not met his burden as the party opposing summary judgment to show a genuine issue

of material fact related to the application of § 27-2-211, MCA; and that under the

undisputed relevant facts, the Association was entitled to judgment as a matter of law. In

reaching this conclusion, the court rejected Marx’s arguments under a separate statute,

§ 27-2-301, MCA, on the grounds that this statute was inapplicable and that, even if the

statute did apply, Marx’s claim was still untimely. (The District Court’s reasoning with

respect to § 27-2-301, MCA, is discussed below.)

¶10    Marx now appeals.

                                          ISSUES

¶11    Broadly speaking, the issue on appeal is whether the District Court erred in

granting the Association’s motion for summary judgment. In challenging the District


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Court’s decision, Marx asserts three theories. First, he contends that the accrual date of

his cause of action is controlled by § 27-2-301, MCA, and that the District Court erred in

its analysis under this statute. Second, he contends that the doctrines of estoppel and

waiver precluded the Association from asserting a statute of limitations defense in the

first place. Third, he contends that under the doctrine of equitable tolling, the statute of

limitations applicable to this action could be “equitably modified” or simply “precluded.”

¶12    As to the second and third theories, Marx’s arguments consist of nothing more

than conclusory assertions. He neither lays out the elements of estoppel, waiver, and

equitable tolling nor explains, based on a proper application of law to facts, why he is

entitled to relief under these doctrines. With respect to the tolling theory in particular, we

note that Marx’s arguments in his appellate briefs are dedicated almost exclusively to the

question of when his cause of action accrued, not whether the statute of limitations was

tolled, and he cites no authority whatsoever for the proposition that, in the absence of an

applicable statute, a mere informal request for action or relief tolls a statute of limitations

indefinitely.

¶13    This approach is an utterly inadequate presentation of an issue to this Court. See

M. R. App. P. 12(1)f. (requiring the argument section of the appellant’s brief to contain

“the contentions of the appellant with respect to the issues presented, and the reasons

therefor, with citations to the authorities, statutes, and pages of the record relied on”); see

also e.g. State v. Mackrill, 2008 MT 297, ¶ 49, 345 Mont. 469, ¶ 49, 191 P.3d 451, ¶ 49;

Jackson v. Jackson, 2008 MT 25, ¶ 18, 341 Mont. 227, ¶ 18, 177 P.3d 474, ¶ 18. It is not

this Court’s job to conduct legal research on a party’s behalf or to develop legal analysis


                                              6
that may lend support to the position he advances. See In re Marriage of McMahon,

2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 1266, ¶ 6; State v. Gomez, 2007 MT 111,

¶ 33, 337 Mont. 219, ¶ 33, 158 P.3d 442, ¶ 33. Accordingly, we will not further address

Marx’s estoppel, waiver, and equitable-tolling theories.

¶14    The sole issue on appeal, therefore, is whether the District Court erred in granting

summary judgment in favor of the Association based on an incorrect determination of the

accrual date of Marx’s cause of action.

                              STANDARDS OF REVIEW

¶15    We review a district court’s ruling on a motion for summary judgment de novo,

applying the criteria set forth in M. R. Civ. P. 56. Willden v. Neumann, 2008 MT 236,

¶ 13, 344 Mont. 407, ¶ 13, 189 P.3d 610, ¶ 13; Corporate Air v. Edwards Jet Center,

2008 MT 283, ¶ 24, 345 Mont. 336, ¶ 24, 190 P.3d 1111, ¶ 24. Rule 56(c) provides that

the 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.” The party moving for summary judgment has the initial

burden of establishing both the absence of genuine issues of material fact and entitlement

to judgment as a matter of law. Corporate Air, ¶ 25. The evidence must be viewed in the

light most favorable to the nonmoving party, and all reasonable inferences are to be

drawn therefrom in favor of the party opposing summary judgment.               Peterson v.

Eichhorn, 2008 MT 250, ¶ 12, 344 Mont. 540, ¶ 12, 189 P.3d 615, ¶ 12. If the moving

party meets its initial burden, then the burden shifts to the nonmoving party to establish


                                             7
with substantial evidence, as opposed to mere denial, speculation, or conclusory

statements, that a genuine issue of material fact does exist. Peterson, ¶ 13; Willden, ¶ 13.

If no genuine issue of material fact exists, then the court determines whether the moving

party is entitled to judgment as a matter of law. Corporate Air, ¶ 25. This determination

is a conclusion of law, which we review for correctness. Corporate Air, ¶ 25.

¶16    Whether the Association is entitled to judgment as a matter of law on its statute of

limitations defense requires an interpretation and application of pertinent statutes. This

Court reviews for correctness a district court’s interpretation and application of a statute.

In re A.W., 1999 MT 42, ¶ 6, 293 Mont. 358, ¶ 6, 975 P.2d 1250, ¶ 6; Williams v.

Zortman Mining, Inc., 275 Mont. 510, 512, 914 P.2d 971, 972-73 (1996).

                                      DISCUSSION

¶17    Did the District Court err in granting summary judgment in favor of the
       Association based on an incorrect determination of the accrual date of Marx’s
       cause of action?

¶18    Marx does not address the preliminary steps in the District Court’s analysis. As

noted, the court assumed, for the sake of argument, that Marx could qualify for a partial

or reduced pension under § 19-18-602(5), MCA. The court then decided that the “right

to a service pension” is “a liability created by statute” as contemplated by

§ 27-2-211(1)(c), MCA.       Thus, the court concluded that the two-year statute of

limitations in § 27-2-211(1)(c), MCA, applied to Marx’s cause of action.

¶19    Marx begins the Argument section of his brief with the statement, “Even assuming

that the two-year limitations period for statutory obligations under §27-2-211[(1)](c),

MCA, applies in this case . . . .” It is not clear from Marx’s use of the prefatory words


                                             8
“Even assuming” whether (1) he does not believe that § 27-2-211(1)(c), MCA, is the

appropriate statute of limitations here or (2) he is making an offhand reference to his

theory that the Association is precluded by estoppel and waiver from asserting a statute of

limitations defense in the first place. Either way, he presents no argument that a different

statute of limitations provision should apply, and his estoppel and waiver contentions are

not properly before us for the reasons discussed above. Thus, we proceed on the premise

that § 27-2-211(1)(c), MCA, is the applicable statute of limitations.

¶20    The crux of the issue raised by Marx is when the two-year limitations period began

to run, i.e., when his cause of action against the Association accrued. In answering this

question, the District Court relied on § 27-2-102(1)(a), MCA, which, as noted, states that

a cause of action accrues “when all elements of the claim or cause exist or have occurred,

the right to maintain an action on the claim or cause is complete, and a court or other

agency is authorized to accept jurisdiction of the action.” Based on this statute, the court

concluded that Marx’s cause of action accrued in October 1995 when he was dismissed

from the Department and that the statute of limitations, therefore, expired in October

1997. It is on this point that Marx contends the District Court erred.

¶21    Specifically, Marx articulates a “theory of delayed accrual.” He first asserts that

§ 27-2-211(1)(c), MCA, is “subject to the accrual rules” set forth in Title 27, chapter 2,

part 3, MCA. In particular, he relies on § 27-2-301, MCA, which states as follows:

       Where a right exists but a demand is necessary to entitle a person to
       maintain an action, the time within which the action must be commenced
       must be computed from the time when the demand is made, except where
       the right grows out of the receipt or detention of money or property by an
       agent, trustee, attorney, or other person acting in a fiduciary capacity, the


                                             9
       time must be computed from the time when the person having the right to
       make the demand has actual knowledge of the facts upon which that right
       depends.

In addition, Marx cites Viers v. Webb, 76 Mont. 38, 245 P. 257 (1926), as standing for the

rule that “in fiduciary relationships, such as a bailment or trust, the statute of limitations

does not begin to run until a demand or request has been made which is then denied or

rejected.” He also cites State ex rel. Central Auxiliary Corporation v. Rorabeck, 111

Mont. 320, 108 P.2d 601 (1940), for the proposition that “the statute of limitations does

not run until a trustee formally repudiates his obligation.” Applying these rules and

§ 27-2-301, MCA, to the case at hand, Marx argues that “the Association’s position did

not become clear or irretrievable until its trustees and officers had finally issued a formal

or official notification of their determination to deny his request, with the same being

mailed on March 18, 2004.” In Marx’s view, therefore, his “obligation to commence

litigation did not accrue and/or was not triggered until that time - the intervening delays

of the Association notwithstanding.”

¶22    We are not persuaded by Marx’s reliance on § 27-2-301, MCA, and his rule of

“formal” repudiation/denial. At the outset, Marx does not point to any statutory language

(and we have found none) stating that the two-year limitations period prescribed by

§ 27-2-211(1)(c), MCA, is “subject to” the accrual rule in § 27-2-301, MCA. Rather, the

statutory scheme states that, “[u]nless otherwise provided by statute, the period of

limitation begins when the claim or cause of action accrues,” § 27-2-102(2), MCA, and

“a claim or cause of action accrues when all elements of the claim or cause exist or have




                                             10
occurred, the right to maintain an action on the claim or cause is complete, and a court or

other agency is authorized to accept jurisdiction of the action,” § 27-2-102(1)(a), MCA.

¶23    The accrual provisions set out in §§ 27-2-301 to -304, MCA, apparently supersede

§ 27-2-102(1)(a), MCA, in the particular circumstances addressed in §§ 27-2-301 to -304,

MCA.       For instance, § 27-2-301, MCA, applies to situations in which a demand is

necessary to entitle a person to maintain an action; § 27-2-302, MCA, applies to mutual

accounts; § 27-2-303, MCA, applies to actions for waste, trespass, or injury committed

during mining work or exploration; and § 27-2-304, MCA, applies to actions involving

personal property accruing after death and before issuance of letters of administration.

However, nothing in § 27-2-211(1), MCA, indicates that an action upon a liability created

by statute is “subject to” the specific accrual provisions in §§ 27-2-301 to -304, MCA, as

opposed to the general accrual provision in § 27-2-102(1)(a), MCA.

¶24    The only remaining question, therefore, is whether § 27-2-301, MCA, supersedes

§ 27-2-102(1)(a), MCA, on the facts of this case. The language of § 27-2-301, MCA,

suggests it does not for at least two reasons. First, this provision applies “[w]here a right

exists but a demand is necessary to entitle a person to maintain an action.” Section

27-2-301, MCA.      Marx cites no authority for the proposition that “a demand” was

necessary before he could maintain an action against the Association for a partial

pension.

¶25    Second, and at the heart of Marx’s arguments, § 27-2-301, MCA, prescribes a

special accrual rule where “the right grows out of the receipt or detention of money or

property by an agent, trustee, attorney, or other person acting in a fiduciary capacity.” In


                                             11
that situation, “the time [within which the action must be commenced] must be computed

from the time when the person having the right to make the demand has actual

knowledge of the facts upon which that right depends.” Section 27-2-301, MCA. Marx’s

position appears to be that the Board was acting in a fiduciary capacity vis-à-vis the

partial pension for which he claims he qualified under § 19-18-602(5), MCA.            The

District Court accepted this premise for the sake of analysis.2 The court then reasoned

that Marx’s repeated requests for a partial pension, which he began making within six

months of his October 1995 termination, evidenced his “actual knowledge of his right to

apply for a partial pension” and the two-year limitations period, therefore, began to run

sometime in 1996. Furthermore, the court concluded that the Association’s alleged delay

in providing Marx with a definite answer to his verbal requests was irrelevant in light of

our statement in Pincus v. Pincus’ Estate, 95 Mont. 375, 26 P.2d 986 (1933), that the

statute of limitations commences to run “from the time that plaintiff knew the facts which

would have justified him in making demand” for the profits to which he claimed he was

entitled. Pincus, 95 Mont. at 386-87, 26 P.2d at 991 (citing § 9058, RCM (1921), which

is now § 27-2-301, MCA).

¶26    Marx, however, argues that he could not have had “actual knowledge of the facts

upon which [his] right depends” until the Board sent him the repudiation letter in March


       2
         The issue of whether Marx in fact qualified for a partial pension, which the
Board (allegedly) arbitrarily and capriciously denied, was not resolved in the District
Court since the court dismissed his complaint at the summary judgment stage based on
the statute of limitations. Likewise, here, for the sake of argument, we accept, but do not
resolve, the premise that that the Board was acting in a fiduciary capacity vis-à-vis a
partial pension to which Marx was entitled.

                                            12
2004. He likens the instant action against the Association to an action “for breach of a

trust or fiduciary obligation,” and he asserts that such an action does not accrue until the

trustee/fiduciary “formally repudiates” its obligation and the beneficiary has knowledge

of that repudiation. Notably, none of the authorities cited by Marx in support of this

argument uses the term “formally repudiates” or “formal repudiation,” see Rorabeck, 111

Mont. 320, 108 P.2d 601; Viers, 76 Mont. 38, 245 P. 257; Blackford v. City of Libby, 103

Mont. 272, 62 P.2d 216 (1936); Cobell v. Norton, 260 F. Supp. 2d 98 (D.D.C. 2003);

Oeth v. Mason, 56 Cal. Rptr. 69 (Cal. App. 2d Dist. 1967); April Enterprises, Inc. v.

KTTV, 195 Cal. Rptr. 421 (Cal. App. 2d Dist. 1983); Restatement (Second) of Trusts

§ 219 (1992), and Marx cites no authority holding that a repudiation of a fiduciary

obligation must be accomplished by written letter (as opposed to conduct amounting to a

repudiation). But the ultimate flaw in Marx’s argument is that he essentially would have

us insert a requirement of “formal repudiation” or “formal denial of a claim” into

§ 27-2-301, MCA. This we may not do. See § 1-2-101, MCA (“In the construction of a

statute, the office of the judge is simply to ascertain and declare what is in terms or in

substance contained therein, not to insert what has been omitted or to omit what has been

inserted.”).

¶27    Again, the statutory language under consideration states that “the time [within

which the action must be commenced] must be computed from the time when the person

having the right to make the demand has actual knowledge of the facts upon which that

right depends.” Section 27-2-301, MCA (emphasis added). Marx’s right depends on the

facts that he was a member of a pure volunteer fire department who completed 10 years’


                                            13
service as an active member of the department but was prevented from completing 20

years’ service by a “factor beyond [his] reasonable control.” Section 19-18-602(5),

MCA. Marx had actual knowledge of these facts in October 1995. Even assuming the

Board was acting in a fiduciary capacity and it detained money or property to which

Marx was entitled, Marx has failed to show error in the District Court’s determination

that, under § 27-2-301, MCA, his action accrued in October 1995.

¶28    Before concluding, we note Marx’s reliance on Martin v. Construction Laborer’s

Pension Trust, 947 F.2d 1381 (9th Cir. 1991), Wetzel v. Lou Ehlers Cadillac Group, 222

F.3d 643 (9th Cir. 2000), and Kosty v. Lewis, 319 F.2d 744 (D.C. Cir. 1963), for the

proposition that a suit to enforce rights under a pension plan accrues when there has been

“a clear and continuing repudiation” of rights made known to the beneficiary, and not

while the trustees are “giving continuing consideration” to the applicant’s eligibility. We

find these cases inapposite for the simple reason that “federal law determines the time at

which the cause of action accrues,” Martin, 947 F.2d at 1384, whereas here we are

concerned with the rules of accrual provided under Montana law in §§ 27-2-102(1)(a)

and -301, MCA.

¶29    We also note Marx’s argument that under the District Court’s interpretation and

application of the foregoing statutes, “participants, beneficiaries and claimants effectively

could be required to file suit before their administrative remedies have been exhausted.”

Marx likens this to a “shoot first and ask questions later” approach, and he speculates that

had he filed suit prior to the March 2004 written denial, the Association would have

complained that his suit was “premature.” Marx also claims it was not “his fault” the


                                             14
Association “consistently put [him] off” and it was not “fair” for the Association to

ignore his requests. Whether or not these statements are true, however, they ultimately

miss the mark.     Marx identifies no statutory provision requiring him to exhaust

“administrative remedies” before pursuing an action for a partial pension. Moreover, his

assertions in this regard seem to relate more to his estoppel and waiver theories than the

application of §§ 27-2-102(1)(a) and -301, MCA.

                                    CONCLUSION

¶30   With respect to the Association’s statute of limitations defense, we conclude that

the Association met its initial burden, as the moving party, of establishing both the

absence of genuine issues of material fact and its entitlement to judgment as a matter of

law. Furthermore, Marx did not meet his burden as the nonmoving party of establishing,

with substantial evidence, the existence of a genuine issue of material fact. Based on the

application of §§ 27-2-102(1)(a), -211(1)(c), and -301, MCA, to the undisputed relevant

facts, the Association was entitled to judgment as a matter of law on its statute of

limitations defense. Accordingly, we affirm the decision of the District Court.

¶31   Affirmed.

                                                       /S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART




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