                                                                                              12/28/2017


                                            DA 17-0261
                                                                                          Case Number: DA 17-0261

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 323N


ALLAN J. GERHART,

              Plaintiff and Appellant,

         v.

KALVIG & LEDUC, P.C., KALVIG LAW FIRM, P.C.,
BRUCE FREDERICKSON, ANGELA LEDUC, and
LAKE COUNTY, a political subdivision,

              Defendants and Appellees.


APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV-14-914(D)
                        Honorable Dan Wilson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Kim T. Christopherson, Christopherson Law Office, P.C.,
                        Kalispell, Montana

                For Appellees Kalvig & LeDuc, P.C., Kalvig Law Firm, P.C.,
                Bruce Fredrickson, and Angela LeDuc:

                        Mikel L. Moore, Katherine A. Matic, Moore, Cockrell, Goicoechea
                        & Johnson, P.C., Kalispell, Montana

                For Appellee Lake County:

                        Walter E. Congdon, Civil Deputy Lake County Attorney,
                        Polson, Montana


                                                    Submitted on Briefs: December 13, 2017
                                                               Decided: December 28, 2017


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), 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     Allan Gerhart appeals from the District Court’s order granting summary judgment

to the defendants and denying summary judgment to Gerhart. We affirm.

¶3     This case arises from Gerhart’s effort in 2007 to secure a road approach permit

from Lake County. When the County denied the permit, Gerhart sued the County in

United States District Court, claiming a right to damages pursuant to 42 U.S.C. § 1983.

The United States District Court dismissed Gerhart’s complaint.          He secured new

attorneys (the Kalvig defendants) and successfully appealed the dismissal to the Ninth

Circuit Court of Appeals. Just before the scheduled trial in 2011, Gerhart’s attorneys

learned that an adjacent landowner had offered him an alternate and possibly superior

easement to his property. The attorneys advised Gerhart that this information greatly

diminished the value of his claim against the County, and advised him to settle. Gerhart

subsequently agreed to settle that claim for $100,000 and the County’s approval of his

road approach permit.

¶4     The County tendered the settlement amount and Gerhart signed a settlement

document acknowledging the terms. In December 2011 Gerhart’s attorneys distributed


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the settlement proceeds, withholding their unpaid fees, the cost of the prior mediation,

and $20,000 to account for a lien for fees asserted by his original attorneys. Gerhart

received slightly over $38,000. Shortly thereafter Gerhart terminated his relationship

with the Kalvig defendants.

¶5     Over two years later, in 2014, Gerhart appeared through his present attorney

demanding that the Kalvig defendants pay over to him the $20,000 they had retained

from the settlement amount to account for the asserted attorney fee lien. The Kalvig

defendants paid the money to Gerhart. In August 2014 Gerhart filed the current action in

the Eleventh Judicial District Court against his former attorneys and Lake County. The

defendants moved for summary judgment.

¶6     Gerhart’s complaint contained a number of counts purporting to state claims for

legal malpractice against the Kalvig defendants and for breach of contract against Lake

County. Gerhart claimed, in summary, that his attorneys had misled him into settling

with the County, that they never actually secured a written access permit from the

County, and that they breached duties owed to him by withholding the $20,000 from the

settlement proceeds. Gerhart claimed that the County breached the settlement agreement

by not providing him with a separate written access permit. The District Court analyzed

Gerhart’s claims against the attorneys, concluding that they were barred by the statute of

limitations or that they failed to state claims on their face. The District Court determined

that the claim against the County failed because Gerhart clearly had a written agreement

acknowledging his right to the requested access.



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¶7     The District Court properly granted summary judgment against Gerhart. Despite

his attempts to mischaracterize the situation, Gerhart won his dispute with the County and

signed a written settlement agreement. He recovered a substantial amount of money from

the County along with an acknowledgment that he had a right of access. His attorneys

contend that he withheld critical information about a second potential access to his

property, while Gerhart contends that his attorneys incorrectly analyzed the effect of this

evidence and misled him into the settlement. Despite Gerhart’s strenuous objection, the

District Court was not required to accept Gerhart’s rebranding of his fraud claims as

malpractice claims in order to secure a longer statute of limitations.

¶8     The District Court correctly held that Gerhart failed to demonstrate that any

defendant is liable to him under any of the claims raised in the complaint below.

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, this case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶10    Affirmed.

                                                  /S/ MIKE McGRATH

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ LAURIE McKINNON




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