12/28/2017
DA 17-0261
Case Number: DA 17-0261
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 323N
ALLAN J. GERHART,
Plaintiff and Appellant,
v.
KALVIG & LEDUC, P.C., KALVIG LAW FIRM, P.C.,
BRUCE FREDERICKSON, ANGELA LEDUC, and
LAKE COUNTY, a political subdivision,
Defendants and Appellees.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-14-914(D)
Honorable Dan Wilson, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kim T. Christopherson, Christopherson Law Office, P.C.,
Kalispell, Montana
For Appellees Kalvig & LeDuc, P.C., Kalvig Law Firm, P.C.,
Bruce Fredrickson, and Angela LeDuc:
Mikel L. Moore, Katherine A. Matic, Moore, Cockrell, Goicoechea
& Johnson, P.C., Kalispell, Montana
For Appellee Lake County:
Walter E. Congdon, Civil Deputy Lake County Attorney,
Polson, Montana
Submitted on Briefs: December 13, 2017
Decided: December 28, 2017
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 Allan Gerhart appeals from the District Court’s order granting summary judgment
to the defendants and denying summary judgment to Gerhart. We affirm.
¶3 This case arises from Gerhart’s effort in 2007 to secure a road approach permit
from Lake County. When the County denied the permit, Gerhart sued the County in
United States District Court, claiming a right to damages pursuant to 42 U.S.C. § 1983.
The United States District Court dismissed Gerhart’s complaint. He secured new
attorneys (the Kalvig defendants) and successfully appealed the dismissal to the Ninth
Circuit Court of Appeals. Just before the scheduled trial in 2011, Gerhart’s attorneys
learned that an adjacent landowner had offered him an alternate and possibly superior
easement to his property. The attorneys advised Gerhart that this information greatly
diminished the value of his claim against the County, and advised him to settle. Gerhart
subsequently agreed to settle that claim for $100,000 and the County’s approval of his
road approach permit.
¶4 The County tendered the settlement amount and Gerhart signed a settlement
document acknowledging the terms. In December 2011 Gerhart’s attorneys distributed
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the settlement proceeds, withholding their unpaid fees, the cost of the prior mediation,
and $20,000 to account for a lien for fees asserted by his original attorneys. Gerhart
received slightly over $38,000. Shortly thereafter Gerhart terminated his relationship
with the Kalvig defendants.
¶5 Over two years later, in 2014, Gerhart appeared through his present attorney
demanding that the Kalvig defendants pay over to him the $20,000 they had retained
from the settlement amount to account for the asserted attorney fee lien. The Kalvig
defendants paid the money to Gerhart. In August 2014 Gerhart filed the current action in
the Eleventh Judicial District Court against his former attorneys and Lake County. The
defendants moved for summary judgment.
¶6 Gerhart’s complaint contained a number of counts purporting to state claims for
legal malpractice against the Kalvig defendants and for breach of contract against Lake
County. Gerhart claimed, in summary, that his attorneys had misled him into settling
with the County, that they never actually secured a written access permit from the
County, and that they breached duties owed to him by withholding the $20,000 from the
settlement proceeds. Gerhart claimed that the County breached the settlement agreement
by not providing him with a separate written access permit. The District Court analyzed
Gerhart’s claims against the attorneys, concluding that they were barred by the statute of
limitations or that they failed to state claims on their face. The District Court determined
that the claim against the County failed because Gerhart clearly had a written agreement
acknowledging his right to the requested access.
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¶7 The District Court properly granted summary judgment against Gerhart. Despite
his attempts to mischaracterize the situation, Gerhart won his dispute with the County and
signed a written settlement agreement. He recovered a substantial amount of money from
the County along with an acknowledgment that he had a right of access. His attorneys
contend that he withheld critical information about a second potential access to his
property, while Gerhart contends that his attorneys incorrectly analyzed the effect of this
evidence and misled him into the settlement. Despite Gerhart’s strenuous objection, the
District Court was not required to accept Gerhart’s rebranding of his fraud claims as
malpractice claims in order to secure a longer statute of limitations.
¶8 The District Court correctly held that Gerhart failed to demonstrate that any
defendant is liable to him under any of the claims raised in the complaint below.
¶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, this case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶10 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ LAURIE McKINNON
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