96-580
No. 96-580
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
CLEVE LONEY,
Plaintiff and Appellant,
v.
HAROLD VAN DYE,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John Henson, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Michael R. Tramelli, Great Falls, Montana
For Respondent:
Gregory C. Black, Corette, Pohlman & Kebe, Butte,
Montana
Submitted on Briefs: February 20, 1997
Decided: March 4, 1997
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Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Cleve Loney appeals from the July 26, 1996, opinion and order
of the Fourth Judicial District Court, Missoula County, granting
Harold Van Dye's motion for summary judgment and denying Loney's
motion for summary judgment. We affirm.
We restate the following issues raised by Loney on appeal:
1. Did the District Court err when it determined that 27-
2-206, MCA, barred Loney's malpractice claim?
2. Did the District Court err when it granted summary
judgment based on res judicata?
3. Did the District Court err when it ruled that the only
allegation of malpractice raised in the pleadings was Dye's failure
to file a declaration of homestead?
4. Did damages result from Dye's failure to file a
declaration of homestead?
BACKGROUND
This case arises from Dye's legal representation of Loney in
bankruptcy proceedings. Additional facts are contained in Loney v.
Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 905 P.2d
158.
Loney filed a complaint on May 6, 1993, alleging that Dye was
negligent and breached his implied contract with Loney by failing
to file a declaration of homestead in Loney's bankruptcy. In an
amended answer, Dye asserted numerous affirmative defenses,
including statute of limitations and res judicata. Dye moved for
summary judgment, arguing that Loney's claim was barred by res
judicata. The District Court denied the motion because it
determined that there was a genuine issue of material fact
regarding when Loney should have known of the facts giving rise to
his legal malpractice claim.
Subsequently Loney's deposition was taken. Dye learned when
Loney discovered Dye's failure to file the declaration of
homestead. Dye filed a second motion for summary judgment, again
arguing res judicata and also arguing that Loney's claim was barred
by the statute of limitations for legal malpractice contained at
27-2-206, MCA. Loney also moved for summary judgment.
The District Court granted Dye's motion for summary judgment
on the issues of res judicata and statute of limitations, and
denied Loney's motion for summary judgment. It concluded that
Loney alleged additional claims of malpractice not properly raised
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in the pleadings. Loney appeals.
DISCUSSION
Did the District Court err when it determined that 27-2-206,
MCA, barred Loney's malpractice claim?
We review summary judgment orders de novo. Spain-Morrow
Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331.
Summary judgment is proper only when no genuine issue of material
fact exists and the moving party is entitled to a judgment as a
matter of law. Rule 56(c), M.R.Civ.P. Spain-Morrow Ranch, 872
P.2d at 331-32.
Section 27-2-206, MCA, provides:
Actions for legal malpractice. An action against an
attorney licensed to practice law in Montana or a
paralegal assistant or a legal intern employed by an
attorney based on the personþs alleged professional
negligent act or for error or omission in the personþs
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, whichever occurs last, but in no case may the
action be commenced after 10 years from the date of the
act, error, or omission.
It is the knowledge of facts, rather than the discovery of
legal theories, that is the test for tolling the statute of
limitations in a legal malpractice action. Burgett v. Flaherty
(1983), 204 Mont. 169, 173, 663 P.2d 332, 334.
The testimony from Loney's deposition establishes that on
March 6, 1990, he discovered Dye's failure to file the declaration
of homestead. The applicable statute of limitations, 27-2-206,
MCA, began running and expired three years later. Because Loney
did not file his complaint alleging legal malpractice until May 6,
1993, more than three years after he discovered Dye's failure to
file the declaration of homestead, his claim is barred by 27-2-
206, MCA.
We hold that the District Court did not err when it determined
that 27-2-206, MCA, barred Loney's malpractice claim. Because we
so hold, we decline to address the remaining issues raised on
appeal. The District Court's order granting Dye's motion for
summary judgment is affirmed.
/S/ J. A. TURNAGE
We concur:
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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/S/ W. WILLIAM LEAPHART
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