                            No.    92-485
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1993



CHRISTIAN HANS MOLINE,
          Plaintiff and Appellant,
     v.
A. E. ANDERSON,
          Defendant and Respondent.



APPEAL FROM:   District Court of the Twelfth Judicial District,
               In and for the County of Chouteau,
               The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               LaRue Smith, Attorney at Law,
               Great Falls, Montana
          For Respondent:
               Gorham E. Swanberg, Swanberg, X:oby   &   Swanb
               Great Falls, Montana


                             Submitted on Briefs:    March 11, 1993
                                            Decided: August 17, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Plaintiff appeals from a decision of the District Court of the
Twelfth Judicial District in Chouteau County, Montana, which
granted defendant A. E. Anderson's motion to dismiss the action
against him.      The court concluded that the complaint failed to
state a claim against Anderson.           Moreover, the court determined
that plaintiff's malpractice claim against Anderson was barred by
the three-year statute of limitations set forth in 5 27-2-206, MCA.
We affirm.
     The dispositive issue on appeal is whether plaintiff's claims
against Anderson were barred by the statute of limitations?
     Chris Moline died on July 1, 1981, and was survived by his
wife Bonnie, and his two sons, Christian and Michael Moline.                In
his Last Will and Testament, decedent substantially disinherited
his wife and left his residuary estate to his two sons to divide
equally.   Christian, the plaintiff in this case, was 12 years old
when his father died.
     Prior to decedent's death, Chris and Bonnie Moline were
involved     in   proceedings    to     dissolve   their    marriage.     The
dissolution action was          never    completed.        Attorney   Anderson
represented Bonnie in the dissolution proceedings.
     On July 15, 1981, decedent's will was admitted to probate and
William A. Meeks, Jr., was appointed personal representative. On
July 20, 1981, Anderson filed a creditor's claim against decedent's
estate in the amount of $2,371.15 for costs and fees incurred in
the representation of Bonnie in the dissolution of her marriage to
Chris Moline.    On August 28, 1981, Anderson was paid $2,371.15 in
attorney fees from decedent's estate.
     Subsequently, Anderson represented Bonnie in estate, probate
and guardianship matters.   Pursuant to petitions filed by Anderson
for Bonnie, the court ordered the personal representative of
decedent's estate to distribute one-third of the augmented estate
to Bonnie, and the court appointed Bonnie as plaintiff's guardian.
     On March 14, 1983, Anderson petitioned the court, on Bonnie's
behalf, to order the personal representative, Meeks, to appear and
show cause for failures to account and perform the statutory duties
of estate administration. The District Court granted the petition
to show cause and set a hearing for April 13, 1983.     On April 8,
1983, Anderson was informed by the attorney representing Meeks that

the account was complete.     The show cause hearing was never held.
On September 12, 1983, Meeks filed a final account of the estate.
     On October 31, 1991, at the age of 23, plaintiff filed a
complaint in the Twelfth Judicial District Court and named his
mother and Anderson as defendants.    Plaintiff asserted two claims
against defendant Anderson.    Those claims are the subject of this
appeal.
     First, plaintiff alleged that Anderson's legal representation
did not comport with the standard of care required by the legal
profession.     Plaintiff asserted that because Anderson was the
attorney for his guardian, Bonnie, Anderson was also the attorney
for plaintiff because he was a minor.       Plaintiff asserted that
Anderson had a duty to provide for plaintiff's best interest; and

                                  3
when Anderson failed or refused in 1983 to pursue the order
demanding Meeks        to show cause for his maladministration of
decedent's estate, Anderson "wrongfully abandonedvvplaintiff's
rights, causing him loss and damages.
     In his second claim, plaintiff alleged that Anderson was
illegally paid $2,317.15 in fees from decedent's estate.                    He
demanded that Anderson account for the funds that he wrongfully
took from the estate and that he return the funds to plaintiff.
     On December 4, 1991, Anderson filed a Rule 12(b)(6)            motion to
dismiss plaintiff's claims against him. A hearing was held, and on
July 29, 1992, the court granted Anderson's motion to dismiss.
     In its order, the court determined that the                     "wrongful
abandonment" claim against Anderson was a malpractice claim.               The
court explained        that plaintiff's malpractice          action    against
Anderson       could   not   succeed    because    it   is    the     client's
responsibility (Bonnie's responsibility), not the attorney's, to
pursue     a     maladministration      action     against     a      personal
representative.        Moreover, the court concluded that the legal
malpractice      claim was    barred    by   the three-year        statute of
limitations set forth in      §   27-2-206, MCA.
    The court dismissed plaintiff's second claim that Anderson
illegally took funds by explaining that a claim for accountability
of funds paid through a guardianship should be made against the
guardian and not against the attorney representing the guardian.
    Plaintiff appealed the final judgment to the extent that it
dismissed his claims against Anderson. Accordingly, Bonnie was not
made a party to this appeal.
     On appeal, plaintiff asserts that the District Court erred
when it characterized his "wrongful abandonmentvvclaim against
Anderson as a malpractice claim, and then concluded that the claim
was barred by the statute of limitations.         Further, plaintiff
contends that the court erred when it determined that the dispute
over the $2,317.15 was a guardianship matter.      Plaintiff asserts
that his complaint stated a claim against Anderson for the illegal
taking of funds which belonged to plaintiff.
     Although the District Court dismissed the action against
Anderson by addressing the merits of the statements made in the
complaint under a Rule 12(b) (6) motion, the dispositive issue on
appeal is whether the plaintiff's claims were barred by the
statutes of limitations.
     When determining whether a claim is barred by the statute of
limitations, the court must first look to the substance of the
complaint to determine which statute of limitations applies. Weible

v. Ronan State Bank (1989), 238 Mont. 235, 776 P.2d 837.   A review of

plaintiff's complaint in this case reveals that plaintiff made two
claims   against Anderson;     specifically, he    alleged   a   legal
malpractice claim and an allegation that Anderson wrongfully
converted funds.
       Section 27-2-206, MCA, sets forth the statute of limitations
for legal malpractice actions. Section 27-2-206, MCA requires that
a lawsuit for legal malpractice:
       [Mlust be commenced within 3 years after the plaintiff
       discovers or [when the plaintiff] 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.
       Because plaintiff was a minor in 1983, the time when he
alleges      Anderson      negligently       represented     him   by    wrongfully
abandoning the show cause order, 5                    27-2-401,    MCA, applies.
According to 5 27-2-401, MCA, when a minor is entitled to bring a
cause of action, the statute of limitations for the action is
tolled until the minor reaches the age of majority. Upon reaching
majority, the individual has the full statutory period to commence
the suit.        In this case, the statutory period allowed for the
malpractice claim was three years because there is no evidence in
the    record which            indicates that the      "reasonable diligencev1
exception applies to plaintiff.
       Plaintiff turned eighteen in 1985.             He commenced his lawsuit
against Anderson in 1991, approximately six years after he reached
majority.          Accordingly,       we     affirm    the    District      Court's
determination that plaintiff's legal malpractice claim is barred by
the three-year statute of limitations.
       Section      27-2-207(2),      MCA,    sets    forth    the      statute   of
limitations for the illegal taking of funds or conversion. A t o
                                                            cin

Enterprises, Inc. v. McCalla    (Mont. 1993) , 50 St. Rep. 743.             Section
27-2-207(2), MCA, requires that an action for "taking, detaining,
or injuring any goods or chattels, including actions for the
specific recovery of personal property," must be commenced within
two years.
     Plaintiff asserts that Anderson converted funds in 1981.
Section 27-2-401, MCA, tolled the statute of limitations for
conversion until plaintiff reached the age of majority.           As

explained above, plaintiff turned eighteen in 1985.     He filed his
complaint in 1991--approximately six years after he reached the age
of majority.   We hold that plaintiff's claim to recover funds that
he alleges Anderson took from decedent's estate is barred by the
two-year statute of limitations.
     The decision of the District Court to dismiss the action
against Anderson is affirmed.
     Pursuant to Section I, Paragraph 3 ( c ) , Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




We concur:
                                    August 17, 1993

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


La Rue Smith
Attorney at Law
606-5th Ave. No.
Great Falls, MT 59401

Gorbam E. S-wanberg
Swanberg, Koby & Swanberg
P.O. Box 2567
Great Falls, MT 59403


                                                ED SMITH
                                                CLERK OF THE SuPRE?.%E COURT
                                                STATE OF PONTANA / j           1
