                                                                                              05/26/2020


                                          DA 19-0560
                                                                                          Case Number: DA 19-0560

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2020 MT 139N



JAMES MAHER,

              Plaintiff and Appellee,

         v.

JACQUELINE COLOMBE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Jefferson, Cause No. DV-2018-55
                        Honorable Luke Berger, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jacqueline Colombe, Self-Represented, Basin, Montana

                For Appellee:

                        Brian J. Miller, Morrison Sherwood Wilson & Deola, PLLP,
                        Helena, Montana



                                                    Submitted on Briefs: April 22, 2020

                                                               Decided: May 26, 2020


Filed:

                                        r--6ta•--df
                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


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

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, 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     Jacqueline Colombe, pro se, appeals a Fifth Judicial District Court order granting

summary judgment to James Maher on his claims of trespass and possession and

dismissing Colombe’s counterclaims of breach of contract and fraud. We affirm.

¶3     In 1994, Colombe and her then-husband, William Rollins, entered into a purchase

and sale agreement with Keith Johnson for a 13-acre tract of land in Basin, Montana

(“Johnson Contract”).     Colombe and Rollins placed a manufactured home on the

property. In February 1995, Colombe, Rollins, and Maher entered into a contract in

which Colombe and Rollins agreed to sell Maher 4.3 acres of the 13-acre tract. In July

1998, Colombe, Rollins, and Maher entered another contract in which Colombe and

Rollins agreed to sell Maher an “additional piece of land” beyond the 4.3 acres in the

February 1995 contract, consisting of “approximately one half acre.” This contract stated

that it “is to be read consistently with the original contract and all terms of the original

contract are to be incorporated with this agreement as far as such consistency allows.”

The contract further provided that it “is the full and final understanding of the parties and

cannot be contradicted or modified unless in writing and signed by the parties.” Colombe


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and Rollins subsequently missed several loan and property tax payments on their

remaining property, resulting in a 2003 tax deed issued on the property.

¶4    In 2001, Colombe and Rollins divorced. Colombe was awarded the property, the

manufactured home, and the associated financial obligations. Colombe struggled to

make consistent loan and tax payments on the property but never defaulted. In 2003,

Maher and Colombe became romantically involved, cohabitating on Colombe’s property.

Maher began paying the taxes and loan payments on Colombe’s property. In January

2005, Maher paid off the remaining $15,465 balance on the Johnson Contract. On

February 14, 2005, Colombe granted her remaining property interest under the Johnson

Contract by quitclaim deed to Maher. Colombe later asserted that at the time of the

quitclaim, Maher purportedly told her that he would transfer her share of the 13 acres

back to her at some time in the future.         No writing was created to evidence this

agreement.

¶5    In 2011, Maher and Colombe ended their relationship. Colombe requested the

property be returned to her but Maher declined to do so. It is undisputed that Colombe

did not pay taxes on the property from 2011 onward, did not pay water and sewer bills,

and has not lived in the manufactured home on the property since 2017.

¶6    On June 27, 2018, Maher filed a Complaint in District Court for trespass, eviction,

possession, breach of contract, and tortious conduct against Colombe. In August 2018,

Colombe counterclaimed for breach of contract and fraud. On April 12, 2019, Maher

moved for summary judgment on his trespass and possession claims and on Colombe’s

counterclaims. On July 10, 2019, the District Court granted summary judgment to Maher

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on his claims of trespass and possession, finding that Colombe failed to raise any material

factual dispute regarding Maher’s right to exclusively possess the property. The court

also granted summary judgment in favor of Maher as to Colombe’s counterclaims,

determining that the breach of contract claim was invalid under the statute of frauds, and

further, that both the breach of contract and fraud claims were time barred by the statute

of limitations. Colombe appeals.

¶7     We review a district court’s grant or denial of summary judgment de novo.

Revelation Indus., Inc. v. St. Paul Fire & Marine Ins. Co., 2009 MT 123, ¶ 13, 350 Mont.

184, 206 P.3d 919. Summary judgment is proper only when there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. Plum Creek

Mktg. v. Am. Econ. Ins. Co., 2009 MT 264, ¶ 21, 352 Mont. 56, 214 P.3d 1238.

¶8     One is subject to liability to another for trespass, regardless of whether he or she

causes actual harm or damage to any legally protected interest of the other, if he or she

obstructs the other’s right to the exclusive possession of that property.               Renz v.

Everett-Martin, 2019 MT 251, ¶ 14, 397 Mont. 398, 450 P.3d 892.                       Colombe’s

manufactured home remains on the property. Therefore, whether Colombe committed

trespass rests on whether Maher had a legal right to exclusively possess the property.

Colombe argues that Maher originally agreed to quitclaim the property in question back

to her such that she is legally entitled to possession of the property in question.

¶9     In Montana, contracts involving the sale of real property, the sale of an interest in

real property, or a lease of real property for a period longer than one year must be in

writing and subscribed by the party sought to be charged in order to satisfy the statute of

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frauds. Sections 28-2-903(1)(d), 70-20-101, 30-11-111, MCA; Hinebauch v. McRae,

2011 MT 270, ¶ 21, 362 Mont. 358, 264 P.3d 1098. Colombe did not produce any

writing to indicate Maher agreed to transfer the property back to her after she quitclaimed

the remaining property in the Johnson Contract to him in 2005. Thus, Colombe did not

provide any evidence demonstrating that she had a legal right to remain on the property.

There was no dispute as to any material fact and the District Court did not err in

determining Maher was entitled to judgment as a matter of law on his trespass and

possession claims.

¶10    Colombe also argues that the District Court erred in granting summary judgment

for Maher on her breach of contract and fraud claims. The statute of limitations for

claims based upon an oral agreement is limited to five years. Section 27-2-202(2), MCA.

A breach of contract action accrues at the time of breach, no matter when a party suffers

damages. Textana, Inc. v. Klabzuba Oil & Gas, 2009 MT 401, ¶ 35, 353 Mont. 442, 222

P.3d 580. The statute of limitations for a claim of fraud is two years. Section 27-2-203,

MCA. Generally, an action for fraud accrues once it occurs, unless the facts forming the

basis for the allegation are concealed, in which case the claim accrues once the aggrieved

party discovers facts constituting the fraud. Christian v. Atl. Richfield Co., 2015 MT 255,

¶ 61, 380 Mont. 495, 358 P.3d 131.

¶11    Colombe admits that she knew no later than February 2011 that Maher would not

transfer the Johnson Contract property back to her. Accordingly, Colombe was required

to file her claim for oral breach of contract by February 2016. Colombe did not file a

counterclaim until 2018. Her claim for breach of contract was barred by the statute of

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limitations. Colombe also alleged that Maher committed fraud in February 2005, when

Maher purportedly told her that he would later transfer the property back to her. In 2011,

when Maher refused to transfer the property, she was on notice that he allegedly

committed fraud. Colombe had until 2013 to file this claim. Because she did not

counterclaim until 2018, Colombe’s fraud claim was also time barred. The District Court

did not err in granting summary judgment to Maher on Colombe’s breach of contract and

fraud claims.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶13    Affirmed.


                                                 /S/ MIKE McGRATH


We Concur:

/S/ JIM RICE
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ INGRID GUSTAFSON




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