                                                                                                03/10/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                                            Case Number: DA 19-0278


                                        DA 19-0278


, DEANNA H. McATEE,

            Plaintiff, Appellant, and Cross-Appellee,

       v.                                                           ORDER

 MORRISON AND FRAMPTON,PLLP,                                           FILE
            Defendant; Appellee, and Cross-Appellant.                  MAR 1 0 2020
                                                                    Bowen Greenwood
                                                                  Clerk of Suprerne Couti
                      •                                              State of Montana
        This matter comes before the . Court on an appeal of Deanna H. McAtee and
 cross-appeal of Morrison and Frampton, PLLP (M&F) from orders of the Eleventh
 Judicial District, Flathead County.
       In 2011, M&F filed a complaint against McAtee on behalf of its client,
 Whitefish Credit Union (WCU), for alleged fraud based on McAtee's conduct while
 brokering certain loans with WCU. M&F also reported the fraud allegations to federal law
 enforcement authorities which resulted in criminal charges against McAtee. Both the
 criminal charges and civil fraud claims were ultimately dismissed. Prior to resolution ofthe
 claims, McAtee filed for bankruptcy and received a discharge from the bankruptcy court.
       In January 2014,McAtee filed this lawsuit as a separate action against M&F,alleging
 malicious prosecution, abuse of process, and constructive fraud based on M&F's
involvement in the proceedings against her. M&F moved for summary judgment, asserting
that McAtee was judicially estopped from pursuing her claims against M&F because she
failed to disclose those claims as assets in her personal bankruptcy. M&F also argued it was
immune from the malicious prosecution claim based on federal law; that McAtee lacked
standing to pursue her abuse of process claim; that McAtee's abuse of process and
 constructive fraud claims were time-barred under the applicable statute of limitations; and
that McAtee failed to allege facts in her complaint establishing all elements of constructive
fraud.
         In orders issued on May 15, 2018 and January 31, 2019, the District Court denied
M&F's motion for summary judgment based on its argument that McAtee was judicially
estopped from pursuing her claims because they were not disclosed in her personal
bankruptcy; however, the District Court granted M&F summary judgment on each of
McAtee's claims on other grounds.
         McAtee appealed the District Court's order granting summary judgment to M&F.
M&F cross-appealed the District Court's order denying its motion for summary judgment
based on judicial estoppel. After briefing was completed, we issued our Opinion in
Kucera v. City ofBillings,in which we addressed the circumstances when a plaintiff may be
judicially estopped from pursuing claims because the claims were not disclosed in
bankruptcy. 2020 MT 34, 399 Mont. 10,            P.3d        . Because the judicial estoppel
issue in McAtee and M&F's case is potentially dispositive, we remand to the District Court
for further proceedings in light of our Opinion in Kucera.
         IT IS THEREFORE ORDERED that McAtee's appeal and M&F's cross-appeal are
DISMISSED WITHOUT PREJUDICE and REMANDED to the Eleventh Judicial District,
Flathead County, for further proceedings consistent with this Order.
         IT IS FURTHER ORDERED that the Clerk ofthis Court shall give immediate notice
ofthis Order to all counsel ofrecord and to the Hon.Dan Wilson. The Clerk shall return the
District Court Record to the Clerk of the District Court.
         DATED this ,IO /"-day of March, 2020.




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    Justices




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