June 14 2011
DA 10-0534
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 137N
VICTOR C. FOURSTAR, Jr.,
Plaintiff and Appellant,
v.
MARY L. ZEMYAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and For the County of Roosevelt, Cause No. DV-09-53
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Victor C. Fourstar, Jr. (Self-Represented), Waymart, Pennsylvania
For Appellee:
Mary L. Zemyan (Self-Represented), Wolf Point, Montana
Submitted on Briefs: May 3, 2011
Decided: June 14, 2011
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court’s 1996 Internal
Operating Rules, as amended in 2006, the following decision shall not be cited and does
not serve as precedent. It shall be filed as a public document with the Clerk of the
Supreme Court and 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 Victor Fourstar appeals an Order of the District Court for the Fifteenth Judicial
District, Roosevelt County, granting Mary Zemyan’s motion to dismiss Fourstar’s action
against her for lack of jurisdiction. We affirm in part, reverse in part, and remand for
further proceedings consistent with this Opinion.
Factual and Procedural Background
¶3 In June 2009, Fourstar filed a handwritten pro se Complaint against Zemyan,
Fourstar’s former attorney, but the District Court rejected the Complaint and other
motions filed by Fourstar for failure to comply with the District Court’s procedural rules
on typing and spacing. On March 22, 2010, Fourstar filed a 45-page typewritten pro se
Complaint alleging, among other things, that Zemyan committed legal malpractice and
constructive fraud in her representation of Fourstar, and that Zemyan breached her
fiduciary duty to Fourstar.
¶4 Fourstar had hired Zemyan to represent him in several cases including a
malpractice case Fourstar had filed against his federal defenders in a criminal action, a
civil rights complaint against a former tribal criminal investigator, and a federal habeas
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corpus claim. Fourstar alleged in his Complaint that Zemyan missed various filing
deadlines, withheld files from Fourstar, colluded with Fourstar’s adversaries in one
proceeding, and overcharged him for her legal representation. He further alleged that
Zemyan’s negligence resulted in the dismissal of his claims. Along with his demands for
compensatory and punitive damages, Fourstar asked the District Court to compel the
Office of Disciplinary Counsel (ODC) and the Commission on Practice (COP) to suspend
Zemyan’s license to practice law.
¶5 Zemyan filed a Motion to Dismiss for Lack of Jurisdiction on May 10, 2010,
alleging that Fourstar filed his Complaint because he did not receive a favorable response
from the ODC regarding the ethics complaint Fourstar filed against Zemyan in January
2009. Zemyan points out in her motion that the District Court lacks subject matter
jurisdiction over this case because this Court possesses exclusive jurisdiction in all
matters involving the conduct and disciplining of all persons practicing law in Montana.
¶6 In its September 29, 2010 Order consisting of only two sentences, the District
Court granted Zemyan’s motion, dismissed this case with prejudice, and sealed the entire
file. Fourstar now appeals the District Court’s Order.
Discussion
¶7 Whether a court has subject matter jurisdiction is a question of law which we
review for correctness. Billings Gazette v. State of Montana, 2008 MT 287, ¶ 6, 345
Mont. 385, 190 P.3d 1126 (citing Boe v. Court Adm’r for the Mont. Judicial Branch,
2007 MT 7, ¶ 5, 335 Mont. 228, 150 P.3d 927). As we noted in Billings Gazette, the
preamble to the Montana Rules for Lawyer Disciplinary Enforcement (RLDE)
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unequivocally states that this Court possesses original and exclusive jurisdiction and
responsibility under Article VII, Section 2(3), of the Montana Constitution and the
provisions of Title 37, chapter 61, Montana Code Annotated, in addition to its inherent
jurisdiction, in all matters involving the conduct and disciplining of persons admitted to
practice law in Montana. Billings Gazette, ¶ 9.
¶8 In Billings Gazette, after an attorney admitted to violating various rules of
professional conduct, she was publicly censured by this Court. However, under the
RLDE, the actions which constituted conduct violations remained confidential. The
Gazette sought to obtain a copy of the disciplinary file, but the ODC and the COP refused
to provide it citing the confidentiality requirements for lawyer disciplinary proceedings
before the ODC and the COP. The Gazette filed suit in the First Judicial District Court,
Lewis and Clark County. The District Court determined that it did not have the authority
to order the ODC or the COP to release documents that are protected by the rules
promulgated by this Court under its constitutional authority, thus the court dismissed the
Gazette’s petition on the ground that it lacked subject matter jurisdiction. Billings
Gazette, ¶¶ 1-5. On appeal, we affirmed noting that “ ‘no Montana district judge has
jurisdiction to sit in the judgment of the Supreme Court of Montana.’ ” Billings Gazette,
¶ 10 (citing Boe, ¶ 11; Goetz v. Harrison, 153 Mont. 403, 457 P.2d 911 (1969)).
¶9 Similarly, in the case sub judice, we hold that the District Court was correct in
concluding that it does not have the authority to compel the ODC or the COP to take
action of any kind. Thus, we affirm the District Court on this issue. However, we further
hold that the District Court does have jurisdiction over the legal malpractice claims that
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Fourstar raised in his Complaint. Thus, the court was incorrect in dismissing Fourstar’s
entire action against Zemyan without at least considering Fourstar’s Complaint and filing
appropriate findings of fact and conclusions of law as to the malpractice claims.
¶10 This Court has on many occasions stated that a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no
set of facts which would entitle him to relief. Sinclair v. Burlington Northern & Santa Fe
Ry., 2008 MT 424, ¶ 25, 347 Mont. 395, 200 P.3d 46 (citing M. R. Civ. P. 12(b)(6);
Reidelbach v. Burlington Northern & Santa Fe Ry., 2002 MT 289, ¶ 14, 312 Mont. 498,
60 P.3d 418). Moreover, when considering a motion to dismiss under M. R. Civ. P.
12(b)(6), all well-pleaded allegations and facts in the complaint are admitted and taken as
true, and the complaint is construed in a light most favorable to the plaintiff. Sinclair,
¶ 25; see also Western Security Bank v. Eide Bailly LLP, 2010 MT 291, ¶ 55, 359 Mont.
34, 249 P.3d 35.
¶11 Based on the foregoing, we hold that the District Court erred in dismissing
Fourstar’s Complaint insofar as the Complaint alleged professional negligence against
Zemyan. Accordingly, we reverse the District Court’s order of dismissal to that extent
and we remand this case to the District Court with instructions that the court carefully
review Fourstar’s Complaint and that it conduct such further proceedings as are necessary
to resolve Fourstar’s claims of professional negligence against Zemyan. Any such
resolution shall include the entry of appropriate findings of fact and conclusions of law.
¶12 Affirmed in part, reversed in part and remanded for further proceedings consistent
with this Opinion.
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/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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