December 7 2010
DA 10-0276
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 256
KIRK WAYNE SPENCER,
Petitioner and Appellant,
v.
ALLEN BECK,
Respondent and Appellee.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DV 10-13
Honorable E. Wayne Phillips, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kirk Wayne Spencer (Self-Represented), Deer Lodge, Montana
For Appellee:
Allen Beck (Self-Represented), Lewistown, Montana
Submitted on Briefs: October 27, 2010
Decided: December 7, 2010
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Kirk Spencer (Spencer) appeals the order of the Tenth Judicial District Court,
Fergus County, dismissing his complaint alleging legal malpractice against Attorney
Allen Beck (Beck). We reverse and remand.
ISSUE
¶2 Spencer raises three issues for review, but we conclude his first issue is
dispositive. A restatement of the dispositive issue is whether the District Court erred in
construing Spencer’s legal malpractice complaint as a petition for postconviction relief,
and dismissing it as untimely.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On February 3, 2010, Spencer filed a Complaint and Demand for Jury Trial in the
Tenth Judicial District Court, Fergus County. In his complaint, Spencer alleges gross
negligence on the part of Beck, his court-appointed criminal defense attorney. Spencer
complains that Beck, who represented Spencer in his criminal trial, was late in filing his
brief to this Court on direct appeal. Spencer also asserts that Beck represented he would
continue to pursue federal postconviction relief for Spencer, but did not do so. Spencer
claims that he is now time-barred from pursuing any postconviction relief claims of
ineffective assistance of counsel in either state or federal court. The complaint prays for
compensatory damages for emotional distress, lost earning capacity, and lost opportunity.
¶4 Because Beck failed to file an answer, Spencer filed a motion for default judgment
on March 24, 2010. Beck concurrently filed a M. R. Civ. P. 12(b)(6) motion to dismiss
for failure to state a claim for which relief can be granted (hereinafter 12(b)(6) motion).
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On April 1, 2010, prior to the District Court ruling on either motion, Beck filed a general
answer denying the allegations in Spencer’s complaint. Beck’s 12(b)(6) motion was
denied by the Clerk of the District Court on April 12, 2010, because Beck failed to file an
accompanying brief. The next day, the District Court ordered a preliminary pretrial
scheduling conference to be held on May 4, 2010. The District Court did not rule on
Spencer’s motion for default judgment.
¶5 On May 3, 2010, one day before the scheduling conference was to take place, and
without notice to either party, the District Court sua sponte dismissed Spencer’s
complaint. Spencer timely appeals.
STANDARD OF REVIEW
¶6 The procedural background of this case is anomalous. After the Clerk of the
District Court denied Beck’s 12(b)(6) motion, the District Court, on its own motion and
without notice to either party, converted Spencer’s complaint into a petition for
postconviction relief and dismissed it as untimely under § 46-21-102(1)(b), MCA, which
provides a one-year statute of limitation for postconviction relief petitions. We review
the District Court’s sua sponte dismissal of Spencer’s complaint under the standard of
review for a district court’s dismissal of a complaint pursuant to M. R. Civ. P. 12(b)(6).
¶7 We review de novo a district court’s ruling on a 12(b)(6) motion. Plouffe v. State,
2003 MT 62, ¶ 8, 314 Mont. 413, 66 P.3d 316. We will affirm a district court’s dismissal
of a complaint for failure to state a claim only if “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim that would entitle him to relief.”
McKinnon v. Western Sugar Coop. Corp., 2010 MT 24, ¶ 12, 355 Mont. 120, 225 P.3d
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1221 (citing Jones v. Mont. Univ. Sys., 2007 MT 82, ¶ 15, 337 Mont. 1, 155 P.3d 1247).
A district court’s determination of whether a complaint states a claim is a conclusion of
law that we review for correctness. Plouffe, ¶ 8.
DISCUSSION
¶8 Did the District Court err in construing Spencer’s complaint alleging legal
malpractice as a claim for postconviction relief and dismissing it as untimely?
¶9 On its own motion, the District Court dismissed Spencer’s complaint stating that,
while the complaint “presents aspects of a malpractice claim,” it “more closely resembles
a petition for post-conviction relief, alleging damages resulting from alleged ineffective
assistance of counsel.” The court went on to conclude Spencer’s complaint was time-
barred under § 46-21-102(1)(b), MCA, which states that a postconviction relief petition
may be filed within one year of the final judgment. On appeal, Spencer capably argues
that his complaint was properly and timely filed as a legal malpractice claim, and was not
a petition for postconviction relief. Beck’s cursory response, which cites no legal
authority, merely states that the District Court was correct and urges this Court to affirm.
¶10 In considering a 12(b)(6) motion, the complaint is construed in the light most
favorable to the plaintiff, and all allegations of fact are taken as true. Meagher v.
Butte-Silver Bow City-County, 2007 MT 129, ¶ 13, 337 Mont. 339, 160 P.3d 552. A
12(b)(6) motion has the effect of admitting all well-pled allegations in the complaint. Id.
Therefore, in ruling on a 12(b)(6) motion, a district court may only examine whether a
claim has been adequately stated; a complaint should not be dismissed unless it appears
“beyond a reasonable doubt that the plaintiff can prove no set of facts which would
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entitled him to relief.” Plouffe, ¶ 13 (quoting Hoveland v. Petaja, 252 Mont. 268,
270-71, 893 P.2d 392, 393 (1992)); McKinnon, ¶ 12.
¶11 To establish a claim for legal malpractice, a plaintiff must commence the action
within the time permitted and state sufficient facts in the complaint to show that he could
be entitled to the relief requested. Section 27-2-206, MCA, sets the time limits for filing
a legal malpractice claim:
Actions for legal malpractice. 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,
whichever occurs last, but in no case may the action be commenced after 10
years from the date of the act, error, or omission.
¶12 In Ereth v. Cascade County, 2003 MT 328, 318 Mont. 355, 81 P.3d 463 (Cotter &
Regnier, JJ., concurring in part and dissenting in part), we analyzed the question of when
the statute of limitations begins to run on a legal malpractice claim that stems from
criminal representation. In interpreting an issue of first impression in Montana, we
adopted the “two-track” approach, meaning a criminal defendant can simultaneously
pursue a claim for postconviction relief in criminal court and a claim for legal
malpractice in civil court. Ereth, ¶¶ 19, 26. Thus, we held that a criminal defendant
“must file a malpractice complaint within three years of discovering the act, error or
omission,” regardless of whether postconviction relief is sought or granted. Id. at ¶ 26.
¶13 To recover damages in a legal malpractice action, a plaintiff must establish that:
(1) the professional owed him or her a duty of care; (2) the professional breached this
duty by failure to use reasonable care and skill; (3) the plaintiff suffered an injury; and (4)
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the professional’s conduct was the proximate cause of the injury. Hauschulz v. Michael
Law Firm, 2001 MT 160, ¶ 11, 306 Mont. 102, 30 P.3d 357.
¶14 We conclude that it is manifest within the four corners of Spencer’s complaint that
he makes sufficient factual allegations of legal malpractice to withstand a 12(b)(6)
dismissal. First, Spencer alleges he had an attorney-client relationship with Beck.
Second, Spencer claims that Beck was grossly negligent by failing to pursue
postconviction relief for Spencer in federal court after promising to do so. Finally, as to
the third and fourth elements, Spencer asserts Beck’s failure to pursue federal
postconviction relief deprived Spencer of his constitutional right to challenge his
conviction, and he alleges deprivation of liberty, emotional damages, and loss of earning
capacity during his continued imprisonment. While we do not opine on the merits of this
claim, the allegations contained within the four corners of Spencer’s complaint are
sufficient to state a claim for which relief can be granted. Moreover, there is no dispute
that Spencer’s complaint was filed within three years of Beck’s alleged malpractice, and
was therefore timely.
¶15 In its order dismissing Spencer’s complaint, the District Court acknowledges that
Spencer’s complaint “presents aspects of a malpractice claim,” but, rather than address
the malpractice claim advanced by Spencer, the District Court sua sponte recharaterized
the claim as one for postconviction relief. We conclude this was error. The allegations
of gross negligence raised in Spencer’s complaint are not of the type typically raised in a
petition for postconviction relief. Spencer did not allege his sentence was illegal, nor did
he assert his conviction should be vacated, set aside, or corrected. He did not seek
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collateral relief from his sentence. In fact, Spencer’s complaint plainly states that he is
time-barred from pursuing postconviction relief at either the state or federal levels
because of Beck’s gross negligence. It being clear on the face of Spencer’s complaint
that he is alleging legal malpractice, the District Court erred when it sua sponte converted
Spencer’s complaint to a petition for postconviction relief and dismissed it as untimely
under § 46-21-102(1)(b), MCA.
¶16 Finally, although it is unnecessary to resolve Spencer’s remaining two issues in
light of the foregoing holding, we caution courts that a sua sponte decision to raise a time
bar or recharacterize a complaint for dismissal purposes invokes due process
considerations. When a court is inclined to make such a dispositive ruling on an issue not
raised by the parties, the court must first “afford the parties fair notice and an opportunity
to present their positions before acting on its own initiative to dismiss a petition as
untimely.” Davis v. State, 2008 MT 226, ¶ 24, 344 Mont. 300, 187 P.3d 654.
CONCLUSION
¶17 In sum, though we express no view on the underlying merits of Spencer’s legal
malpractice claim, we hold that the District Court erred in sua sponte recharacterizing
Spencer’s complaint as a petition for postconviction relief and dismissing it as untimely.
We therefore reverse and remand for further proceedings consistent with this Opinion.
/S/ PATRICIA COTTER
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We concur:
/S/ MIKE McGRATH
/S/ BRIAN MORRIS
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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