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Kananen v. South

Supreme Court of Montana

August 20, 2013

CARL W. KANANEN, Plaintiff and Appellant,
v.
KAREN A. SOUTH, ALTA MAE PALLETT and WESTERN SURETY COMPANY, Defendants and Appellees.

Submitted on Briefs: May 29, 2013

APPEAL FROM: District Court of the Tenth Judicial District, In and For the County of Fergus, Cause No. DV 12-47 Honorable E. Wayne Phillips, Presiding Judge

For Appellant: Jack R. Stone, Attorney at Law, Lewistown, Montana

For Appellee: Joan E. Cook, Law Office of Joan E. Cook, Missoula, Montana (Counsel for Appellee, Karen A. South) Kris A. Birdwell, Stogsdill Law Office, Lewistown, Montana (Counsel for Appellees Alta Mae Pallett and Western Surety Company)

OPINION

Michael E Wheat Justice

¶1 Carl Kananen (Kananen) appeals from the judgment of the Tenth Judicial District Court, Fergus County, granting a motion to dismiss filed by Karen South, Alta Mae Pallett, and Western Surety (collectively "Defendants"). We affirm in part and reverse in part, and address the following issues:

¶2 Issue One: Did the District Court err by dismissing Kananen's fraud claim on the basis of the statute of limitations?

¶3 Issue Two: Did the District Court err by not conducting a hearing on the Rule 12(b)(6) motion to dismiss?

¶4 Issue Three: Did the District Court err by awarding attorney fees and costs pursuant to § 40-4-110, MCA?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Kananen and Karen South (South) were married in November 1993. I n January 1995, South made Kananen a co-owner of the Mill Creek Property, which South had owned and lived on prior to her marriage to Kananen. In October 2007, the Fergus County Clerk and Recorder recorded a quit claim deed (the "deed") that transferred Kananen's interest in the Mill Creek Property back to South.

¶6 Kananen and South's marriage ended in divorce in 2009. The District Court held a dissolution hearing on November 19, 2009, at which the parties argued over their respective interests in the Mill Creek Property. Testimony revealed that between 1993 and 2009, the Mill Creek Property increased in value by $100, 000. The parties disputed whether this $100, 000 should go into the net marital estate to be equitably apportioned between Kananen and South. F ollowing the hearing, the District Court concluded that South was the owner of the Mill Creek Property, and that the majority increase in value of the property was due to market force and had nothing to do with any contributions made by Kananen. The court granted $8, 000 to Kananen for his minimal contributions to improvements in the property.

¶7 On June 5, 2012, Kananen filed a complaint alleging that South fraudulently forged Kananen's signature on the deed to the Mill Creek Property and that Alta Mae Pallett (Alta) notarized the forged signature. Western Surety Company issued Alta her notary bond and, accordingly, was also a named defendant.

ΒΆ8 Defendants moved to dismiss pursuant to the statute of limitations, collateral estoppel, and lack of damages. The District Court granted Defendants' motion on the basis that the two-year statute of limitations for fraud claims had run. The District Court also ...


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