(5) Nothing in this section shall be construed as
extending the period prescribed by the laws of this state
for the bringing of any action.
Taken by its four corners, 5 27-2-208, MCA, is not in itself
a statute of limitation. Under subsection (5) of the statute, the
ten-year period does not extend any other period prescribed by the
laws of this state for bringing any action. What 5 27-2-208, MCA,
provides is that other applicable statutes of limitation still
remains applicable but in no event shall any cause be commenced
more than ten years after the completion of the improvement.
Section 27-2-208, MCA, is not in essence a statute of limitations,
but rather a statute of repose which prevents any cause of action
relating to an improvement to real property from arising after a
ten year period. Thus, if late discovery of the facts were
applicable in this case to extend the time for commencement of the
action, or, if the circumstances which extend the periods of
limitations set out in 5 5 27-2-401, and -409, MCA, were involved,
the specific applicable limitations periods would be extended, but
in no event longer than ten years after the completion of the
improvement. We determine that 5 27-2-208, MCA, does not apply in
this case to extend the applicable statutes of limitation.
We therefore hold that the District Court correctly
interpreted the statutes of limitation in granting summary judgment
in this case.
4. Other Theories of Recovery
The unit owners claimed that Realty was liable on the ground
of negligence. The District Court held that the negligence claim
was barred by the applicable statutes of limitation, 5 27-2-207 (1)
and 27-2-204(1), MCA. From what we have said foregoing, we uphold
the District Court.
With respect to the unit owners claim based on a count of
fraud, the District Court held that the records showed no facts
substantiating the knowledge of Realty of the defectively installed
fireplaces in 1975, that the plaintiffs were collaterally estopped
to deny that the unit owners knew or should have known of the
defectively installed fireplaces in 1976 and again that their
claims were barred by the applicable statutes of limitation, 9 9
27-2-203 and 27-2-207(1), MCA.
The argument of the unit owners with regard to whether Realty
had knowledge of the defectively installed fireplaces states that
while it is true that Realty did not come into existence until
1976, its stockholders were the same as the stockholders of Big Sky
of Montana, and many of those employees carried over to Realty.
Although Big Sky of Montana knew of the defects in the buildings,
based on a letter from an insurance inspector, Realty undertook the
1976 repairs. The unit owners contend that Realty knew or should
have discovered the defects when it became responsible for the
repairs of 1976. That argument may be accepted and still the other
grounds relied upon by the District Court--collateral estoppel and
limitations--would serve to bar the claims for fraud. Again we
hold that the District Court was correct.
The unit owners also based a claim against Realty on the
grounds of deceptive practices. Here, the District Court
determined that the evidence did not substantiate that the
plaintiffs purchased their homes "primarily for personal, family
or household purposes11and that in any event, the claim is barred
by limitations, B 27-2-211, MCA.
The Montana Consumer Protection Act provides in 5 30-14-133,
MCA, that a person who purchases goods or services primarily for
personal, family or household purposes and suffers a loss of money
or property may bring an action (but not a class action) to recover
actual damages, which may be trebled. The Act also provides for
the recovery of reasonable attorney fees.
The Act does not define the term I1goodsgt
and no issue is
presented in this case as to whether the term llgoodsll
includes a
condominium unit. We are, therefore, not presented with that
issue.
The unit owners contend that the finding of the District Court
that the facts did not establish the use of the condominiums was
for "personal, family or household purposesv1 is contra to the
declarations filed for Deer Lodge Condominiums which stated that
they should be for residential purposes only. Moreover, the unit
owners contend that in any event, whether the use of the residences
comes within the Act creates a material issue of fact.
Realty answers that the unit owners use their units for
personal use only a few days of the year and allow the remainder
of the year to be rented out to other persons and that the units
were more investment than they were purchases of homes.
Whatever the merits of these arguments, the limitations of
actions still apply and the claim in any event is barred. Again
we uphold the District Court.
5. Release
The District Court also concluded that the claims against
Realty were barred by a fully-performed release executed by the
Association on behalf of the plaintiffs.
The unit owners contend that the release was not signed by the
entire board of directors, that it was not binding, that it
released only claims arising prior to the date of the document, was
related only to the repairs performed on the roof of the
condominiums and did not include undisclosed defects in the
buildings and fireplaces.
Respondents answer by pointing to the provisions of the
release: