Svaleson v. Marshall

July 9 2014
DA 13-0819
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 180N
RAY SVALESON,
Plaintiff and Appellant,
v.
SUZANNE MARSHALL,
Defendant and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDV-2012-88
Honorable James P. Reynolds, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John C. Doubek, Doubek, Pyfer & Fox, LLP, Helena, Montana
For Appellee:
Suzanne Marshall, Self-Represented, Bozeman, Montana
Submitted on Briefs: June 4, 2014
Decided: July 8, 2014
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 The issue before this Court is whether Appellant Ray Svaleson’s (Svaleson) claim
for legal malpractice against Appellee, attorney Suzanne Marshall (Marshall), is barred
by the applicable three-year statute of limitations set forth in § 27-2-206, MCA.
¶3 In 2007 Svaleson was charged with several offenses, including a felony count of
driving under the influence of alcohol (DUI). Marshall was assigned as Svaleson’s
public defender. In April of 2008, Svaleson entered a guilty plea to felony DUI and
related charges.
¶4 After becoming dissatisfied with Marshall’s representation, Svaleson hired
attorney Solomon Neuhardt (Neuhardt). Neuhardt began advising Svaleson in July or
August of 2008. After retaining Neuhardt, Svaleson moved to withdraw his guilty plea
on October 24, 2008. On January 7, 2009, Svaleson filed an affidavit in support of his
Motion to Withdraw Plea of Guilty, in which he stated:
1. At the time Ms. Marshall was my appointed counsel, she told me that I
did not stand a chance and that I should plead guilty to the charge of
felony DUI and get it over with.
2. [Marshall] said that the District Attorney had it in for me and that there
was nothing she could do.
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3. Ms. Marshall did not investigate my prior DUI convictions.
4. I would not have pled guilty if I had known that viable defenses were
available to me. I would have insisted upon going to trial as I am now
trying to do.
¶5 On September 23, 2009, the District Court held an evidentiary hearing on
Svaleson’s Motion to Withdraw Plea of Guilty. On December 16, 2009, the District
Court set aside Svaleson’s original guilty plea and adopted a plea agreement Svaleson
had entered into with the State.
¶6 On February 6, 2012, Svaleson filed a legal malpractice action against Marshall in
the First Judicial District Court, Lewis and Clark County. Marshall moved to dismiss the
Complaint, alleging that Svaleson’s claims were barred by the three-year statute of
limitations set forth in § 27-2-206, MCA. In response to Marshall’s motion, Svaleson
argued that his claim was timely because he was not aware that he had a claim for
malpractice against Marshall until December of 2009 when the District Court ruled that
he could withdraw his guilty plea.
¶7 The District Court converted Marshall’s Motion to Dismiss to a Motion for
Summary Judgment, and granted her Motion on November 7, 2013. The District Court
found that Svaleson’s February 2012 Complaint was not filed within the three-year
statute of limitations prescribed by § 27-2-206, MCA, because “as of July and August of
2008, Svaleson was advised that Marshall had made mistakes in advising him, the same
mistakes he alleges in his legal malpractice claim.” Because Svaleson knew substantially
all of the salient facts about Marshall’s allegedly negligent acts or omissions by August
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2008, the District Court reasoned that Svaleson’s Complaint filed in February 2012 was
not timely.
¶8 We review de novo a district court’s ruling on a motion for summary judgment.
McVey v. USAA Cas. Ins. Co., 2013 MT 346, ¶ 15, 372 Mont. 511, 313 P.3d 191. A
party is entitled to summary judgment if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” M. R. Civ. P.
56(c)(3).
¶9 Section 27-2-206, MCA, provides, in pertinent part: “An action against an
attorney licensed to practice law in Montana . . . 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.”
¶10 With respect to the discovery element of this statute, we have held:
One has discovered, or through the use of reasonable diligence should have
discovered, the act, error, or omission, when one has information of
circumstances sufficient to put a reasonable person on inquiry regarding the
act or omission. This test requires knowledge of the facts essential to the
legal malpractice claim, rather than the discovery of legal theories.
Guest v. McLaverty, 2006 MT 150, ¶ 5, 332 Mont. 421, 138 P.3d 812 (citations omitted).
¶11 Svaleson argues that his claim for legal malpractice was timely filed on February
6, 2012, because the three-year statute of limitations under § 27-2-206, MCA, did not
begin to run until his guilty plea was actually withdrawn by the District Court on
December 16, 2009. Svaleson claims he did not “appreciate” or “discover” Marshall’s
malpractice until that time. However, as the District Court noted in granting summary
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judgment in favor of Marshall, “[A]s of July and August of 2008, Svaleson was advised
that Marshall had made mistakes in advising him, the same mistakes he alleges in his
legal malpractice claim.” Specifically, Svaleson was advised in July and August of 2008
that Marshall had negligently advised him to plead guilty to a felony DUI. It was this
knowledge that prompted Svaleson to move to withdraw his guilty plea in October of
2008. When the District Court allowed Svaleson to withdraw his guilty plea, it may have
validated his belief that Marshall had given him bad advice. However, it did not cause
his claim to accrue at that time or impart any new knowledge essential to his legal
malpractice claim.
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted. It is manifest on the face of the briefs and record before us
that the three-year statute of limitations in § 27-2-206, MCA, bars Svaleson’s claim for
legal malpractice against Marshall.
¶13 Affirmed.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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