                                                                                       January 29 2013


                                       DA 12-0165

              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                       2013 MT 15



TAMARA LUCAS and JAMES LUCAS,

          Plaintiffs and Appellants,

     v.

MAT STEVENSON,

          Defendant and Appellee.



APPEAL FROM:        District Court of the Fourth Judicial District,
                    In and For the County of Missoula, Cause No. DV-11-1484
                    Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

            For Appellant Tamara Lucas:

                    Tamara Lucas (Self-Represented), Kalispell, Montana

            For Appellee:

                    Reid J. Perkins, Worden Thane P.C., Missoula, Montana


                                                Submitted on Briefs: November 28, 2012

                                                           Decided: January 29, 2013



Filed:

                    __________________________________________
                                      Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1     Tamara Lucas1 (Tamara) appeals from an order of the Fourth Judicial District

Court, Missoula County, granting summary judgment to attorney Mat Stevenson

(Stevenson) on a legal malpractice claim brought by Tamara and her husband, James

Lucas (James). We affirm.

                                          ISSUE

¶2     Tamara raised two issues on appeal. The first issue concerned whether the District

Court should have allowed Tamara to supplement the record by introducing additional

evidence in the form of CDs and photographs.            We denied Tamara’s motion to

supplement the record in this Court’s August 21, 2012 order. We restate the sole issue

remaining on appeal as follows:

¶3     Whether the District Court erred in granting Stevenson’s summary judgment

motion.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     This case involves various allegations of legal malpractice. On October 28, 2004,

Tamara was involved in a car accident in Flathead County. She was arrested and charged

with driving under the influence of alcohol. James went to see Tamara at the Kalispell

Police Department booking area. According to police officers, James was under the


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  Tamara, who is not an attorney, purports to bring this appeal on behalf of herself and
her husband, James Lucas. However, Tamara is a self-represented litigant. Therefore,
she may only act on her own behalf and may not bring claims on behalf of any other
person or represent any other person before this Court. Accordingly, we consider only
Tamara’s individual claims on appeal. See Weaver v. Graybill, Ostrem, Warner &
Crotty, 246 Mont. 175, 178, 803 P.2d 1089, 1091 (1990).

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influence of alcohol or drugs and was highly confrontational. The police officers told

James that he could visit his wife once she was booked and transported to the Flathead

County Department of Corrections.         James refused to leave and was arrested for

obstructing a peace officer. James attempted to kick one of the police officers in the face

while the officer searched him for weapons. He made contact with the officer’s shoulder

and chest and was subsequently taken to the ground by the officers. James alleged that

the police officers slammed his head on the concrete floor, causing him permanent brain

damage and injuries. James was charged with the additional offenses of disturbing the

peace and felony assault on a peace officer.

¶5     The Lucases hired Stevenson to defend James against the criminal charges.

Stevenson later agreed to represent the Lucases in a civil action against the police officers

involved in the altercation and the City of Kalispell.

¶6     On June 23, 2005, the Lucases jointly filed for Chapter 13 bankruptcy. Their

bankruptcy case was subsequently converted to a Chapter 7 proceeding on March 15,

2006. Richard Samson (Samson) was appointed trustee for the bankruptcy estate. Penny

Leatzow (Leatzow) represented the Lucases in their bankruptcy proceedings.              The

Lucases originally disclosed their civil lawsuit as an asset under Schedule B in the

bankruptcy proceedings, but later amended the Schedule to remove the claim. The

Lucases told Samson that they had discussed a possible civil action against the City of

Kalispell with several different attorneys and law firms and believed that their claims

were without merit based on those consultations. The bankruptcy action was closed on

June 21, 2006.


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¶7     According to Stevenson, his representation of the Lucases concerning their civil

claims began in the fall of 2006. On October 30, 2006, Stevenson filed a complaint on

behalf of James against defendants Kalispell Police Department, the City of Kalispell,

and the individual police officers that arrested James.     Stevenson filed an amended

complaint on January 23, 2007, that included Tamara as a plaintiff.         The amended

complaint included claims of assault and battery, negligence, negligence per se, negligent

hiring and training, negligent supervision, and loss of consortium. Stevenson associated

attorney John Velk (Velk) to assist with the litigation.

¶8     In January 2009, Stevenson and Velk first learned of the Lucases’ bankruptcy

proceeding and contacted Samson to inquire whether the Lucases’ pending civil case

might be an asset of the bankruptcy estate. Upon discovering that the Lucases were

pursuing their personal injury claims in spite of their previous representations to the

contrary, Samson moved to reopen the bankruptcy proceedings so that the previously

undisclosed asset could be administered. The bankruptcy court reopened the case on

February 2, 2009.

¶9     Once the civil action was determined to be an asset of the bankruptcy estate,

Samson asked Stevenson and Velk to stop working on the case for Tamara and James.

Samson filed an application to appoint Stevenson and Velk as attorneys for the trustee to

continue to pursue the case against the Kalispell Police Department, the City of Kalispell,

and the individual police officers. The bankruptcy court approved the appointment on

October 26, 2009. From that date forward, Stevenson and Velk represented the trustee

and the bankruptcy estate.


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¶10    Stevenson and Velk held a settlement conference with the City of Kalispell. The

bankruptcy estate agreed to accept $98,000 as a full and final settlement. Leatzow

negotiated on behalf of the Lucases to determine how much of the settlement would be

paid to the Lucases. On January 23, 2010, Samson filed a Notice of Trustee’s Motion to

Approve Compromise Settlement with the bankruptcy court. The Notice was sent to

Leatzow and stated that any objection to the settlement must be raised within 14 days.

The bankruptcy court approved the settlement without objection on February 10, 2010.

On March 16, 2010, the Lucases received a check for $31,947.68, with the remaining

settlement funds being paid to creditors, trustee fees, and attorney fees and costs.

¶11    On November 16, 2011, Tamara filed a complaint as a self-represented litigant in

Montana’s Fourth Judicial District Court, Missoula County, alleging that Stevenson

failed to press criminal charges against the police officers, never took depositions of the

police officers, failed to investigate and prove James’ innocence, failed to add Tamara as

a plaintiff, and mismanaged litigation funds. Tamara requested $700,000 for Stevenson’s

alleged violations of the rules of professional conduct. Stevenson filed a motion to

dismiss and motion for summary judgment. The District Court held a hearing on the

summary judgment motion on February 14, 2012. After hearing the parties’ arguments,

the District Court granted summary judgment to Stevenson on February 16, 2012.

Tamara appeals from the grant of summary judgment.

                              STANDARDS OF REVIEW

¶12    We review a district court’s ruling on a motion for summary judgment de novo,

applying the same criteria of M. R. Civ. P. 56 as did the district court. Estate of Willson


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v. Addison, 2011 MT 179, ¶ 11, 361 Mont. 269, 258 P.3d 410. Summary judgment

“should be rendered 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).

                                       DISCUSSION

¶13    Did the District Court err in granting Stevenson’s motion for summary judgment?

¶14    The District Court determined that the Lucases’ civil claims were properly

determined to be an asset of the bankruptcy estate. The District Court further concluded

that Stevenson did not represent the Lucases at the time the claims were settled, and

therefore they had no standing to bring a legal malpractice claim against him. Relying on

the Notice of Trustee’s Motion to Approve Compromise Settlement and the

accompanying certificate of service, the District Court rejected the Lucases’ argument

that they did not receive notice of the settlement.

¶15    On appeal, Tamara reiterates her arguments that Stevenson committed legal

malpractice in the following ways: he never investigated James’ incident at the police

station, he scared the Lucases into pleading no contest in the criminal matter by saying

they would not get a fair trial in Kalispell, he never deposed the police officers, he did not

press charges against the police for assault, he did not frame the Lucases’ civil suit in

terms of civil rights and police brutality, he allowed the statute of limitations to expire, he

stole money meant for James’ doctor bills, and nothing was sent to Tamara to allow her

to contest the settlement. Stevenson maintains that the Lucases lack standing to assert

their claims because he owed them no duty at the time of the settlement agreement.


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Stevenson further contends that the Lucases waived their right to object to the settlement

agreement. Lastly, Stevenson argues that the Lucases are essentially attempting to hold

him liable for the alleged malpractice of their bankruptcy attorney, Leatzow.

¶16   Since “standing is a threshold, jurisdictional requirement,” it is where we begin

our analysis. Heffernan v. Missoula City Council, 2011 MT 91, ¶ 29, 360 Mont. 207, 255

P.3d 80. The question of standing addresses whether a litigant is entitled to have the

court decide the merits of a particular dispute. Chipman v. Northwest Healthcare Corp.,

2012 MT 242, ¶ 25, 366 Mont. 450, 288 P.3d 193; Williamson v. Mont. PSC, 2012 MT

32, ¶ 28, 364 Mont. 128, 272 P.3d 71. Under Montana law, the complaining party must

clearly allege past, present, or threatened injury to a property or civil right, and the

alleged injury must be one that would be alleviated by successfully maintaining the

action. Williamson, ¶ 28; Heffernan, ¶ 33. This Court has adopted prudential rules under

which a litigant may assert only her own rights. Williamson, ¶ 28; Heffernan, ¶ 33.

¶17   Many of the claims asserted by Tamara against Stevenson must be dismissed for

lack of standing. A pro se litigant cannot represent or appear on behalf of another person

or entity. Zempel v. Liberty, 2006 MT 220, ¶ 18, 333 Mont. 417, 143 P.3d 123; Weaver

v. Graybill, Ostrem, Warner & Crotty, 246 Mont. 175, 178, 803 P.2d 1089, 1091 (1990).

Acting as a self-represented litigant, Tamara may only represent herself and may not

assert any claims on behalf of her husband, James. Stevenson represented James in

relation to the criminal charges, so Tamara lacks standing to seek relief on his behalf.

This conclusion precludes consideration of Tamara’s allegations that Stevenson failed to

investigate James’ criminal case or mishandled that matter in any other way.


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¶18    Standing also prevents our consideration of Tamara’s allegations that relate to the

civil action. When the Lucases filed for bankruptcy on June 23, 2005, the filing created a

bankruptcy estate that included “all legal or equitable interests of the debtor in property

as of the commencement of the case.” 11 U.S.C. § 541. Assets of the bankruptcy estate

broadly include any of the debtor’s causes of action. Cusano v. Klein, 264 F.3d 936, 945

(9th Cir. 2001). If a cause of action accrued prior to a debtor’s petition date, it is an asset

of the bankruptcy estate that must be scheduled. In re Brown, 363 B.R. 591, 604 (Bankr.

D. Mont. 2007); Cusano, 264 F.3d at 947.

¶19    The Lucases’ civil claims were an asset of the bankruptcy estate because the

claims accrued before the Lucases filed for bankruptcy. See § 27-2-102(1)(a), MCA

(“[A] claim or cause of action 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.”). In fact, the

Lucases originally disclosed their civil cause of action as an asset when they filed for

bankruptcy, but later decided to remove it from the bankruptcy estate on the

representation that it was meritless. In fall 2006, after the bankruptcy case was initially

closed, Stevenson began pursuing the Lucases’ civil claims without knowledge of their

bankruptcy.

¶20    At all times during Stevenson’s representation and pursuit of the civil cause of

action in question, the cause of action was actually the property of the bankruptcy estate

and did not belong to the Lucases.          Stevenson learned of his clients’ bankruptcy

proceedings in January 2009, and was later reassigned to pursue the case on behalf of the


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bankruptcy estate. Stevenson settled the claims while representing the bankruptcy estate.

Any cause of action stemming from his pursuit and settlement of these claims belongs to

his client, the bankruptcy estate.

¶21    “For [an individual plaintiff] to have standing, he, rather than the bankruptcy

estate, must own the claim upon which he is suing.” Cusano, 264 F.3d at 945. At no

time during the pendency of Tamara’s civil action against the City of Kalispell did

Tamara actually own the claim she hired Stevenson to pursue. Accordingly, under this

anomalous set of facts, we hold that Tamara does not have standing to assert her legal

malpractice claims against Stevenson concerning his handling of the civil claims that

belonged to the bankruptcy estate at all pertinent times.

¶22    Tamara further alleges that she did not receive notice of the settlement agreement.

However, the record shows that the proposed settlement agreement was sent to her

bankruptcy attorney, Leatzow, and no timely objections were made. The fact that the

Lucases accepted payment of a portion of the settlement funds further undermines

Tamara’s argument. Any claims that her attorney failed to inform her of the settlement

agreement and did not allow her the opportunity to object, would be matters between

Tamara and Leatzow, not Stevenson.

¶23    Tamara’s remaining allegations similarly fail to set forth a prima facie case of

legal malpractice or establish a genuine issue of material fact that would preclude

summary judgment. Tamara contends that Stevenson violated the rules of professional

conduct by engaging in a conflict of interest and mismanaging client funds. We have

previously recognized that violation of the Montana Rules of Professional Conduct does


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not create a private cause of action or a presumption that a legal duty has been breached.

See Carlson v. Morton, 229 Mont. 234, 237-38, 745 P.2d 1133, 1135-36 (1987).

                                    CONCLUSION

¶24   For the foregoing reasons, we affirm the District Court’s grant of summary

judgment in favor of Stevenson.


                                                       /S/ Patricia O. Cotter

We Concur:


/S/ Mike McGrath
/S/ Beth Baker
/S/ Michael E Wheat
/S/ Brian Morris




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