NO. 96-180 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

HAROLD SORENSON, d/b/a SORENSON FARMS, 

Plaintiff, Appellant 

and Cross-Respondent, 

v. 

MASSEY-FERGUSON, INC., a nonresident ?(]\ 2 6 !%@ 

corporation, 

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Defendant, Respondent L~~R~, OF supkc. £ c eg* 

and Cross-Appellant. SfiTE @F MI?&~?A%% 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Joe L. Hegel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Houtz, Forsyth, Montana 

For Respondent: 

Kathleen H. Richardson, Havre, Montana 

Filed: 

Submitted on Briefs: October 24, 1996 

Decided: November 26, 1996 

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Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Harold Sorenson brought this action to recover damages from 

his purchase of a defective Massey-Ferguson combine. The District 

Court for the Sixteenth Judicial District, Rosebud County, granted 

the motion of Massey-Ferguson, Inc., to dismiss Sorenson's 

complaint pursuant to Rule 12(b) (6), M.R.Civ.P. We affirm. 

The sole issue Sorenson raises on appeal is whether the 

doctrine of equitable tolling should have been invoked to toll the 

statutes of limitation on his claims. Massey-Ferguson, Inc., filed 

a cross-appeal in which it argues that this appeal was taken 

without substantial or reasonable grounds, meriting an award of 

damages under Rule 32, M.R.App.P. 

For purposes of ruling on the Rule 12 (b) (6) motion, the 

District Court accepted as true the allegations pled in Sorenson's 

complaint. In September 1984, Sorenson purchased two MasseyFerguson combines from an implement dealer in Glasgow, Montana. 

The combines were represented as new, but were actually 1982 

models. Sorenson obtained two-year warranties on the combines. 

One of the combines performed well, but the other combine 

repeatedly broke down, beginning almost immediately. Over the 

years, Sorenson sought warranty coverage for repairs, but he 

usually had to pay for them himself. In 1993, an improperly cast 

transmission was identified as the source of the repeated problems 

with the combine, and was repaired. 

In February 1995, Sorenson filed his complaint claiming breach 

of warranty, failure of consideration and breach of contract, 
mistake, negligence, and unfair trade practices. Massey-Ferguson 

moved to dismiss pursuant to Rule 12 (b) (6) , M.R.Civ. P., for failure 

to state a claim upon which relief can be granted. The District 

Court granted the motion as to all five counts of the complaint. 

The court's ruling was based upon the running of the applicable 

statutes of limitation on the first four claims and, as to the 

claim of unfair trade practices, the unavailability of that remedy 

for equipment purchased for business purposes. 

Issue 1 

Should the doctrine of equitable tolling have been invoked to 

toll the statutes of limitation? 

The applicable statutes of limitation for the claims dismissed 

due to passage of time are: four years for the breach of warranty 

claim and the claim of failure of consideration and breach of 

contract, under § 30-2-725, MCA; two years after discovery of the 

facts constituting a claim of mutual mistake, under § 27-2-203, MCA 

(the complaint alleged under this count that the combine was 

believed to be new and in proper working order when Sorenson 

purchased it); and three years on the negligence claim under 5 27- 

2-204, MCA. Although Sorenson became aware of defects in the 

combine shortly after purchasing it, he did not file his complaint 

in District Court until over ten years later. 

The doctrine of equitable tolling arrests the running of 

statutes of limitation while the claimant reasonably and in good 

faith pursues one of several possible legal remedies. Harrison v. 

Chance (IggO), 244 Mont. 215, 797 P.2d 200. The claimant must meet 
three criteria: (1) timely notice to the defendant within the 

applicable statute of limitation in filing the first claim; (2) 

lack of prejudice to the defendant in gathering evidence to defend 

against the second claim; and (3) good faith and reasonable conduct 

by the claimant in filing the second claim. Harrison, 797 P.2d at 

208. 

The District Court ruled that Sorenson's requests to MasseyFerguson to repair the combine under warranty provisions did not 

constitute "'pursuit of a legal remedy' as is contemplated by the 

cases discussing the doctrine of 'equitable tolling.'" 

Sorenson argues that the statutes of limitation should be 

equitably tolled in this case because he pursued his remedy of 

seeking warranty coverage from Massey-Ferguson during the warranty 

period and before any statute of limitation expired. He argues 

that the definition of "remedy" in the Uniform Commercial Code at 

5 30-1-201 (34), MCA, should be used here. Section 30-1-201 (341, 

MCA, defines "remedy" as any remedial right to which an aggrieved 

party is entitled with or without resort to a tribunal. 

Sorensonl s argument is off the mark. The UCC definition which 

he promotes defines "remedy, " not "legal remedies. 'I "Legal 

remedies" is not defined in Montana statutes. 

The term "legal remedies" has been interpreted in Montana case 

law. In Hash v. U.S. West Communications Services (1994), 268 

Mont. 326, 886 P.2d 442, Hash claimed that she had been wrongfully 

discharged from employment with U.S. West. The district court 
dismissed her claim because the applicable statute of limitation 

had expired. 

Hash argued on appeal that the statute of limitation had been 

equitably tolled while she filed a complaint before the Montana 

Human Rights Commission. This Court ruled that the doctrine of 

equitable tolling did not apply. We stated that Hash did not have 

more than one legal remedy available to her. Instead, it was first 

her obligation to timely file her complaint before the Human Rights 

Commission, as a prerequisite to her filing in district court. 

While she also had the right to pursue an intra-company remedy, she 

was required to do so within the context of the time limitations 

imposed for filing before the Human Rights Commission. Hash, 886 

P.2d at 446. 

Implicit in Hash is that the term "legal remedies" does not 

include self-help measures such as informal efforts seeking intracompany remedies or warranty coverage. If it did, equitable 

tolling would virtually eradicate statutes of limitation. The 

Montana cases applying equitable tolling have dealt with "legal 

remedies" of filing court or administrative proceedings seeking to 

enforce the plaintiff's legal rights. Chance v. Harrison (1995), 

272 Mont. 52, 899 P.2d 537 (statute of limitation for filing a 

claim before the Montana Human Rights Commission was equitably 

tolled by the filing of a district court action for sexual 

harassment) ; Nicholson v. Cooney (l994), 265 Mont. 406, 877 P. 2d 

486 (statute of limitation for filing a complaint of constitutional 
violations in a referendum was equitably tolled by the filing of a 

petition for declaratory judgment as to the same subject). 

The case at bar is the first action or proceeding, administrative or judicial, which Sorenson has filed to enforce his legal 

rights. We hold that Sorenson's self-help pursuit of his rights 

under warranty was not a "legal remedy" available to him for 

purposes of the doctrine of equitable tolling. While he may have 

had rights under warranty, he was required to pursue those rights 

within the context of the time limitations imposed for filing his 

legal claims. We hold that the District Court did not err in 

dismissing Sorenson's claims based on the lapsing of the applicable 

statutes of limitation. 

Issue 2 

Is an award of damages merited under Rule 32, M.R.App.P.? 

Rule 32, M.R.App.P., provides: 

If the supreme court is satisfied from the record and the 

presentation of the appeal in a civil case that the same 

was taken without substantial or reasonable grounds, such 

damages may be assessed on determination thereof as under 

the circumstances are deemed proper. 

Massey-Ferguson asserts that damages are justified in this case 

because the appeal is not warranted by existing law as expressed in 

Hash, and Sorenson has not made a good faith argument for a change 

in existing law. 

While Sorenson's argument for equitable tolling is unconvincing, there is no evidence that it was not made in good faith. 

Under the circumstances here presented, we are not persuaded that 

this appeal was taken without substantial or reasonable grounds, 
thereby justifying the assessment of damages. The request for 

damages under Rule 32, M.R.App.P., is denied. 

A£ £ irmed . 

We concur: