Opinion
DA 17-0590
07-10-2018
DUANE RONALD BELANUS, Plaintiff and Appellant, v. PALMER HOOVESTAL, Defendant and Appellee.
COUNSEL OF RECORD: For Appellant: Duane Ronald Belanus, Self Represented, Deer Lodge, Montana For Appellee: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2014-23 Honorable Mike Menahan, Presiding Judge COUNSEL OF RECORD: For Appellant: Duane Ronald Belanus, Self Represented, Deer Lodge, Montana For Appellee: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana Filed: /s/_________
Clerk Justice Ingrid Gustafson delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Duane Ronald Belanus (Belanus) appeals from the Order on Motion to Dismiss of the First Judicial District Court, Lewis and Clark County, dismissing his Complaint for Breach of Contract (Complaint). We affirm. ¶3 Belanus has brought several suits relating to criminal charges brought against him in August 2008. His current claims stem from his convictions for sexual intercourse without consent with aggravating circumstances, aggravated kidnapping, burglary, theft, and tampering with or fabricating physical evidence, and the legal work performed by his attorney Palmer Hoovestal (Hoovestal) in relation therewith. See State v. Belanus, 2010 MT 204, 357 Mont. 463, 240 P.3d 1021. Although couched in terms of breach of contract, the gravamen of his current claims against Hoovestal is professional negligence. ¶4 The jury trial for Belanus's criminal charges was held in June 2009, after which the jury found him guilty on all counts. Belanus was sentenced to life imprisonment without parole on August 13, 2009, with written judgment filed August 24, 2009. This Court affirmed Belanus's conviction on September 21, 2010, with remittitur issued October 7, 2010. Belanus filed his Complaint in the present action on January 13, 2014, and filed an Addendum Complaint for Breach of Contract and Legal Malpractice as a Second Count (Addendum) to the Complaint on December 6, 2016. ¶5 We review de novo a district court's ruling on a motion to dismiss pursuant to M. R. Civ. P. 12(b)(6). Western Sec. Bank v. Eide Bailly LLP, 2010 MT 291, ¶ 18, 359 Mont. 34, 249 P.3d 35. We construe the complaint in the light most favorable to the plaintiff when reviewing an order dismissing a complaint under M. R. Civ. P. 12(b)(6). A district court should not dismiss a complaint for failure to state a claim unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Jones v. Mont. Univ. Sys., 2007 MT 82, ¶ 15, 337 Mont. 1, 155 P.3d 1247. A district court's determination that a complaint has failed to state a claim for which relief can be granted is a conclusion of law which we review for correctness. Sinclair v. Burlington Northern & Santa Fe Ry, 2008 MT 424, ¶ 25, 347 Mont. 395, 200 P.3d 46. ¶6 Although Belanus couches his claims as breach of contract, the gravamen of them, not the label attached, controls the limitation period to be applied. Erickson v. Croft, 233 Mont. 146, 153, 760 P.2d 706, 710 (1988). Belanus's claims against Hoovestal are clearly professional negligence claims sounding in tort, and not breach-of-contract claims. Tin Cup Cnty. Water and/or Sewer Dist. v. Garden City Plumbing & Heating, Inc., 2008 MT 434, ¶¶ 25-26, 347 Mont. 468, 200 P.3d 60 (if a claim involves a breach of a legal duty imposed by law that arises during the performance of the contract, the suit properly sounds in tort). Belanus admits this, asserting, "[I]t's time for Hoovestal to answer for his professional negligence constituting legal malpractice . . . ." in his opening brief. As such, the three-year statute of limitations provided in § 27-2-206, MCA, applies to these claims. Section 27-2-206, MCA, provides in pertinent part:
An action against an attorney licensed to practice law in Montana . . . based upon the person's alleged professional negligent act or for error or omission in the person's practice must be commenced within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission . . . .¶7 The statute of limitations begins to run on a legal malpractice claim stemming from criminal representation within three years of when the criminal defendant discovers the act, error, or omission. Ereth v. Cascade Cnty., 2003 MT 328, ¶ 26, 318 Mont. 355, 81 P.3d 463. Here, the three-year statute of limitations regarding trial-related professional negligence claims expired no later than June 2012, and the three-year statute of limitations for appeal-related professional negligence claims expired no later than October 7, 2013. Belanus's Complaint was filed January 13, 2014—more than three years after Hoovestal performed his final services for Belanus in relation to the criminal charges brought in BDC 2008-309. However, it is clear from the allegations within the Complaint and Addendum that he was well aware of the facts supporting his allegations against Hoovestal prior to January 12, 2011. Therefore, his claims are clearly barred by the three-year statute of limitations set forth in § 27-2-206, MCA, and the District Court correctly dismissed Belanus's Complaint and Addendum thereto. ¶8 Since we affirm the District Court's dismissal of Belanus's claims against Hoovestal as barred by the applicable three-year statute of limitations, we need not reach Hoovestal's other arguments. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶10 Affirmed.
In addition to the current action, Belanus brought unsuccessful legal claims against the victim, the county attorney and deputy prosecuting attorney, a law enforcement investigator, various sheriff's deputies, a probation officer and a judge, as well as an unsuccessful post-conviction relief action.
Belanus's Complaint asserts claims against Hoovestal for failure to: investigate, obtain a forensic pathologist, object to evidence, produce evidence, make arguments, formulate a defense, file charges against Belanus's ex-girlfriend, stay in contact, and seek justice for a purported assault against Belanus at the jail. Belanus also claims Hoovestal acted negligently by not raising ineffective assistance of counsel as an issue in Belanus's subsequent appeal. These same complaints were asserted against Hoovestal in Belanus's post-conviction relief action. The gravamen of these complaints was Belanus was "convicted and sentenced to prison because Hoovestal's incompetence in violation of his constitutional rights."
We further note that Hoovestal's motion to withdraw representation, filed in January 2011, does not constitute legal work done on the case and thus does not extend the statute of limitations.
/S/ INGRID GUSTAFSON We concur: /S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA