                                No. 86-419

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



TERRY LEE KERR,
                 Plaintiff and Appellant,
         -vs-
GARY E. WILCOX, RALPH ALLEN BECK,
and JOHN L. ADAMS, Court Appointed
Attorneys,
              Defendants and Respondents.



APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Terry Lee Kerr, pro se, Carnelian Bay, California
         For Respondent :
                 Crowley Law Firm; Ronald Loddegs, Billings, Montana
                 Gary E. Wilcox, Billings, Montana



                                    Submitted on Briefs: Dec. 18, 1986
                                      Decided:   February 9, 1987
     FEe 9 - 1987
Filed:
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      This is a pro se appeal from the District Court of the
Thirteenth Judicial District, in and for the County of
Yellowstone, State of Montana.     Appellant appeals from a
summary judgment granted defendants.    Appellant had sought
actual and punitive damages in the amount of $30,000,000
alleging violation of his civil rights resulting from a civil
commitment ordered by the District Court placing appellant in
the State Mental Hospital. We affirm the District Court's
summary judgment.
      Terry Lee Kerr (appellant) first became involved with
the judicial system of the State of Montana in 1981, when
charges were filed against him in Yellowstone County by the
County Attorney. Two counts were filed, (I) intimidation, a
felony, which alleged that the appellant communicated to a
female friend a threat to inflict physical harm were she to
testify on a criminal charge filed against the appellant, and
 (11) criminal mischief, a misdemeanor, which alleged that
appellant knowingly or purposely injured or destroyed the
property of the residence of the female friend.
      Resulting from said charges, appellant was arrested and
Gary E. Wilcox was appointed to represent him. Based upon
the results of a psychiatric evaluation, Mr. Wilcox filed a
motion to suspend the proceedings, alleging that the
appellant was suffering from a mental disease and did not
understand the nature of the charges against him and was
unable to assist in his defense.     The court granted this
motion in December 1981. Mr. Wilcox further made a motion to
withdraw as counsel, which was also granted.
      As a result of these proceedings, the District Court
filed an order of commitment. In its order the court found
that appellant lacked the mental capacity to continue in this
proceeding, for he did not understand the nature of the
charges brought against him and was therefore unable to
assist in his own defense. The order commited the appellant
to the custody of the director of the Department of
Institutions, and recommended that he be placed in the State
Hospital at Warm Springs, Montana, which occurred in December
1981.
      Some months later, appellant was adjudged mentally fit
to stand trial and was returned to Billings for a jury trial
which began on September 12, 1982. Mr. Beck, and later Mr.
Adams, were appointed to represent appellant in this
proceeding. During the course of the trial, expert testimony
was presented concerning his mental condition. The jury
returned a verdict of not guilty for each count by reason of
mental disease or defect.       On September 30, 1982, the
District Court, pursuant to Title 46, Chapter 14, Part 3,
MCA, held a sentencing hearing.    At the conclusion of the
hearing, the court sentenced appellant to a term of ten years
to the Department of Institutions.
      In April 1983, the appellant appealed this judgment to
this Court requesting that the cause be vacated and the case
remanded to the District Court for commitment proceedings
under SS 41-14-301 through 41-14-304, MCA.    The grounds for
appellant's action were that instead of being committed to
the State Hospital at Warm Springs, he was taken by mistake
to the State Penitentiary, and it was necessary thereafter
for his counsel to have him released and sent to the State
Hospital pursuant to the original commitment.
      In October 1983, through agreement of counsel following
a hearing, the appellant was released under the condition
that he would receive psychiatric treatment in Yellowstone
County. A plan was worked out whereby he would live with his
sister in Yellowstone County under certain conditions
approved by the court.
      In this pro se appeal, it is difficult to set forth the
issues the appellant desires to cover.         Some thirteen
complaints were made about counsel Wilcox and are probably
also applicable, to some extent, against the other two
defendants. We will consider the principal issue, that being
whether the District Court erred in granting all three
counsels' motions for summary judgment dismissing appellant's
complaint.
      In doing so we will handle each defendant separately.
As to Mr. Wilcox, we affirm the District Court's order
granting summary judgment. It is the position of Wilcox that
the motion for summary judgment was properly granted and the
complaint was justifiably dismissed. We agree. It is clear
that this case presents no genuine issue of material fact.
See Rule 56 (c), M.R.Civ.P.
      As previously noted, Wilcox represented appellant for a
limited period of time, from November 10, 1981, to December
10, 1981. He could not conceivably be held responsible for
representation of the appellant for anything that happened
after that period of time.
      The complaint filed by appellant alleged that Wilcox,
while representing him, violated his right pursuant to
§§ 53-21-115 through 53-21-119, MCA.      The District Court
properly noted that no proceeding against the appellant was
taken by the state of Montana pursuant to those statutes,
which involve civil commitments for treatment of seriously
mentally ill individuals. Here Wilcox represented appellant
on criminal charges, and as such was obligated to represent
him pursuant to Titles 45 and 46 of the Montana Code
Annotated. Sections 53-21-111 et seq., MCA, are inapplicable
to representation of the appellant because they are
applicable    only   to   civil   proceedings  not   criminal
proceedings.    We find no error in the granting of summary
judgment by the District Court as to Mr. Wilcox.
       As to defendants Beck and Adams they did not appear as
counsel of record for the appellant until he had been found
capable of standing trial by a psychiatrist at the State
Hospital and returned to Billings for trial.     At trial in
September 1982, the jury returned a verdict of not guilty by
reason of mental disease or defect and thereafter the
District Court committed appellant to the custody of the
Director of the Montana Department of Institutions.        It
should be noted that counsel Beck at that time objected to
this    judgment, alleging    that   it   was  inappropriate.
Thereafter the appellant was mistakenly sent to the State
Prison instead of the State Hospital.
       Shortly afterward, within a week, counsel Beck learned
of the mistaken placement and immediately contacted counsel
for the Department of Institutions in Helena, Montana, the
District Judge and the County Attorney. The District Court
issued an order within a week of this notification,
transferring the appellant to the State Hospital and counsel
Beck filed an appeal to the Supreme Court as to the sentence
given by the District Court.      The District Court opinion
granting summary judgment indicates that Beck opposed the
sentence under 5 46-14-312, MCA.
       During the appeal process the Attorney General agreed
with counselors Beck and Adams that it was an improper
sentence. This Court vacated the sentence and remanded it to
the District Court for a new dispositional hearing, pursuant
to $$ 46-14-301, MCA.   It was at this dispositional hearing
that the appellant's "sentence" to Warm Springs State
Hospital was vacated and he was released on specific
conditions.
         As    with M r .      Wilcox,       we    f i n d t h a t t h e D i s t r i c t Court
p r o p e r l y g r a n t e d summary judgment f o r Beck and Adams.                       Here,
the    p a r t y moving       f o r summary judgment              showed t h e r e was no
g e n u i n e i s s u e o f m a t e r i a l f a c t b e f o r e t h e c o u r t and t h e c o u r t
p r o p e r l y g r a n t e d summary judgment.              See Harlan v .           Anderson
( 1 9 7 9 ) , 169 Mont.       447,     548 P.2d       613; Rumph v. Dale Edwards,
Inc.    ( 1 9 7 9 ) , 183 Mont. 359, 600 P.2d 163.
         The     judgment       of    the     District       Court      in    favor of        the
d e f e n d a n t s Wilcox, Adams and Beck i s a f f i r m e d .




W concur:
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