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, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

David C. Mogan appeals the Order of the District Court of the 

Seventeenth Judicial District, Valley County, which granted summary 

judgment to the defendant on the basis of the statute of limitation 

for contracts for the sale of goods. We affirm. 

The sole issue on appeal is whether the District Court applied 

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, 

John W. 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 Sternberg had breached a contract to purchase 

85,000 bushels 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 50,000 bushels 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 

afternoon of May 23, 1986, Alex Megan again contacted Sternberg and 

offered to sell an additional 85,000 bushels 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 

2 
26th 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 is an alleged oral contract for the sale 

of 85,000 bushels of wheat. The District Court determined that 5 

30-2-725, MCA, sets forth the limitation period 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 

appropriate period to bring 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 proper when there are no genuine issues of 

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 time 
prescribed 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 

The Official Comment to g 2-725 of the Uniform Commercial Code 

states: 

Purposes: To introduce a uniform statute of limitations 

for sales contracts, thus eliminating the jurisdictional 

variations and providing needed relief for concerns 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 

transaction occurred. This ~rticle takes sales contracts 

out of the general laws limiting the time for commencing 

contractual actions and selects a four year period 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 sales which has been adopted in Montana and is 

set forth in gg 30-2-101 through 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-year period 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' claim 
because 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 cases previously before this Court. 

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 Huffine v. 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." 

Sanctions are properly awarded if an attorney or a party fails 

to abide by the mandate of Rule 11, M.R.Civ.P., which states in 
pertinent part: 

. . . The signature of an attorney or party constitutes 

a certificate by the signer that the signer has read the 

pleading, motion, or other paper . . . that to the best 

of the signer's knowledge, information and belief formed 

after reasonable inquiry it is well grounded in fact and 

is warranted by existing law or a good faith argument for 

the extension, modification, or reversal of 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 other paper 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. Moganls appeal is not warranted by existing law and he has 

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. Brown v. Jensen (1988) , 231 Mont. 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, according to Rule 32, M.R.App.P.p this Court orders that 

sanctions be 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: 

July 21, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

David C. Mogan 

P.O. Box 21 

Lewistown, MT 59457 

Robert L. Sterup 

Dorsey & Whitney 

P.O. Box 7188 

Billings, MT 59103 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF-MONTANA