DA 11
- 0521 IN THE SUPREME COURT OF THE STATE OF MONTANA 20 1 2MT 48

SCOTTIE J. PEDERSON and DAWN PEDERSON, individuals, Plaintiffs and Appellants,
v. ROCKY MOUNTAIN BANK, and JOHN DOES 1
- X, Defendants and Appellees.

APP EAL FROM: District Court of the Eleventh Judicial District ,

In and For the County of Flathead , Cause No. DV 11
- 284 (A) Honorable Ted O. Lympus , Presiding Judge COUNSEL OF RECORD:

For Appellant s : Susan Callaghan , Callaghan and Gernant, P.C., Butte, Montana For Appellee : Burt N
. Hurwitz ; Kenneth S. Frazier; Felt, Martin, Frazier & Weldon, P.C., Billings, Montana Submitted on Briefs: January 25, 2012 Decided: March 6, 2012

Filed:

___________________________________ _______ Clerk March 6 20122

Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Scottie J. Pederson and Dawn Pederson (Pedersons) appeal from an order of the Eleventh Judicial District Court, Flathead County, dismissing their claims against Rocky Mountain Bank (Bank). We affirm. **BACKGROUND** ¶2 In May 2007, the Pedersons and the Bank entered into a six
- month construction loan ag reement(Construction Loan) pursuant to which the Bank agreed to lend the Pedersons $202,500 for the purpose of purchasing land and placing a manufactured home on the land. The Bank also conditionally approved the Pedersons for a 30
- year mortgage at a 6% interest rate. ¶3 In September 2007, the Pedersons finished construction on the property and tried to close on the conditionally approved mortg ag e. The Bank refused to close because Scottie Pederson’s credit had markedly deteriorated since May 2007
. The parties then began negotiating an alternative financing mechanism to enable the Pedersons to pay off the C onstruction L oan . On November 4, 2 007 , the Construction Loan matured and the Bank did not extend it . I

nstead, the Bank

beg an reporting to the credit ag encies that Scottie was delinquent on the Construction L oan. ¶4 On March 10, 2008, t he Pedersons and the Bank agreed to finance the Constru ction Loan throughthree short term loans totaling $217,000 at a 7% interest rate . These loans included: (1) a $170,000 loan , payable in five years with a possibility of refinancing; (2) a3

$37,000 “clean up” commercial loan with a sixmonth term; and (3) a $10,000 line of credit. The Pedersons made imperfect payments on these loans through 2008 and 2009. ¶5 In Au gu st 2009, the Pedersons tried to refinance their loans but were unable to do so. At this point, the Pedersons allegedly discovered Scottie’s cred it score had markedly deteriorated, the Bank had yet to release the deed of trust securing the Construction Loan, the manufactured home had yet to be detitled, and the Bank had not advised the Pedersons of other available financing options to pay off the C onstruction Loan. ¶6 As a result of these discoveries, the Pedersons brought suit against the Bank asserting claims for negligence, constructive fraud, negligent misrepresentation, a violation of the C onsumer P rotection Act, common law bad faith , and punitive damages. The Pederson s’ attorney si gned the c omplaint on March 10, 2011, but failed to file the complaint until March 14, 2011. After it was served with the complaint, the Bank filed a Rule1 2(b)(6) , M. R. Civ. P., motion to dismiss asserting the statutes of limitation shad run on all of the Pedersons’ claims. The D istrict C ourt granted the Bank’s motion anddismissed the Pedersons’ claims ag ainst the Bank . The Pedersons raise one issue on appeal : ¶7 Did the District Court err when it granted the Bank’ s motion to dismiss because the statutes of limitations had run? **STANDARD OF REVIEW** ¶8 We review de novo a district court’s ruling on a Rule 12(b)(6), M. R. Civ. P., motion to dismiss. Spencer v. Beck, 2010 MT 256, ¶ 7, 358 Mont. 295, 245 P.3d 21. In our re view, we look only at the allegations in the complaint. See Plouffe v. State , 2003 MT 62, ¶ 13, 3144

Mont. 413, 66 P.3d 316. We will affirm a district court’s dismissal of a complaint for failure to state a claim only if it appears beyond doubt that the p laintiff can prove no set of facts in support of his claim that would entitle him to relief. Spencer , ¶ 7. In considering a Rule 12(b)(6) , M. R. Civ. P., motion, the complaint is construed in the light most favorable to the plaintiff, and all allegationsof fact are taken as true. Spencer, ¶ 1 0
. **DISCUSSION** ¶9 An action generally is barred if it is not commenced within the appropriate statute of limitations. Weaver v. Advanced Refrigeration , 2011 MT 174, ¶ 17, 361 Mont. 233, 257 P.3d 378. An action is co mmenced when the complaint is filed. Section 27
- 2
- 102 (1) (b), MCA. ¶10 The applicable statutes of limitation sf or the causes of action in the Pedersons’ complaint are as follows: three years for neg ligence claims, including neg ligent misrepresentation, Cecho vic v. Hardin & Assocs. , 273 Mont. 104, 119, 902 P.2d 520, 529 (1995) (citing § 27
- 2
- 204(1), MCA); three years for a claim of common law bad faith, Brewington v. Employers Fire Ins. Co. , 1999 MT 312, ¶¶ 23
- 24, 297 Mont. 243, 992 P.2d 237; and two years for

t he claims of constructive fraud and a v iolation of the Consumer Protection Act, Osterman v. Sears, Roebuck & Co. , 2003 MT 327, ¶¶ 20, 24, 318 Mont. 342, 80 P.3d 435. ¶11 Our statute of limitations analysis is governed by § 27
- 2
- 102, MCA, which provides in p ertinent part :5

**27 -**  **2 -**  **102. When action commenced.**  (1) For the purposes of statutes relating to the time within which an action must be commenced: (a) a claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the ri ght to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action; (b) an action is commenced when the complaint is filed. (2) U nless otherwise prov

ided by statute, the period of l imitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation. (3) The period of limitat ion does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if: (a) the facts co nstituting the claim are by their nature concealed or self
concealing; or (b) before, during, or after the act causing the injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause. Sect ion 27
- 2
- 102 (2), MCA, is commonly ref e rred to as the accrual rule, and § 27
-2
- 102( 3 ), MCA, is commonly referred to as the discovery rule. ¶12 The Pedersons assert the D istrict C ourt did not properly apply the accrual rule. The Pedersons signed the loan agreements on March 10, 2008, but argue the claim did not accrue until March 14, 2008. The Pedersons cite to the fact that their loans were subject to a three day right of rescission, and, therefore, the Bank was not obligated to disburse the loans until March 14, 2008. Due to this fact, the Pedersons believe the damages element of their claim was not met, and their claim did not accrue until March 14, 2008, at the earliest. ¶13 The Pedersons’ arg ument merits little deference because it is unsupported by the allegations in their complaint. Nowhere do the Pedersons allege the agreements were not6

binding until March 14, 2008, or that the funds were not disbursed until March 14, 2008. For this reason alone, we find the claim accrued when the Pedersons signed the loan documentson March 10, 2008. ¶14 Ev en if we were to accept that the three
- day right of rescission was pled, the Pedersons’ claimswould still fail. Whe n the Pedersons signed the loan ag reements , the Bank was obligatedto provide funds once certain conditions were met and the Pedersons were required to pay back the funds once they were distributed. Thus , we find the element of damages existed at the time the Pedersons signed the loan agreement, March 10, 2008, and not upon the disbursement of funds. ¶15 The Pedersons also argue that the D istrict C ourt erred in not applying the discovery rule to toll the statute so f limitations until August 2009. To support their position, t he Pedersons rely on Blackburn v. Blue Mt. Women’s Clinic , 286 Mont. 60, 79, 951 P.2d 1, 12 (199 7), for the proposition that non
- disclosure of information is, by its very nature, self
concealing. In Blackburn , the plaintiff was advised by a nurse employed by Butte
- Silver Bow County that, even though she was HIV negative, she could give birth to an HIV positive child. Based on this information, the plaintiff went to the Blue Mountain Women’s Clinic in Missoula to obtain an abortion. Prior to her abortion, the plaintiff advised a counselor of her reason for having an abortion, and, according to the p laintiff, she was never advised that it
was impossible for an HIV neg ative mother to give birth to an HIV positive baby. The plaintiff underwent an abortion in 1990, but did not bring suit until 1995, at which point the7

defendant filed a Rule 12(b)(6) mot ion to dismiss because the applicable statutes of limitations had run. Blackburn , 286 Mont. at 65
- 67, 951 P.2d at 4
- 5. ¶16 The d istrict c ourt agreed with the defendant that the statutes of limitation s had run and dismissed the plaintiff’s complaint. Blackbu rn , 286 Mont. at 67, 951 P.2d at 5. On appeal, this Court reversed and concluded that the negligent act was the withholding of accurate medical information , and, inl ight of this fact, noted that “[n] ondisclosure of information is, by its nature, self

- con cealing.” Blackburn , 286 Mont. at 79 , 951 P.2d at 12. ¶17 Based on the facts before us, the holding in Blackburn i s inapposite. A more analogous case is Shiplet v. Fi rst Security Bank of Livingston, Inc. , 234 Mont
. 166 , 762 P.2d 242 (1988) (overruled on ot her grounds by Sacco v. High Country Indep. Press , Inc. , 271 Mont. 209, 896 P.2d 411 (1995)). In Shiplet, First Security Bank represented to the Shiplets that it would loan them money at a rate of 10% for a term of five years. The Shiplets then signed a note containing neither the promised term nor the promised interest rate. This Court held that when the Shiplets signed the note, “They had at that point certainly discovered facts
sufficient to constitute fraud, ”and the statute of limitations had not be en tolled. Shiplet , 234 Mont
. at174, 762 P.2d at 2 47
. ¶18 In light of this Court’s holding in Shiplet , we conclude that the applicable statutes of limitation sshould not have been tolled. The Pedersons knew as early as September 2007 that Scottie’s credit h ad markedly deteriorated, and they would not be able to obtain conventional financing. To prevent losing their home, the Pedersons signed the new loan ag reements whereby

they would receive three loans totaling $217,000 under the specific8

terms of the loanagreements. At that point, the Pedersons knew they would not receive a 30
- year mortgage at a 6% interest rate. ¶19 The Pedersons further argue that we should toll the statutes of limitation sbecause they were unaware of other loan opportunities, and were unaware that the B ank had not released the deed of trust or de
- titled to property until August 2009. H owever, the relationship between a bank and its customer is generally described as that of debtor and creditor, and does not give rise to fiduciary respon sibilities, unless the bank takes on the role of an advisor or an agency relationship exists. McCoy v. First Citizens Bank, 2006 MT 307 , ¶ 30, 335 Mont. 1, 148 P.3d 67 7; See also Klein v. First Edina Natl. Bank, 196 N.W.2d 619, 623 (Minn. 1972) (“[W]hen abank transacts business with a depositor or other customer, it has no special duty to counsel the customer and inform him of every material fact relating to the transaction”). M ere ignorance of the facts will not toll the statute so f limitations. Cartwright v. Equitable Life Assur. Soc y . of the United States , 276 Mont. 1, 15, 914 P.2d 976, 985 (1995). ¶20 The allegations in the Pedersons’ complaint do not demonstrate the existence of a fiduciary relationship. C onsequently, the B ank had no obligation to di sclose every alternative loan that the Pedersons may have obtained. The Pedersons have additionally fa iled to show that itwas not more than mere ignorance that prevented them from discovering the facts earlier than August 2009. Accordingly, on March 10, 2 008, when the Pedersons signed the loan agreements, they had discovered the facts constituting their claims.9 **CONCLUSION** ¶21 The applicable statutes of limitation sbegan to run on March 10, 2008, because the Pedersons ’ claims had accrued and they h ad discovered the facts constituting the claims. B y filing their complaint on March 14, 2011 , more than three years later , the Pedersons failed to commence their action within any of the applicable statutes of limitation s . For th is reason , we affirm the D istrict C ourt’s order dismissing the Pedersons’ claims.

/S/ MICHAEL E WHEAT
We Concur: /S/ BRIAN MORRIS /S/ JIM RICE /S/ JAMES C. NELSON /S/ BETH BAKER