No. 87-146 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DALE SCHAFFER, as the Personal 

Representative of the Estate of 

Charles A. Hansen, MICHAEL J. 

HANSEN, GARY A. HANSEN and MARY 

ELLEN CHEFFMORE , 

Plaintiffs and Appel.lants, 

CHAMPION HOME BUILDERS COMPANY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Knight, Dahood, McLean & Everett; Edward G. Beaudette, 

Anaconda, Montana 

For Respondent : 

Poore, Roth & Robinson; John P. Davis, Butte, Montana 

\ji a .2: 2 7 

Filed: 

Submitted on Briefs: Oct. 16, 1987 

Decided: December 31, 1987 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Plaintiffs appeal the summary judgment of the Third 

Judicial District, Powell County. The judgment dismissed 

plaintiffs' wrongful death and survival complaint which was 

not filed until one day after the statute of limitations had 

expired. We affirm. 

The parties present three issues for our review: 

1. Did the District Court abuse its discretion when it 

dismissed plaintiffs' wrongful death and survival actions? 

2. Did the District Court abuse its discretion when it 

denied relief from judgment under Rule 60 (b) (I), M.R.Civ.P., 

for mistake, inadvertence, surprise or excusable neglect? 

3. Did defendant Champion waive the affirmative defense of statute of limitations? 

Charles Hansen was a professional painter. He had a 

family history of emphysema and asthma, and a personal history of smoking. In May 1977, Hansen and his wife moved into a 

new mobile home they had purchased from Gold Star Homes. The 

mobile home was manufactured by Champion Home Builders Company (Champion). Throughout 1978, Hansen was treated for 

emphysema and chronic obstructive pulmonary disease, as shown 

by an increased chest diameter resulting from long-term 

obstruction of air flow. He also displayed marked bronchialreactions to paint fumes. During multiple visits to his 

treating physician in 1978, Hansen never mentioned the onset 

of any breathing problems in his mobile home. Chest X-rays 

taken on January 6, 1978, and again on August 1, 1978, revealed no significant changes in Hansen's lung condition. 

However, by 1979 Hansen's health had deteriorated. In 

June 1979, he was diagnosed as having congestive heart failure. He was also repeatedly treated for acute bronchial 

asthma. Hansen thought that formaldehyde gas in the mobile 
home was causing his asthma. He moved out of the home in 

July 1979. 

By January 1980, Hansen was bedridden and on an oxygen 

breather. He died of acute bronchial spasm and respiratory 

failure on February 27, 1980, at age fifty-seven. His autopsy revealed scarred lungs, narrowed lumens of the bronchi, 

and moderate-to-severe arteriosclerosis. 

Plaintiff Schaffer is the personal representative of 

Hansen's estate. Plaintiffs Michael J. Hansen, Gary A. 

Hansen and Mary Ellen Cheffmore are Hansen's children and 

heirs. They sought a survival and wrongful death action 

against Gold Star and Champion. Plaintiffs claimed that 

Hansen's condition was caused by formaldehyde gas released 

from the particle board and plywood in the mobile home. 

Plaintiffs requested recovery under the theories of negligence, misrepresentation, breach of implied warranty and 

strict liability. 

Plaintiffs state that their complaint was mailed from 

Anaconda, Montana, to Deer Lodge, Montana, on February 23, 

1983. However, the complaint was not filed until March 1, 

1983. 

On November 19, 1986, Champion moved for sununary judgment on the grounds that plaintiffs' claims were barred by 

the three-year tort statute of limitations. The applicable 

statute of limitations for this action is § 27-2-204(2), MCA, 

which states: 

The period prescribed for the commencement of an action to recover damages for 

the death of one caused by the wrongful 

act or neglect of another is within 3 

years. 

Three years from the date of Hansen's death fell on Sunday, 

February 27, 1983. Therefore, the limitation period was 
extended to the next working day. The period expired on 

Monday, February 28, 1983. 

In February 1987, the District Court entered separate 

summary judgments in favor of Champion and Gold Star. The 

plaintiffs did not appeal the Gold Star summary judgment. 

Gold Star then filed a motion with this Court to dismiss 

plaintiffs' appeal as to Gold Star. This Court granted Gold 

Star's motion by order on July 23, 1987. Consequently, 

Champion is the sole respondent to this appeal. 

Issue 1. Dismissal of complaint. 

In its motion for summary judgment, Champion contended 

that plaintiffs' claim was barred by the statute of limitations. The District Court granted Champion's motion and 

dismissed plaintiffs' claim with prejudice. Plaintiffs now 

contend that mailing the complaint to the clerk of court 

substantially met the deadline imposed by the three-year 

statute of limitations. 

On appellate review, we will uphold the summary judgment if there is no genuine issue of material fact and the 

evidence shows the moving party is entitled to judgment as a 

matter of law. Voegele v. Estate of Schock (Mont. 19871, - 

P.2d , 44 St.Rep. 1950, 1953; Rule 56 (c) , M.R.Civ.P. 

In analyzing this issue, we note that "[A] civil action 

is cornn~enced by filing a complaint with the court." Rule 3, 

M.R.Civ.P. "Filing" is the operative verb. "Filing" is 

defined in Rule 5 (e) , M. P.. Civ. P. : "The filing of pleadings 

and other papers with the court as required by these rules 

shall be made by filing them -- with the clerk of the court 

. . . " The words "filing them with" are not the equivalent 

of "mailing them to." Unlike service by mail, which is 

complete on the date of mailing, filing by mail is not complete until the pleading is placed in the custody of the 
clerk of court. Plaintiffs presented no evidence that the 

complaint was in the clerk's custody prior to March 1, 1983. 

The complaint was placed in the mail three working days 

prior to the expiration of the statute of limitation. The 

complaint was mailed from Anaconda, which is only twenty-five 

miles from Deer Lodge. Plaintiffs reasonably assumed that a 

letter placed in the mail on Wednesday would arrive by Monday. However, the burden of vigilance was on plaintiffs to 

monitor the timely delivery and filing of the complaint. 

The statute of limitations is explicit. By the letter 

of the law, the late filing was fatal to plaintiffs' claim. 

We will not resurrect a complaint which was not properly 

brought before the court. We hold that the District Court 

properly dismissed plantiffs' claim. 

Issue 2. Relief from judgment under Rule 60 (b) (1). 

Following summary judgment, plaintiffs moved for relief 

under Rule 60(b), M.R.Civ.P., which states: 

On motion and upon such terms as are 

just, the court may relieve a party or 

his legal representative from a final 

judgment, order, or proceeding for the 

following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; 

... 

The District Court did not respond to plaintiffs' 

motion. When a court does not rule upon a Rule 60(b) motion 

within forty-five days after it is filed, the motion shall be 

deemed denied. Rule 60 (c) , M.R.Civ.P. 

The statute of limitations does not discriminate between the just and unjust claim. The statute does represent 

legislative and public policy controlling the rights of 

potential litigants. In balancing these rights, the legisla- 
ture placed the fulcrum precisely at three years--no more, no 

less. 

A late filing is not a timely filing. Under Rule 

60 (b) , the trial court does not have the judicial discretion 

to alter, change or lessen the statutory limits for the 

commencement of actions. We hold that the Rule 60(b) (1) 

motion was properly denied. 

Issue 3. Waiver of affirmative defense. 

Plaintiffs contend that Champion first raised the 

statute of limitations defense in its motion for summary 

judgment, and, therefore, Champion waived an affirmative 

defense which should have been raised in its answer. 

Plaintiffs spent their entire brief in opposition to 

motion for summary judgment arguing the merits of the applicable statute of limitations. Plaintiffs never raised the 

waiver issue, although the lower court was the proper forum 

to do so. As we have repeatedly held, we will not consider 

an issue raised for the first time on appeal. Rozel Corp. v. 

Dept. of Pub. Service Reg. (Mont. 1.9871, 735 P.2d 282, 286, 

We affirm the District Court. , 

I 

-- 

Chief Justice 

We concur: 

,