No. 92-564 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

ALEX B. MOGAN, PAUL B. MOGAN, MARLIN R. MOGAN, EDWIN MOGAN, JOHN W. MOGAN, JOHN GILBERT MOGAN, DAVID C. MOGAN, d/b/a MOGAN & SONS, Plaintiff and Appellants,

CARGILL, INC.

### , and AL STEARNBERG, Defendants and Respondents.

APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Valley, The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD: For Appellants: David C. Mogan, Lewistown,Montana, pro se For Respondents: Robert L. Sterup, Dorsey & Whitney, Billings, Montana

Filed: Submitted on Briefs: June 17, 1993 Decided: JU~Y 20, 1993Justice Fred J. Weber delivered the Opinion of the Court. David C. Mogan appeals the Order of the District Court of the SeventeenthJudicial District,ValleyCounty, whichgranted summary judgmentto thedefendant on thebasis of the statute of limitation for contracts for the sale of goods. We affirm. The sole issue on appeal iswhether the DistrictCourtapplied the correct statute of limitation in this action for breach of a contract for the sale of grain. Alex B. Mogan, Paul B. Mogan, Marlin R. Mogan, Edwin Mogan, JohnW. Mogan, John Gilbert Moqan, and David C. Mogan, d/b/a Mogan & Sons (Mogans) filed a complaint on May 21, 1991, alleging that Cargill, Inc. and A1 Sternberghad breached a contract to purchase 85,000bushels of wheat at $3.75 per bushel. Mogans claimed that A1 Sternberg, an employee of Cargill, Inc., agreed to purchase the wheat on May 23, 1986. On May 23, 1986, Sternberg purchased 50,000bushels of wheat from Mogans pursuant to an agreement with Alex Mogan, father of appellant David C. Mogan. A written agreement was executed for this transaction. The record indicates that this was the normal practice between the parties for grain sales. Later in the afternoonof May 23, 1986,AlexMegan again contacted Sternberg and offered to sell an additional 85,000bushels of wheat for the same price. Sternberg advised Alex Mogan that he could not purchase that amount so close to 5:00 p.m. without consulting with Cargill, Inc.'s area merchant. Alex Mogan contacted Sternberg again on either May 25th or 226th to inquire whether the offer was accepted by Cargill, Inc. Sternberg advised Mogan that Cargill, Inc. would not purchase the additional 85,000 bushels of grain for that price. Subsequently,

on May 28, 1986 and June 13, 1985, Alex Mogan executed written contracts for other grain sales. On July 5, 1986, David C. Mogan wrote a letter to Cargill, Inc. demanding compensation for breach of a contract to purchase 85,000 bushels, claiming the grain was sold on May 23, 1986. Cargill, Inc. responded to this letter on July 28, 1986,advising David C,Mogan that it was Cargill, Inc.'s position that there was
no contract. Although Mogans were represented by counsel in this action before the District Court, they are not so represented on appeal. David C. Mogan, acting "in propria persona," is not an attorney licensed to practice law in Montana. Therefore, he may only represent himself and is the only appellant in this action. Did the District Court err in determining that the four-year statute of limitation for contracts for the sale of goods barred this action? The contract in issue isan alleged oral contract for the sale of 85,000bushels of wheat. The District Court determined that 5 30-2-725, MCA, sets forth the limitationperiod for an action such

as this. That section provides in pertinent part: statute of limitations in contracts for sale. (1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. 

# . . 

# .Section 30-2-725(1), MCA. Appellant contends that § 27-2-202(2), MCA, provides the appropriateperiod tobring an action for an oral contract for the sale ~f grain, Section 27-2-202(2] provides: Actions base& on contract or other obligation. 

# . . .

(2) 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. Appellant contends that 5 27-2-202!2), MCA, is the more specific statute because of the words "not founded on an instrument in writing." We do not agree. Summary judgment is properwhen thereareno genuine issuesof material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Where the issues raised on appeal are questions of law, this Court will affirm the District Court's order granting summary judgment if the movants were entitled to judgment as a matter of law. Evans v. Montana Nattl Guard (l986), 223 Mont. 482, 726 P.2d 1160. The standard of review applied by this Court is the same as that initially used by the District Court. Kelly v. Widner (1989), 236 Mont. 523, 771 P.2d 142. In this case, the District Court wrote a clear opinion analyzing $5 27-2-202(2) and 30-2-725(1). We agree with that analysis. Section 27-2-202(2), MCA, is a general statute of limitation covering actions on contracts. Section 27-2-105, MCA, provides that civil actions must be commenced within the timeprescribed in part 2 "except when another statute specifically provides a different limitation." Section 30-2-725(I), MCA, specifically provides for a different limitation--four years--for contracts for the sale of goods TheOfficial Comment to g 2-725 of theUniform Commercial Code states: 

### Purposes: To introduce a uniform statute of limitations for sales contracts, thus eliminatingthe jurisdictional variationsand providing needed relief forconcerns doing business on a nationwide scale whose contracts have heretofore been governed by several different periods of limitation depending upon the state in which the transactionoccurred. This~rticle takessalescontracts out of the general laws limiting the time for commencing contractual actionsand selects a fouryearperiod as the most appropriate to modern business practice. This is within the normal commercial record keeping period. Contracts for the sale of wheat come within the definition of "goods" and are governed by the provisions of the Uniform Commercial Code for saleswhich has been adopted inMontana and is set forth in gg 30-2-101through 30-2-725,MCA. See,specifically, g 30-2-103, MCA, and 30-2-105(1), MCA. We conclude the appropriate statute of limitation to apply to this proceeding concerning an alleged contract for the sale of wheat is the four-yearperiod provided for in g 30-2-725(1), MCA. Appellant's claim accrued no later than May 26, 1986. Because Mogans' complaint was filed on May 21, 1991, more than four years after the claim accrued, it is barred by the statute of limitation set forth in 6 30-2-725(1), MCA. We hold the ~istrict Court properly dismissed Mogans' claimbecause it was barred by the four-year statute of limitation for sales contracts. Cargill, Inc. has asked this Court to award it reasonable attorney fees and costs incurred in responding ta "this frivolous appeal." We note that David C. Mogan has presented similarly imperceptive arguments in other casespreviouslybefore thisCourt. See e.q., Credit Associates, Inc, v. David C. Mogan (1992)

### , 255 Mont. 307, 843 P.2d 321 (district court properly denied counterclaim and third-party complaint as being frivolous); and Mogan Y, Montana Pub*Sen.CemE1n,No. 93-159, (Mont. July 1393),



### - P.2d 

### - (affirmed district court dismissal of appeal for failure to state a claim upon which relief could be granted). In Huffinev. Boylan (1989), 239 Mont. 515, 517, 782 P.2d 77, 78,we stated: While this Court accommodates pro se litigants when possible, Huffine is no stranger to litigation. He has been involved in thirteen District Court cases and has attempted several appeals. David C. Mogan 

### is also 

### no stranger to litigation. In each of the

cases listed above, David C. Mogan represented himself. In each case, he filed numerous motions with the district court or the administrative agency. David C. Mogan also appealed in Mogan v. City of Harlem (l989), 238 Mont. 1, 775 P.2d 686, in which this Court affirmed the district court and termed Mogan's arguments "meritless." Sanctionsareproperly awarded if an attorneyor a party fails to abide by the mandate of Rule 11, M.R.Civ.P., which states inpertinent part:



# . . . The signature of an attorney or party constitutes a certificateby the signer that the signerhas read the pleading, motion, or other paper 

# . . . that to the best of the signer's knowledge, information and belief formed after reasonable inquiry it iswell grounded in fact and iswarranted by existing lawor a good faithargument for theextension,modification,orreversalof existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation

# . .. . If a pleading, motion, or otherpaper is signed in violation of this rule, the Court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including reasonable attorney's fee. David C. Moganlsappeal is not warranted by existing lawand hehas not made a good faith argument for a change in the existing law. The standard for imposing sanctions is that of reasonableness under the circumstances. Brownv. Jensen (1988)

### , 231Mont. 340,350, 753 P.2d 870, 876. We conclude David C. Mogan's appeal was taken without substantial or reasonable grounds in these circumstances. Therefore, accordingtoRule 32,M.R.App.P.p thisCourtorders that sanctionsbe imposed upon David C. Mogan in the amount of $500.00 to be paid to Cargill, Inc. to help defray litigation costs. Affirmed.

We Concur:July21, 1993 CERTIFICATEOFSERVICE I herebycertifythatthefollowingorderwassentbyUnitedStatesmail,prepaid,to thefollowing named:

DavidC.Mogan P.O.Box21 Lewistown,MT 59457

RobertL.Sterup Dorsey&Whitney P.O. Box7188 Billings,MT 59103

EDSMITH CLERKOFTHE SUPREMECOURT STATEOF-MONTANA