NO. 91-169 

IN THE SUPREME COURT OF THE STATE OF 

1991 

JAMES ROUSE, 

Plaintiff and Appellant, 

-VSANACONDA-DEER LODGE COUNTY, and JOSEPH MARTELLI, individually and 

in his capacity as law enforcement officer of Anaconda-Deer Lodge 

County, and EDWARD CUTLER, individually and in his capacity as law 

enforcement officer of Anaconda-Deer Lodge County, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the county of Deer Lodge, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jay F. Lansing: Moses Law Firm, Billings, Montana. 

For Respondent: 

Jon R. Binney; Milodragovich, Dale & Dye, Missoula, 

Montana. 

Filed: 

Submitted on briefs: July 25, 1991 

Decided: September 11, 1991 

I. 

'Clerk 
Justice R. C. McDonough delivered the Opinion of the Court. 

This appeal involves allegations of police brutality. The 

plaintiff James Rouse appeals the order of the Third Judicial 

District Court, Anaconda-Deer Lodge County, granting summary 

judgment to the defendants Anaconda-Deer Lodge County (County) and 

officers Joseph Martelli and Edward Cutler. The court granted the 

defendants' motion on the grounds that the plaintiff's claims were 

barred by the statute of limitations. We reverse and remand the 

case for further proceedings. 

Rouse raises the following issue on appeal: 

Did the District Court err in granting the defendants' motion 

for summary judgment on the grounds that Mr. Rouse's claims were 

barred by the statute of limitations set forth in § 2 7 - 2 - 203, MCA? 

The incidents giving rise to the allegations in Rouse's 

complaint occurred on October 25, 1984. We will not describe the 

details of these allegations at length, as they are not material 

to our determination of the issues on appeal. It is sufficient for 

us to note that Rouse alleges that he was stopped by Officers 

Cutler and Martelli while urinating in a doorway and was brutally 

beaten without justification or cause. After the incident, Rouse 

was charged with misdemeanor attempted assault on Officer Martelli. 

In their amended answer dated April 27, 1990, the defendants raised 

the affirmative defense of the statute of limitations arguing that 

it barred all of Rouse's claims. The County moved the court for 

summary judgment on June 25, 1990. For purposes of this motion, 

Rouse conceded that there was no evidence that Officer Cutler took 

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part in the alleged assault. The court granted the motion on 

January 30, 1991. The court ruled that the defendants were not 

entitled to immunity under 5 2-9-111, MCA, and that § 27-2-204(3), 

MCA, was the applicable statute of limitations and the statute 

barred Rouse's claims. Plaintiff filed this appeal regarding the 

statutory bar of his claims for assault and malicious prosecution. 

He has not appealed the disposition of his claim of failure to 

provide medical treatment. 

I. DEFENDANT COUNTY 

The District Court ruled that Rouse's claims of assault 

against officers Martelli and Cutler were barred by 5 27-2-204(3), 

MCA. Rouse argues that § 27-2-209, MCA, a three year statute of 

limitations concerning liability incurred by a sheriff, coroner, 

or constable, provides the applicable limitation period in this 

case. Rouse also argues that § 27-2-209, MCA, allows a plaintiff 

to file a lawsuit within six months after his claims are rejected 

by a county, and that because the county has yet to reject his 

claims, the six month statute has not begun to run against him. 

Actions against the state and political subdivisions are 

governed by Title 2, Chapter 9, Part 3, MCA. The statutes provide 

in pertinent part: 

2-9-301. Filing of claims against state and 

political subdivisions -- disposition by state agency as 

prerequisite. (1) All claims against the state arising 

under the provisions of parts 1 through 3 of this chapter 

must be presented in writing to the department of 

administration. 

(2) A complaint based on a claim subject to the 

provisions of subsection (1) may not be filed in district 

court unless the claimant has first presented the claim 

to the department of administration and the department 
has finally denied the claim. The department must grant 

or deny the claim in writing sent by certified mail 

within 120 days after the claim is presented to the 

department. The failure of the department to make final 

disposition of a claim within 120 days after it is 

presented to the department must be considered a final 

denial of the claim for purposes of this subsection. Upon 

the department's receipt of the claim, the statute of 

limitations on the claim is tolled for 120 days. The 

provisions of this subsection do not apply to claims that 

may be asserted under Title 25, chapter 20, by third- party complaint, cross-claim, or counterclaim. 

(3) All claims aqainst a uolitical subdivision 

arisins under the urovisions of Darts 1 throuqh 3 shall 

be oresented to and filed with the clerk or secretary of 

the uolitical subdivision. (Emphasis added.) 

Thus, the statutory requirements enacted by the legislature mandate 

a plaintiff asserting a cause of action against a governmental 

entity to first file a claim against that entity before filing an 

action in district court. The purpose of such statutes is the 

furtherance of the public policy to prevent needless litigation and 

to save unnecessary litigation expenses by affording an opportunity 

to amicably adjust and settle all claims before suit is brought. 

See 56 Am.Jur.2d, Municipal Coruorations, 5 686, p. 730 (1971). 

The statutes also provide a limitation period for such claims: 

2-9-302. Time for filing -- limitation of actions. A 

claim against the state or a political subdivision is 

subject to the limitation of actions provided by law. 

In this case, the parties dispute whether Rouse's causes of action 

are governed by a two year or a three year statute of limitation. 

See §§ 27-2-209(1), 27-2-204(1) and (3), MCA. We will discuss the 

applicability of these sections in greater detail with respect to 

the individual defendants later in this opinion. With respect to 

the County, Rouse filed a claim on August 15, 1986, approximately 

22 months after the incident. Thus, regardless of whether a two 

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or three year limitation period applies, Rouse's claim against 

the County was timely filed with the County within two years of the 

incident. The record indicates that no action was taken by the 

County in approving or denying the claim. With respect to causes 

of action filed on a claim against a county political subdivision, 

the statutes provide that "[alctions for claims against a county 

which have been rejected by the county commissioners must be 

commenced within 6 months after the first rejection thereof by such 

board." Section 27-2-209(3), MCA. 

With respect to claims against the state, 5 2-9-301, MCA, set 

forth above, provides that the department of administration must 

grant or deny a claim against the state within 120 days after 

presentation to the department. Expiration of the 120 day period 

with no final disposition of the claim is deemed a denial of the 

claim. The statute's title indicates that disposition of the claim 

by a state agency is a prerequisite to filing an action in district 

court. The statutes do not provide a shortened limitation period 

to file an action on a claim against the state once the claim is 

denied, as is the case with the six month period for actions on 

claims against a county. 

With respect to claims against political subdivisions, the 

statutes do not state that a final disposition of the claim before 

a local tribunal is a prerequisite to filing an action in district 

court. The statutes also do not provide an automatic denial period 

for claims made against a county or political subdivision similar 

to the 120 day period for claims against the state. Here, Rouse's 

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claim against the County was subject to a six month limitation 

period after denial by the appropriate body, but no such denial 

occurred and the statutes do not provide an automatic denial period 

applicable in this case. 

Some jurisdictions have dealt with this problem by holding 

that the plaintiff must file his action within a reasonable time 

after presentation of the claim should the government entity fail 

to act upon the claim. See Annotation, Limitation period as 

affected by reauirement of notice or presentation of claim aqainst 

qovernmental body, 3 A.L.R.2d 711, 5 10 (1949). We hesitate to 

legislate what a reasonable time would be after presentation of a 

claim before it should be deemed denied. 

Furthermore, we think that the reasoning of the Wisconsin 

Supreme Court in Gutter v. Seamandel (Wis. 1981), 308 N.W.2d 403, 

applies to this case. In Gutter, the court discussed the 

applicability of a statute [Wis. Stat. 1975 5 62.25(1)(e)] 

providing a six month limitation period after rejection of a claim 

and requiring the tribunal to serve the claimant with a notice of 

disallowance. In holding that this statute applied rather than a 

statute providing a 90 day disallowance period when the council 

fails to act [Wis. Stat. 1975 5 345.051, the court stated: 

Our interpretation is also consistent with the public 

policy justifications for statutes of limitation. 

Statutes of limitation are imposed to ensure prompt 

litigation of valid claims and to protect a defendant 

from fraudulent or stale claims. Armes v. Kenosha 

County, 81 Wis.2d 309, 319-320, 260 N.W.2d 515 (1977). 

Interpreting sec. 62.25 (1) (e) to apply does not unduly 

lengthen the period during which suit may be commenced. 

On the contrary, the lensth of the period is controlled 

by the council which has only to serve notice of 

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disallowance in order to start the six month period 

within which the action must becrin. In this respect, 

sec. 345.05, not requiring proof of service of notice of 

disallowance, does little to ensure prompt litigation; 

such a statute is more likely to deprive unwary 

plaintiffs of the opportunity to litigate. (Emphasis 

added. ) 

Gutter, 308 N.W.2d at 414. Here, after Rouse filed his timely 

claim with the County, the County had notice of pending claims 

against it and also controlled the commencement of the six month 

limitation period. It would be inherently unfair to require Rouse 

to file a timely claim against the County before filing an action 

in District Court and then to penalize him for the County's failure 

to act, or stalling on the claim. We hold that under §§ 2-9-302 

and 27-2-209(3), MCA, the initial period of limitation for claims 

against a county is tolled upon timely filing of the claim and the 

six month period of limitation for filing an action in district 

court does not begin to run until the claimant receives notice of 

the county board's first denial of the claim. 

11. DEFENDANTS MARTELLI AND CUTLER 

A. Malicious Prosecution Claim 

The District Court held that 5 27-2-204, MCA, is the statute 

of limitation applicable to the claims of assault and malicious 

prosecution against the individual defendants Martelli and Cutler. 

The statute provides: 

27-2-204. Tort actions --- general and personal injury. 

(1) Except as provided in 27-2-216, the period prescribed 

for the commencement of an action upon a liability not 

founded upon an instrument in writing is within 3 years. 

(2) 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. 

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(3) The period prescribed for the commencement of an 

action for libel, slander, assault, batterv, false 

imprisonment. or seduction is within 2 years. (Emphasis 

added. ) 

Subsection (3) provides a two year limitation period for specific 

intentional torts. Subsection (1) provides a residual three year 

limitation period for torts not specifically enumerated in the 

statute. The District Court held that Rouse's claims of assault: 

and malicious prosecution were barred by subsection (3), stating: 

The Court has already concluded that the assault . . . was not a lawful act committed in the lawful discharge 

of an official duty. Therefore, the specific two year 

statute for assault still applies even if the claim 

presented to Anaconda-Deer Lodge County was never acted 

upon. This same logic applies to the malicious 

prosecution claims which stem from alleqations of false 

reports bv the Officers involved. The statute of 

limitations for fraud is also two years as set out in 

Section 27-2-203, MCA. (Emphasis added.) 

Thus the District Court held that Rouse's claim of malicious 

prosecution was based on fraud and the two year limitation period, 

rather than the three year residual limitation period, applies. 

See § 27-2-203, MCA. 

We need not determine in this case whether a cause of action 

for malicious prosecution is governed by the two year rather than 

the three year statute of limitations. 

[A] claim or cause of action accrues when all elements 

of the claim or cause exist or have occurred, the right 

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. . . . Unless otherwise 

provided by statute, the period of limitation begins when 

the claim or cause of action accrues. 

Section 27-2-102, MCA; Kitchen Krafters v. Eastside Bank (1990), 

242 Mont. 155, 161-62, 789 P.2d 567, 571; see also Heckaman v. 

8 
Northern Pac. Ry. Co. (1933), 93 Mont. 363, 375-76, 20 P.2d 258, 

261. The elements of the tort of malicious prosecution are: 

1. A judicial proceeding commenced against the 

2. the other party's responsibility for instigating 

3. a want of probable cause for the other party's 

4. the existence of malice as the motivator behind 

5. the termination of the proceedins in favor of 

6. damages suffered by the party alleging malicious 

party alleging malicious prosecution: 

the proceeding; 

act ion ; 

the other party's action; 

the allecrins Dartv; and 

prosecution. (Emphasis added.) 

First Bank (N.A.) Billings v. Clark (19891, 236 Mont. 195, 204- 

05, 771 P.2d 84, 90. The complaint alleges that Rouse was tried 

by a jury on March 13 and 14, 1986 and acquitted of the assault 

charge. The judgment is not part of the record. Assuming Rouse's 

allegations are true, his cause of action for malicious prosecution 

did not accrue until the acquittal. Rouse filed his cause of 

action in District Court on October 22, 1987. Assuming he was 

acquitted in March of 1986, his claim of malicious prosecution 

falls within either a three or two year statute of limitation and 

thus would not be barred. 

B. Assault Claim Asainst Officer Martelli 

The District Court ruled that the assault cause against the 

individual defendants was barred by 5 27-2-204(3), MCA, the two 

year statute of limitation for assault claims. Rouse argues that 

because the defendants are law enforcement officers of AnacondaDeer Lodge County, his cause of action is governed by a different 

statute, namely 5 27-2-209(1), MCA. The latter provides: 

27-2-209. Actions against local government or local 

9 
government official. (1) The period prescribed for the 

commencement of an action against a sheriff, coroner, or 

constable upon a liability incurred by the doing of an 

act in his official capacity and in virtue of his office 

or by the omission of an official duty, including the 

nonpayment of money collected upon an execution, is 

within 3 years; but this subsection does not apply for 

an action for an escape. 

The District Court ruled that this section does not apply "because 

none of the officials listed in the statute are involved in the 

instant case." 

We agree. There is authority that the statute does not apply 

to these types of actions, see Dixon v. Seymour (N.Y. 1978)' 405 

N.Y.S.2d 320, 321-22; Ingo v. Koch (2d Cir.1942), 127 F.2d 667, 

671; 80 C.J.S., Sheriffs and Constables, Sec. 151(b) (1953). 

However, even assuming they do apply, neither Officer Martelli nor 

Officer Cutler is a sheriff or coroner within the plain meaning of 

the statute. Rather, they are law enforcement officers of a 

consolidated city-county government entity. Furthermore, they are 

not *lconstables" within the true meaning of that word. Black's Law 

Dictionary (6th Edition 1990) defines constable as 

[a]n officer of a municipal corporation (usually elected) 

whose duties are similar to those of the sheriff, though 

his powers are less and his jurisdiction smaller. He is 

to preserve the public peace, execute the process of 

magistrates' courts, and of some other tribunals, serve 

writs, attend the sessions of the criminal courts, have 

the custody of juries, and discharge other functions 

sometimes assigned to him by the local law or by statute. 

Powers and duties of constables have generally been 

replaced by sheriffs. 

We also note that in at least one other jurisdiction where a 

similar statute of limitation has been held to apply to the 

tortious acts of law enforcement officials, the statute contains 

10 
the words "peace officer" rather than "sheriff" and "constable. 'I 

See Jenkins v. Daniels (Aka. 1988), 751 P.2d 19, 21. On the other 

hand, the wording of 5 27-2-209(1), MCA, is virtually unchanged 

from the original statute contained in the Field Code and first 

enacted in New York in 1829. See Dixon, 405 N.Y.S.2d at 321. If 

the legislature intended this limitation period to apply to all 

"peace officers" for all their tortious acts, it could have so 

amended it. Thus, the two year statute of limitation contained in 

5 27-2-204(3), MCA, applies to Rouse's assault claim against 

Martelli, and it is thus barred. 

111. DEFENDANTS' ISSUE 

In their response brief, the defendants attempt to raise the 

following issue, in the event that we reverse on the statute of 

limitation: 

Did the District Court err in determining that the defendants 

are not protected from suit based on the immunity provided in 5 2- 

9-111, MCA? 

The record indicates that the defendants have failed to 

properly preserve this issue for appeal by filing timely crossappeal on this issue. 

Although Rule 14 [M.R.App.Civ.P.] provides for review of 

matters by cross-assignment of error, this does not 

eliminate the necessity for cross-appeal by a respondent 

who seeks review of rulings on matters separate and 

distinct from those sought to be reviewed by the 

appellant. 

Johnson v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d 266, 268. 

Thus, we are precluded from reviewing this issue on appeal. 

In summary, Rouse's assault claim against Officer Martelli is 

11 
barred by 5 27-2-204(3), MCA. Rouse's claims against the 

individual officers for malicious prosecution and his claim against 

the County are not barred, and we reverse the District Court's 

order to that extent. AFFIRMED in part and REVERSED and REMANDED 

for further proceedings consistent with this opinion. 

We Concur: 

Justices 

12 
Justice Fred J. Weber specially concurs as follows: 

I agree with the holding of the majority opinion that the 

cause of action was not barred by the statute of limitations 

contained in 5 27-2-204(3), MCA. I base my concurrence upon my 

conclusion that the plaintiff filed his action within a reasonable 

time after presentation of the claim to the governmental entity. 

That rationale is not specifically approved in the majority 

opinion. 

As quoted in the majority opinion, 5 2-9-301, MCA, provides 

that claims against the State of Montana must be presented to the 

Department of Administration and the Department must grant or deny 

the claim in writing sent by certified mail within 120 days. 

Failure of the Department to make a final disposition within 120 

days after presentation "must be considered a final denial of the 

claim." In addition, the statute of limitations on the claim is 

tolled by 120 days. 

Unfortunately the legislature did not make any provision with 

regard to the time limitations on claims made to a political 

subdivision. Under paragraph (3) of the same code section, such 

claims are required to be presented to the clerk or secretary of 

the political subdivision. There is no reference to the manner of 

responding on the part of the political subdivision or its clerk, 

nor is there any reference to an extension for statute of 

limitation purposes. I would hope that this absence will be noted 

by the legislature and cared for in future legislation. 

While I generally agree that this Court should not legislate 

13 
on matters, I question that the application of a reasonable time 

standard constitutes legislation for this purpose. Here plaintiff 

waited more than 14 months after filing his claim with the CityCounty before he filed his complaint in District Court. 

Notwithstanding that wait, because the complaint was filed within 

three years of the original date of injury, I conclude that the 

filing occurred within a reasonable time. I therefore join in the 

majority opinion. 

The holding of the majority indicates there is no time 

limitation which begins to run until the claimant actually receives 

notice of the County Board's denial of the claim. Had the 

plaintiff here delayed 14 years from the filing of his claim to the 

filing of the District Court complaint, I would conclude that was 

an unreasonable time which barred his right to recover. 

The majority has also provided that the six month period of 

limitation does not begin to run until the claimant "receives 

notice" of the denial of his claim. That is even more strict than 

the statutory requirement with regard to the State of Montana, 

which only requires the State to send their denial by certified 

mail. I do not agree with that conclusion. 

14 
September 11, 1991 

CERTIFICATE OF SERVICE 

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

following named: 

Jay F. Lansing 

Moses Law Firm 

P.O. Box 2533 

Billings, MT 59103 

Jon R. Binney 

Milodragovich, Dale & Dye 

P.O. Box 4947 

Missoula, MT 59806 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAmF MONTANA 

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