                                                                                            04/26/2017


                                          DA 16-0541
                                                                                        Case Number: DA 16-0541

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 95



DUANE RONALD BELANUS,

              Plaintiff and Appellant,

         v.

RAYMOND POTTER, LEO GALLAGHER,
MELISSA BROCH, CATHY MURPHY,
LEWIS AND CLARK COUNTY, and
STATE OF MONTANA,

              Defendants and Appellees.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis And Clark, Cause No. CDV-2013-655
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Duane Ronald Belanus (Self-Represented), Deer Lodge, Montana

                For Appellees:

                        Mitchell A. Young, Gregory L. Bonilla, MACo Defense Services,
                        Helena, Montana



                                                   Submitted on Briefs: February 15, 2017

                                                              Decided: April 26, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Duane Ronald Belanus appeals from the First Judicial District Court’s grant of

Defendants’ motion for summary judgment and the court’s issuance of a pre-filing order

based upon the District Court’s declaration that Belanus is a vexatious litigant. We affirm.

                                          ISSUES

¶2     Did the District Court correctly determine that Belanus’s case is barred by the statute

of limitations?

¶3     Did the District Court correctly determine that Belanus’s case is barred by res

judicata?

¶4     Did the District Court abuse its discretion by finding Belanus to be a vexatious

litigant and issuing a pre-filing order against him?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5     This case originated, as did many others, with Belanus’s June 2009 conviction of

aggravated kidnapping and sexual intercourse without consent of his then-girlfriend, T.C.

A principal piece of evidence presented to the jury in that case was a taped telephone

conversation that occurred a few months before the assault during which a drunken Belanus

threatened T.C. with death and bodily injury. Belanus objected to admission of the audio

recording, asserting that its probative value “was substantially outweighed by the danger

of unfair prejudice.” The District Court overruled the objection, admitted the recording

into evidence, and on June 12, 2009, Belanus was found guilty. On August 13, 2009, he

was sentenced to life in prison without parole. He appealed his sentence and in State v.


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Belanus, 2010 MT 204, 357 Mont. 463, 240 P.3d 1021, we affirmed the District Court’s

admission of the audio recording over Belanus’s objection and held that Belanus failed to

demonstrate that the District Court abused its discretion.

¶6     Subsequently, as we noted in our recent memorandum opinion, Belanus v. State,

2016 MT 262N, ¶ 3, No. DA 14-0782, 2016 LEXIS 923, Belanus sued his victim, the

county attorney, deputy county attorney, law enforcement investigator, sheriff, multiple

sheriff’s deputies, probation officer, both of his attorneys, and a judge. He appealed the

majority of these cases, without success, to the Montana Supreme Court, the Ninth Circuit

Court of Appeals, and the United States Supreme Court.

¶7     One of these subsequent cases was initiated in May 2011 when Belanus filed a

complaint in the United States District Court for the District of Montana, Helena Division,

against T.C., Potter, Gallagher, Broch, Murphy, and Jeffrey Sherlock.          All of these

defendants were participants in Belanus’s 2009 criminal trial. T.C. was the victim, Potter

was the Lewis & Clark County investigator, Gallagher and Broch were the County

prosecutors, and Murphy was the Department of Corrections probation/parole officer who

conducted the pre-sentencing investigation of Belanus. Sherlock was the presiding judge.

¶8     Belanus claimed that T.C. unlawfully taped their conversation, and the taping and

subsequent use of the taped conversation by the defendants violated his Fourth Amendment

constitutional rights and the federal wiretap statute, 18 U.S.C. §§ 2510-2522.           The

defendants moved to dismiss the complaint for failure to state a claim for which relief could

be granted. The federal magistrate analyzed Belanus’s claims under both federal and state

constitutions and federal and state wiretapping statutes.        The magistrate dismissed

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Belanus’s complaint with prejudice, holding that Belanus failed to state a claim under any

of the constitutional or statutory provisions raised and analyzed. Following Belanus’s

objection to the magistrate’s ruling, U.S. District Court Judge Donald W. Molloy

conducted a de novo review and affirmed the magistrate’s order. Belanus v. Chandler,

et al, No. CV 11-00026-H-DWM-RKS, pp. 2-3, (U.S. Dist. Court, Dist. Of Montana,

Helena Division) (Aug. 29, 2011).

¶9     On September 13, 2013, Belanus filed his first complaint and demand for jury trial

in the case before us in the First Judicial District Court. He sought declaratory relief and

nominal, compensatory, and punitive damages for violations of his civil rights and injury

to his person sustained through the actions of defendants Potter, Gallagher, Broch and

Murphy. While summonses were issued at that time, they were not served and no further

activity occurred in the case until November 5, 2015, when Belanus filed a second

complaint and demand for jury trial naming Potter, Gallagher, Broch, Murphy, the State of

Montana, and Lewis & Clark County.

¶10    As he did in the federal case, Belanus alleged in his complaint that T.C. had illegally

recorded their telephone conversation without his knowledge or consent. He claimed the

recording was “out-of-context,” violated the Montana “privacy in communications” statute

at § 45-8-213(1)(c), MCA, and his state and federal constitutional rights.

¶11    Neither Murphy nor the State answered the second complaint and the District Court

determined they had not been properly served; consequently, they are not parties in this

appeal. The remaining defendants, Potter, Gallagher, Broch and the County (hereinafter

County Defendants) moved to dismiss the complaint and sought a designation from the

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court that Belanus is a vexatious litigant. County Defendants argued that Belanus’s

complaint should be dismissed on both statute of limitations and res judicata grounds. They

also urged the District Court to impose a pre-filing order on Belanus. On July 26, 2016,

after converting the County Defendants’ motion to dismiss to a motion for summary

judgment under M. R. Civ. P. 12(d) and 56, the District Court granted summary judgment

to the County Defendants, declared Belanus a vexatious litigant, and imposed a pre-filing

order on him.

¶12    Belanus filed a timely appeal.

                               STANDARD OF REVIEW

¶13    We review a district court’s summary judgment ruling de novo, applying the same

M. R. Civ. P. 56 criteria used by the district court. Summary judgment is appropriate only

when no genuine issue of material fact exists and the moving party is entitled to judgment

as a matter of law. M. R. Civ. P. 56(c). Once the moving party accomplishes this, the

burden shifts to the opposing party to prove, by more than mere denial and speculation,

that a genuine issue of material fact exists and that the moving party is not entitled to

judgment as a matter of law. Ehrman v. Kaufman, 2010 MT 284, ¶ 10, 358 Mont. 519, 246

P.3d 1048 (internal citations omitted).

¶14    Whether a district court correctly applied the statute of limitations is a question of

law we review for correctness. Estate of Woody v. Big Horn Cnty., 2016 MT 180, ¶ 7, 384

Mont. 185, 376 P.3d 127 (internal citations omitted).        We review a district court’s

application of the doctrine of res judicata for correctness. In re Estate of Benjamin, 2014

MT 241, ¶ 6, 376 Mont. 300, 339 P.3d 1232.

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¶15    We review a pre-filing order entered against a vexatious litigant for abuse of

discretion. The question under this standard is not whether we would have reached the

same decision as the trial judge, but whether the trial judge acted arbitrarily without

conscientious judgment or exceeded the bounds of reason. Boushie v. Windsor, 2014 MT

153, ¶ 8, 375 Mont. 301, 328 P.3d 631 (internal citations omitted).

                                      DISCUSSION

¶16    Did the District Court correctly determine that Belanus’s case is barred by the
       statute of limitations?

¶17    A statute of limitations begins to run “when the claim or cause of action accrues.”

Section 27-2-102(2), MCA. A claim accrues “when all elements of the claim or cause exist

or have occurred, the right to maintain an action on the claim or cause is complete, and a

court or other agency is authorized to accept jurisdiction of the action.” Section

27-2-102(1)(a), MCA.

¶18    The claims Belanus raises are constitutional torts and are subject to the three-year

statute of limitations set forth in § 27-2-204(1), MCA. Sunburst Sch. Dist. No. 2 v. Texaco,

Inc., 2007 MT 183, ¶ 63, 338 Mont. 259, 165 P.3d 1079. The recording of the telephone

conversation at the center of this case was admitted into evidence during Belanus’s criminal

trial on June 12, 2009; as such, his tort claim accrued on that day. The three-year statute

of limitations expired on June 12, 2012. Belanus filed his original complaint in the case

before us in September 2013, more than four years after his cause of action accrued. As

noted above, there is no record that the September complaint was served. He filed his




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second complaint, which triggered defendant responses, in November 2015, more than six

years after his claim accrued.

¶19    Belanus argues that based upon his federal action, § 27-2-407, MCA, provided him

with an additional year in which to file his state district court claim. Belanus is incorrect.

¶20    Section 27-2-407, MCA, provides, in relevant part:

       If an action is commenced within the time limited for the action and . . . the
       action is terminated in any other manner than by a voluntary discontinuance,
       a dismissal of the complaint for neglect to prosecute the action, or a final
       judgment upon the merits, the plaintiff . . . may commence a new action for
       the same cause after the expiration of the time limited and within 1 year after
       a reversal or termination. (Emphasis added.)

¶21    Belanus brought his federal action on these allegations in May 2011; consequently,

his federal action was commenced “within the time limited for the action.” Subsequently,

however, his federal action was terminated on a final judgment upon the merits. A “final

judgment upon the merits” is one of three ways in which an action may be terminated that

will not provide a one-year extension of the statute of limitations. Therefore, under the

plain language of this statute, the statute does not apply to Belanus’s case and did not

extend the statutory three-year limitation.

¶22    As § 27-2-407, MCA, is inapplicable, and Belanus did not file his cause of action

with the District Court before June 12, 2012, the District Court did not err in determining

that Belanus’s claim is barred by the applicable statute of limitations.

¶23    Did the District Court correctly determine that Belanus’s case is barred by res
       judicata?

¶24    The State argues that the underlying facts of Belanus’s complaint and the legal

theories upon which he relies are identical to those raised and decided in the federal suit

                                              7
filed by Belanus against the same parties and that relitigation of those matters in this case

is barred by the doctrine of res judicata.

¶25    The doctrine of res judicata prohibits relitigation of a cause of action once a final

judgment has been entered. “Once there has been a full opportunity to present an issue for

judicial decision in a given proceeding, the determination of the court in that proceeding

must be accorded finality as to all issues raised or which fairly could have been raised, else

judgments might be attacked piecemeal and without end.” Olympic Coast Inv., Inc. v.

Wright, 2005 MT 4, ¶ 26, 325 Mont. 307, 105 P.3d 743 (internal citations omitted). The

doctrine of res judicata applies when the following elements are satisfied: (1) the parties

or their privies are the same; (2) the subject matter of the action is the same; (3) the issues

related to the subject matter are the same; and (4) the capacities of the person are the same

in reference to the subject matter and the issues between them. Olympic Coast Inv., ¶ 26.

¶26    It is undisputed that Belanus named Potter, Gallagher, and Broch as defendants in

his federal action. Additionally, Belanus does not dispute that Potter, Gallagher, and Broch

are named in this case in the same capacities in which they were named in the federal

action. Therefore, factors (1) and (4) are satisfied. Belanus asserts, however, that the

subject matter and the legal issues presented in the case before us are different from those

presented and decided in the federal case. We disagree.

¶27    In the complaint in the case before us, Belanus alleged that T.C. unlawfully recorded

a telephone conversation in which he drunkenly threatened her. T.C. then allowed this

recording to be distributed to the county investigator, county attorneys, and a

probation/parole officer who used the recording to prosecute him. He claimed this was a

                                              8
violation of his Article II, Sections 10 and 11 Montana constitutional rights and the

Montana privacy in communication statute, § 45-8-213, MCA.

¶28    As noted above, the federal court analyzed Belanus’s claims under the federal and

state constitutions as well as the Federal Wiretapping Act, 18 U.S.C. §§ 2510-2522, and

§ 45-8-213, MCA. The federal court concluded Belanus had failed to state a claim under

any of the legal theories raised. Consequently, Belanus’s claims in the case before us that

T.C.’s recording of the telephone call violated his state constitutional rights and the state

statute protecting private communications have been decided by the federal court and may

not be relitigated. The District Court did not err when it determined that Belanus’s claims

against Potter, Gallagher, and Broch were barred by res judicata. As for Belanus’s claim

against the County, who was not a party to the federal action and therefore is not protected

by res judicata, it is barred by the statute of limitations as discussed above.

¶29    Did the District Court abuse its discretion by finding Belanus to be a vexatious
       litigant and issuing a pre-filing order against him?

¶30    Belanus argues the District Court abused its discretion when it declared him a

vexatious litigant and imposed a pre-filing order against him.          The District Court’s

pre-filing order prohibits Belanus from filing any complaint, petition, or other pleading of

his own creation that purports to initiate a new cause of action without the express written

permission of the District Court. The Clerk of the District Court is directed to present any

attempted filing by Belanus to the District Court for review.

¶31    Article II, Section 16 of the Montana Constitution guarantees every person access

to the courts of the state. However, that right is not absolute and may be reasonably


                                               9
restricted upon a showing of a “legitimate state interest.” Motta v. Granite Cnty. Comm’rs.,

2013 MT 172, ¶ 18, 370 Mont. 469, 304 P.3d 720. In Motta, we set forth the factors used

by the Ninth Circuit Court of Appeals to review pre-filing orders entered against a

vexatious litigant, which include: (1) whether the litigant was given notice and a chance

to be heard before an order was entered; (2) whether the trial court has compiled “an

adequate record for review”; (3) whether the trial court has made substantive findings about

the frivolous or harassing nature of the plaintiff’s litigation; and (4) whether the vexatious

litigant order is “narrowly tailored to closely fit the specific vice encountered.” Motta, ¶ 20

(citing Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007)).

¶32    The Ninth Circuit also employs a five-factor test to examine whether a pre-filing

order is justified: (1) the litigant’s history of litigation and, in particular, whether it entailed

vexatious, harassing, or duplicative lawsuits; (2) the litigant’s motive in pursuing the

litigation, e.g., whether the litigant has an objective good faith expectation of prevailing;

(3) whether the litigant is represented by counsel; (4) whether the litigant has caused

needless expense to other parties or has posed an unnecessary burden on the courts and

their personnel; and (5) whether other sanctions would be adequate to protect the courts

and other parties. Motta, ¶ 20.

¶33    Belanus asserts that the District Court failed to satisfy several of these requisite

factors, including the requirement to “compile an adequate record.” Contrary to this claim,

however, the District Court, in its order, acknowledged the 2011 federal case and the case

before it at the time. It further noted that:



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              Since his conviction, Belanus has filed numerous pro se lawsuits
       against his victim, the prosecutors, law enforcement officers, probation
       officer, and judge, all stemming from his criminal conviction. Weaving
       through the various actions and the procedurally unrecognizable pleadings
       that fill each file is an arduous process, albeit necessary to address
       Defendants’ motion to have Belanus designated a vexatious litigant.

¶34    The District Court specifically referenced nine other civil lawsuits that Belanus filed

in the District Court related to his criminal case. The presiding judge in this case, Judge

Kathy Seeley, presided over several of these previous cases. The court cited seven of those

cases by cause number and provided a short summary and the disposition or status of each

case. The court referenced District Court Judge Sherlock’s observation in Belanus’s post-

conviction relief case that Belanus’s motion practice involved, “a never-ending torrent of

procedurally deficient and incomprehensible filings.” Additionally, the District Court

expressly noted this Court’s order of May 24, 2016, in Belanus’s post-conviction appeal

(Belanus v. State, 2016 MT 262N, No. DA 14-0782, 2016 LEXIS 923) in which we stated:

“Belanus’ frivolous motions have placed a strain on judicial resources and his practice is

making a mockery of the judicial system. This Court declines to entertain any more

motions from Belanus in this appeal.”

¶35    Relying on DeLong v. Hennessey, 912 F.2d 1144 (9th Cir. 1990), Belanus claims

the District Court was required to set forth the entirety of his past case and motion filings

without which the District Court could not justify enjoining him from future filings. In

DeLong, the Ninth Circuit initially stated “An adequate record for review should include a

listing of all the cases and motions that led the district court to conclude that a vexatious

litigant order was needed.” DeLong, 912 F.2d at 1147. In this case, providing such a


                                             11
detailed list as suggested in DeLong would be a staggering task. DeLong further states that

“[a]t the least, the record needs to show . . . that the litigant’s activities were numerous and

abusive.” DeLong, 912 F.2d at 1148. The District Court’s review of Belanus’s past

litigation cases and practices and its resulting order are adequate to support its

determination that Belanus is a vexatious litigant.

¶36    Belanus further argues, in accordance with DeLong, that the District Court made no

factual finding that his individual claims were frivolous. In the alternative, he asserts that

the court did not find that the number of complaints he filed was inordinate or that his

claims show a pattern of harassment. As noted above, the District Court determined that

all of Belanus’s multiple cases were attempts to re-litigate his 2009 criminal conviction

that had been upheld on appeal. The court referenced this Court and District Court Judge

Sherlock’s conclusions that Belanus’s motions and cases were frivolous and harassing.

The District Court noted U.S. District Court Judge Molloy’s certification that any appeal

of the federal decision that Belanus may attempt “would not be taken in good faith,” i.e., a

direct reference to one of the Motta factors for examining whether a pre-filing order is

justified. While not expressly referenced in the court’s order, the federal court’s order of

a strike against Belanus for a frivolous filing supports the District Court’s determination

that the nature of Belanus’s litigation is frivolous and harassing.

¶37    Lastly, Belanus challenges the breadth of the pre-filing order prohibiting him from

initiating a new cause of action without the express permission of the court. The District

Court observed, “Facing a sentence of life without parole, Belanus has little incentive to

refrain from conjuring up various allegations against those involved with his conviction.”

                                              12
We agree. Based upon this observation and the voluminous record of legal cases Belanus

has produced since his criminal proceeding, the District Court’s pre-filing order was

tailored to fit Belanus’s “specific vice.” Motta, ¶ 20.

                                      CONCLUSION

¶38    For the foregoing reasons, we affirm the District Court’s July 26, 2016 Order. The

court correctly applied the statute of limitations and doctrine of res judicata. The District

Court did not abuse its discretion in finding Belanus a vexatious litigant and imposing a

pre-filing order. The pre-filing order satisfied the Motta factors.



                                                  /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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