                                                                                           February 17 2015


                                           DA 14-0202
                                                                                           Case Number: DA 14-0202

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 44N



DUANE RONALD BELANUS,

              Plaintiff and Appellant,

         v.

JORGE QUINTANA,

              Defendant and Appellee.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDV-2013-449
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Duane Ronald Belanus (self-represented); Deer Lodge, Montana

                For Appellee:

                        Jorge Quintana (self-represented); Helena, Montana



                                                    Submitted on Briefs: January 14, 2015
                                                               Decided: February 17, 2015


Filed:

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

¶1        Pursuant to Section I, Paragraph 3(d), 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 nonciteable cases published in the Pacific Reporter and Montana Reports.

¶2        Duane Belanus appeals from the order of the Montana First Judicial District Court,

Lewis and Clark County, granting summary judgment in favor of Jorge Quintana. We

affirm.

¶3        Criminal proceedings were instituted against Belanus during 2008. On August 4,

2008, the Lewis and Clark County Justice Court sent a notice of preliminary hearing to

Belanus’ home. The hearing was scheduled for August 15, 2008.

¶4        On August 11, 2008, Belanus hired Quintana to represent him in the criminal

proceedings. That same day, Quintana waived the preliminary hearing on Belanus’ behalf.

Belanus contends that Quintana did so without his permission and despite Belanus’

insistence that the hearing be held.

¶5        Several months later, Belanus hired a new lawyer to represent him. Quintana

transferred Belanus’ file to Belanus’ new counsel in December 2008 or January 2009.

Belanus was ultimately convicted and sentenced to prison.

¶6        On June 18, 2013, Belanus filed a complaint in the District Court, commencing the

present action. In the complaint, Belanus alleged that a “verbal contract” had been formed,

pursuant to which Quintana agreed “that no decision was to be made about Mr. Belanus’s



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case unless first discussed with Mr. Belanus.” Belanus further alleged that Quintana

breached this agreement when he waived the preliminary hearing.

¶7     On January 21, 2014, Quintana filed a motion asking the District Court for summary

judgment. The District Court granted this motion in a March 12, 2014 order. It determined

that while he labeled it a claim for breach of contract, Belanus in fact alleged that Quintana

had committed malpractice.       As the three-year statute of limitations for bringing a

malpractice claim ran before Belanus filed his claim, the District Court granted summary

judgment. Belanus appeals.

¶8     Belanus argues that the statute of limitations was tolled until June 13, 2012, when he

was able to obtain docket information from the Clerk of Court. For this reason, he claims

that the statute of limitations had not run by the time he filed his complaint on June 18, 2013,

and, accordingly, that the District Court erred by ordering summary judgment.

¶9     We review a district court’s grant of summary judgment de novo, applying the same

rule, M. R. Civ. P. 56(c)(3), that a district court does when making a summary judgment

ruling. Ehrman v. Kaufman, 2010 MT 284, ¶ 10, 358 Mont. 519, 246 P.3d 1048. We review

a district court’s conclusions of law for correctness. Ereth v. Cascade Cnty., 2003 MT 328,

¶ 11, 318 Mont. 355, 81 P.3d 463.

¶10    Claims for breach of a professional service contract can sound in either contract or

tort. As the length of the applicable statute of limitations depends upon the characterization

of the action, we must determine whether the claim in the present case properly sounds in

contract or tort. When doing so, we look to the gravamen of the action rather than relying on

the label given to the claim by the plaintiff. If the claim involves a breach of a legal duty
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imposed by law that arises during the performance of the contract, then the suit properly

sounds in tort. Tin Cup Cnty. Water and/or Sewer Dist. v. Garden City Plumbing & Heating,

Inc., 2008 MT 434, ¶¶ 25-26, 347 Mont. 468, 200 P.3d 60.

¶11    Here, Belanus’ claim is a tort claim rather than a claim for breach of contract.

Although he claims that a contract for legal services was formed, he alleges an error in

Quintana’s practice based on the duties required of Quintana by law.

¶12    The statute of limitations for legal malpractice claims states that “[a]n action against

an attorney . . . for error or omission in the person’s practice must be commenced within 3

years after the plaintiff discovers or through the use of reasonable diligence should have

discovered the act, error, or omission.” Section 27-2-206, MCA.

¶13    Here, the alleged error was Quintana’s waiver of a preliminary hearing. We agree

with the District Court that Belanus discovered or should have discovered this error when the

waiver became part of the court filings, which are public records. Even if this is not so,

Belanus should have discovered the preliminary hearing had been waived soon after his June

2009 trial and conviction, at the very latest. This is especially so considering his allegedly

vehement insistence upon holding a preliminary hearing.

¶14    Thus, the statute of limitations began to run at some point well before June 2010.

Belanus was, therefore, prevented by the three-year statute of limitations from bringing his

June 2013 claim, and the District Court was correct to grant summary judgment. As our

decision on this issue is dispositive, we do not address the additional arguments Belanus

raises on appeal.

¶15    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
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Internal Operating Rules, which provides for nonciteable memorandum opinions. The issues

in this case are legal and are controlled by settled Montana law, which the District Court

correctly interpreted.

¶16    Affirmed.

                                                /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ PATRICIA COTTER




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