NO. 94-596

IN THE SUPREME COURT OF THE STATE OF MONTANA

BUTTE-SILVER BOW, a government entity,

Defendant and Respondent.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Brian Tierney, Attorney at Law, Butte, Montana

For Respondent:

William M. O'Leary, Corette, Pohlman, Allen,

Black & Carlson, Butte, Montana

Filed:

Submitted on Briefs: June 8, 1995

Decided: July 17, 1995
Chief Justice J. A. Turnage delivered the Opinion of the Court.

The District Court for the Second Judicial District, Silver

Bow County, granted summary judgment for Butte-Silver BOW in this

tort action. Arthur W. Schmidt appeals. We affirm.

The issues are whether the District Judge erred by not

recusing himself, by granting Butte-Silver Bow's motion for summary

judgment, and by denying.Schmidt's motion to amend his complaint.

Schmidt owns real property in Butte, Montana, which is

bordered on one side by a dedicated alley. The alley separates

Schmidt's property from property owned by Leipheimer Ford Sales

Company (Leipheimer) Schmidt rents his property for use as a

horse pasture and has access to the property other than via the

alley.

In 1966, the City Council of the City of Butte directed

Leipheimer to make the alley suitable for public travel. In 1976

Schmidt asked the City of Butte to perform repairs and maintenance

on the alley. The City rejected Schmidt's request.

In April 1978, Schmidt filed a complaint against Leipheimer,

alleging that its construction of a building on its property had

resulted in a change of grade of the alley which caused drain

waters and other material to flow onto his property. That action

was settled in 1979 and dismissed with prejudice.

Schmidt filed the present action in 1992. He alleges nuisance

and negligence on the part of Butte-Silver Bow for failing to

maintain the alley. In September 1994, Schmidt filed a motion to

amend, asking leave to set forth an additional cause of action for

2
breach of the implied covenant of good faith and fair dealing.

In November 1994, the District Court granted Butte-Silver

Bow’s motion for summary judgment. The court ruled that the

applicable statute of limitations was three years and that the

statute began to run no later than 1979. It ruled that Schmidt's

own admissions established that he knew the facts constituting his

cause of action in 1979.

Schmidt's arguments on appeal are not persuasive. He has not

set forth facts which would require the District Judge to recuse

himself absent a motion to disqualify. Although Schmidt now claims

that this action is based on a new building constructed on

Leipheimer's property in 1989, he has admitted by deposition that

there had been no change in the alley since 1979, when it was

graded so that the water ran off onto his land. His claims are

thus time-barred under § 27-2-204, MCA. The proposed claim of

breach of the covenant of good faith and fair dealing is also timebarred, under the same statute.

We hold that the District Court did not err on any of the

grounds alleged in this appeal.

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

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to State Reporter Publishing Company an hing Company.
we concur:
bllowing certified order was sent by United States mail, prepaid, to the

July 17, 1995

CERTIFICATE OF SERVICE

I hereby certify that the fi

following named:

J. Brian Tiemey

Attorney at Law

1117 W. Broadway

Butte, MT 59701

William M. O’Leary

CORETTE POHLMAN ALLEN BLACK & CARLSON

P.O. BOX 509

Butte, MT 59703

ED SMITH

CLERK OF THE SUPREME

STATE OF MONTANA

COURT

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