c. Release. In August, 1977, the trustees of the
Association entered into a written release with Big Sky
of Montana Realty, wherein Realty paid $54,000.00 toward
the repairs of the building, and relinquished a claim for
$22,259.46 in payments due from the Association. As part
of the release, the Association waived "any claims they
may have1! against Big Sky of Montana, Inc. and its
subsidiaries "arising out of the construction and sale
of the condominium units known as Deer Lodge Condominium,
such waiver and release to apply to all claims arising
prior to and including the date of this settlement
agreement.
We recognize that the covenants of Deer Lodge Condominium
gave to the Association the right to enter the contracts
or hire personnel for the management of the affairs of
the Association and the maintenance and repair of the
common areas of the buildings, and thus did not preclude
individual claims by the unit owners. Nonetheless, the
settlement in the Structure case was one which included
the entire demolition of the condominium buildings and
when approved by the District Court on July 25, 1988, the
order provided that:
llFollowing compliance with the terms and
conditions of this settlement order, this
cause shall be by a separate order dismissed
with prejudice, each party to pay their or its
own costs." (Emphasis added.)
d. Dismissals of Dars and Moe. In the course of the
litigation in the Structure case, motions were made by
the defendants Darg and Moe for summary judgment.
Separately the District Court considered those motions
and in each case granted the same.
In the Moe case, in finding of fact no. 4, the District
Court found:
4. During the period of April 1, 1976 through
September 28, 1976, the owners of the
condominiums and the Plaintiffs were
repeatedly notified of and became aware of the
deficiencies and defects in the condominiums.
Such notices and knowledge were sufficient to
put them on notice that they had been damaged
and injured.
When the District Court considered the Darg motion for
summary judgment, it made the following findings:
3. The Plaintiff-Owners of the condominiums
became aware in 1976, of what was termed
!!significant structural defects." The
Plaintiffs1 complaint alleges that they were
advised and informed of the defects on or
about April 1, 1976. Each of the individual
Condominium owners were advised by letter
dated September 12, 1976, from Big Sky Realty
that the engineers, Morrison-Maierle, Inc:,
had discovered a llstructural deficiencyt1 in
the units and that the owners were cautioned
with respect to occupancy until the problem
was solved. Again, on September 22, 1976, Big
Sky Realty by letter to Plaintiff Association
notified the owners of the deficiency.
4. The Court finds that from April 1, 1976,
through September 22, 1976, the owners were
repeatedly notified of the structural defects
and the notices were sufficient to put them on
notice that they had been injured.
On January 30, 1987, the District Court entered final
judgment for Lloyd W. Darg and Associates, provided
therein that the judgment was final, and certified it for
appeal pursuant to Rule 54 (b), M.R. Civ.P. In like
manner, on May 15, 1987, the District Court entered final
judgment in favor of Moe, and directed also that there
be a final judgment and certified it for appeal pursuant
to Rule 54 (b).
Both the Moe and the Darg cases were appealed, but
eventually they were dismissed. The judgments in those
cases have therefore become final.
A principal argument of the unit owners in this Fire
case, to avoid the statute of limitations, is that they
never learned of the defects of the fireplaces until
after the fires occurred in 1981. It is clear, however,
that in the Structure case, the District Court determined
that the defendants have been fully notified of the
defective conditions of the construction of the
condominiums, and that the notice of defects included all
of the structural defects in the condominiums.
e. Subrosation Claims
In granting summary judgment in this case, the District
Court noted that on oral argument on the motions, counsel
for plaintiffs indicated that these claims were actually
subrogated claims brought by the insurers involved.
However, there is no amendment to the pleadings nor any
other indication of the pleadings that persons other than
the unit owners were the real parties in interest. That
the claims the plaintiffs made may in fact be subrogation
claims makes no difference, however. A subrogee stands
in the shoes of the subrogor and is subject to the same
defenses as though the action were sued upon by the
insured. Beedie v. Shelley (1980), 187 Mont. 556, 610
P.2d 713, 716.
f. Besinninq Date of Statute of Limitations
The unit owners contend that the beginning date of any
applicable statute of limitations in this case occurred
after the fires in the units in 1981. They contend that
after the repair effort in 1976, they were never advised
that the fireplaces had not been repaired or that they
were still defective. On this contention, the unit
owners based their various theories of liability,
including express warranty, implied warranty, strict
liability, negligence, fraud and deceptive practices.
In entering its order granting summary judgment to the
defendants in this, the Fire case, the District Court
recited facts established in the Fire case and the
Structure case which the District Court denominated
I1findings of fact." Usually there are no findings of
fact in an order granting summary judgment. In this
case, however, the portion of the order denominated
Itfindings of factM is really a statement of the
undisputed facts as they then appeared before the
District Court and from which the court concluded there
was no issue of material fact, and upon which the court
based its order of summary judgment.
Important to the findings were ,the statements relating
to the fireplace deficiencies. The court stated that the
1976 repairs included work on the fireplaces; the same
unit owners who were plaintiffs in the Fire case were
also plaintiffs in the Structure case; and that in the
Structure case, it had been alleged that the plaintiffs
had been damaged by defective original fireplace
installations in 1973-1975, and by defective fireplace
repairs in 1976. The court determined that each of the
legal theories alleged in the Fire case considering the
defective fireplaces was also alleged as a theory of
recovery against the defendants in the Structure case.
On that basis, the court had determined in the Moe and
Darg cases that during the period from April 1, 1976
through September 28, 1976, the owners of the
condominiums and the plaintiffs were repeatedly notified
of and became aware of the deficiencies in the
condominiums and that such notices and acknowledgements
were sufficient to put them on notice that they had been
damaged and injured.
Therefore, in view of the findings derived from the
Structure case, and the fact that the summary judgment
in both cases had become final judgments, there could be
no dispute as a material fact of the beginning date of
notice to the unit owners of the defects of the fireplace
deficiencies.
DEFENDANTS BRUCE HOUSTON AND THE STATE OF MONTANA
The unit owners claim that the District Court improperly
granted summary judgment in favor of Bruce Houston and the State
of Montana.
Houston and the State of Montana were not parties in the
Structure case. The unit owners contend that Houston, as an
employee of the State of Montana, committed acts of negligence in
1981 and following, in that he did not inform or warn the unit