May 12 2009
DA 08-0525
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 160N
JOHN O. MILLER,
Plaintiff and Appellant,
v.
JAMES H. GOETZ,
Defendant and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV-07-361B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John O. Miller (self-represented); Deer Lodge, Montana
For Appellee:
Kristin N. Hansen; Moore, O’Connell & Refling, P.C., Bozeman, Montana
Submitted on Briefs: April 22, 2009
Decided: May 12, 2009
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court 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 Miller appeals from the Decision and Order of the District Court granting summary
judgment to Goetz. We affirm.
¶3 Miller is serving a term of two concurrent life sentences for homicide convictions
imposed on November 8, 1991. An express provision of the sentencing order was that Miller
not be eligible for parole for twenty-four years from the date of the sentence, or November 8,
2015. Defendant Goetz represented Miller in the proceedings in 1991. Since then, Miller’s
various post-conviction petitions and motions have been denied and those decisions have
been upheld (State v. Miller, 278 Mont. 231, 924 P.2d 690 (1996); State v. Miller, 2003 MT
311N; State v. Miller, 2006 MT 86N). These proceedings have involved various attacks
upon Miller’s sentence, and particularly the issue of credit for time served prior to
sentencing. In 2006, we specifically rejected Miller’s contention that credit for time served
prior to sentencing affected his parole eligibility date. Miller (2006), ¶ 4. The restriction
upon Miller’s parole eligibility is a clear and separate provision of the original sentencing
order and has nothing to do with any issue regarding credit for time served. Miller is not
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eligible to be considered for parole until the passage of twenty-four years from the date of
the original sentence.
¶4 In 2004 Miller sought help from Goetz, who had not represented him since 1991, in
his quest to obtain credit for time served prior to sentencing and to have that credit alter his
parole eligibility date. Goetz agreed to try to help Miller, and wrote letters and made phone
calls on his behalf. After Miller increased the scope of the issues he wanted Goetz to address
and after Miller’s parents criticized Goetz’s work, he withdrew from any further
representation of Miller. Miller sued.
¶5 The District Court granted summary judgment to Goetz on Miller’s claims of breach
of warranty, breach of contract and breach of implied covenant of good faith and fair dealing.
We have examined Miller’s claims and the District Court’s order and find that the District
Court properly granted summary judgment to Goetz. Montana has not recognized the
existence of express warranty claims against attorneys. Miller’s breach of contract claim
arises from the unsupportable contention that there was a single, on-going contract between
Goetz and Miller since 1991. Miller’s claim regarding the covenant of good faith and fair
dealing similarly fails because he had no contract with Goetz.
¶6 We therefore affirm the September 8, 2008, Decision and Order of the District Court
in his matter.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. The issues are clearly controlled by settled Montana law. Affirmed.
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/S/ MIKE McGRATH
We concur:
/S/ JOHN WARNER
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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