of Realty. The affidavits before the District Court, which the
District Court considered in granting summary judgment, were
uncontradicted that these corporate stockholders had no more than
a passive interest in the corporations, and took no action as
stockholders which would indicate their use of the corporations
either as an alter ego or for purposes of subterfuge. There simply
can be no argument that each of the corporations is entitled to
summary judgment and that as to them the corporate veil has not
been pierced.
SUMMARY JUDGMENT IN FAVOR OF BOYNE U.S.A., INC.
The District Court's order of March 1, 1989 also granted
summary judgment in favor of Boyne U.S.A., Inc.
In their appellate brief, the unit owners argue since Boyne
absorbed Big Sky of Montana, Boyne became liable for its
obligations which arose thereafter, under 5 35-1-806(2)(e), MCA.
The District Court noted that Boyne took no part in the
repairs or reconstruction of the condominiums in 1976 and 1977, nor
made any representations regarding such repairs. It further
awarded summary judgment in favor of Boyne on the grounds of the
applicable statutes of limitation, the release, collateral
estoppel, laches, and a splitting of causes of action.
Most of the grounds utilized by the District Court granting
summary judgment have been discussed by us fully in the foregoing
material. Without belaboring this Opinion further, we hold that
the summary judgment in favor of Boyne was proper.
DENIAL OF CONSOLIDATION
On May 28, 1985, the unit owners in the Fire case made a
motion to consolidate with the Structure case. The District Court
denied the motion on July 8, 1985. On February 26, 1987, the
District Court stayed any further proceedings in the Fire case.
The stay was effective until June 6, 1988. Thereafter the District
Court ruled that the unit owners were barred from any further
action in the Fire case because of collateral estoppel arising out
of the Structure case.
The unit owners contend that the motion for consolidation
should have been granted because if it had, the situation of
collateral estoppel would not have arisen and the unit owners would
have had their day in court with respect to the Fire case.
Since 1929, it has been a rule in Montana that the subject of
consolidation of cases is within the discretion of the district
court, which will not be interfered with unless clearly abused.
St. George v. Boucher (1929), 84 Mont. 158, 162, 274 P. 489.
Although there appeared to be common issues of law and fact
in the two cases (Keller v. Llewellyn (1977), 175 Mont. 164, 573
P.2d 166) , there are other factors which influenced the District
Court not to consolidate.
The Fire case was initiated by the unit owners in 1983,
through their counsel Michael C. Coil. In 1984, the unit owners,
in a class action with other Deer Lodge Condominium owners, began
the Structure case, again represented by Mr. Coil. In January,
1986, the plaintiffs in the Structure case discharged Mr. Coil.
He was replaced by Page Wellcome as counsel for the unit owners in
the Structure case.
The District Court was then presented with a situation where
the unit owners may have been the same but there were different
defendants involved. The reason there were different defendants
was that in the Fire case, the shareholder defendants, Chrysler
Realty Company, Burlington Northern, Continental Oil Company,
Montana Power Company, Northwest Airlines Incorporated, and General
~lectricPension Trust had been dismissed from the case for various
reasons. Yet some or all of these were defendants in the Strilcture
case. The Structure case would require piercing-the-corporate-
veil issues, but these would not appear in the Fire case. After
Mr. Wellcome came into the case, the plaintiffs in two different
cases were presenting different issues of discovery. These factors
apparently moved the ~istrict Court to deny the motion to
consolidate, and to stay proceedings of the Fire case.
Under the circumstances, we find no abuse of discretion in the
denial by the District Court of the motion to consolidate the two
cases.
PLAINTIFFS WHO WERE NOT IN STRUCTURE CASE
Four of the plaintiffs in the Fire case were not plaintiffs
in the Structure case. They were Melts Remodeling, Robert
~ousignant,Gerald Tereich and Carolyn Tereich. Their claims may
have been subrogated to their insurers.
These four plaintiffs were not parties in this Structure case
so the rule of collateral estoppel is not available as to them.
Nonetheless, it is clear that their claims are barred by the
statute of limitations based on any alleged negligence of the
defendants (Montana Power Company and General Electric pension
Trust, of course, are not liable to these plaintiffs on any
ground). In reaching this decision, we take judicial notice of the
facts established in the Structure case which show that the unit
owners knew, or should have known, of the fireplace defects, and
were repeatedly notified of the structural defects from April 1,
1976 to September 28, 1976. We determine as a matter of law in
this case that there is no genuine issue of material fact as to
these plaintiffs and their knowledge before September 28, 1976, was
sufficient to put them on notice.
The law does not contemplate such discovery as would give
complete knowledge before the cause of action accrues.
Mobley v. Hall (1983), 202 Mont. 227, 657 P.2d 604.
Rather, the discovery doctrine only tolls the running of
the statutory clock until such time as the plaintiff, in
the exercise of reasonable care and diligence, should
have been aware of the wrongful act and injury.
E.W. v. D.C.H. (1988), 231 Mont. 481, 754 P.2d 816, 820.
The claims of these plaintiffs based on negligence are time-
barred, and no other ground of liability appears under any theory.
We uphold the summary judgment against these plaintiffs.
CONCLUSION