                                                                                         December 20 2011


                                           DA 11-0353

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2011 MT 320N



JOHN A. HUBBARD,

              Plaintiff and Appellant,

         v.

MICHAEL R. TRAMELLI,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. BDV 11-0189
                        Honorable Laurie McKinnon, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        John A. Hubbard, self-represented, Great Falls, Montana

                For Appellee:

                        Michael R. Tramelli, self-represented, Great Falls, Montana


                                                     Submitted on Briefs: November 23, 2011

                                                                 Decided: December 20, 2011




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 noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     John A. Hubbard (Hubbard) appeals an order of the Eighth Judicial District Court,

Cascade County, granting Michael R. Tramelli’s (Tramelli) motion for judgment on the

pleadings. We affirm.

¶3     In January 1987, Hubbard was grievously injured while working for Carl Weissman

& Sons, Inc. (“CWS”). Hubbard’s arm was entangled in the gears of a crane and ripped off

near the shoulder. Hubbard retained Tramelli and sued CWS. In November 2000, CWS and

Hubbard entered a stipulation, in which CWS confessed liability and assigned “all rights,

claims, demands or causes of action it may have against The Home Insurance Company for

liability it has to John A. Hubbard” including claims arising from CWS’s confession of

liability. In exchange, Hubbard agreed not to collect or enforce any judgment he received

against CWS or its affiliated entities. On December 20, 2000, a judgment was entered

against CWS, and in favor of Hubbard, in the amount of $2,389,000, plus 10 percent interest.

¶4     After the judgment was entered, Tramelli, on behalf of Hubbard, filed suit against The

Home Insurance Company (“HIC”), CWS’s insurance company, in federal court. However,

the case was dismissed in July of 2003 because HIC filed for bankruptcy in March 2001 and

was declared insolvent. When the federal case was dismissed in 2003, Hubbard learned that

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CWS’s insurance policy with HIC stated, “[t]his insurance does not apply … to bodily injury

to any employee of the insured arising out of and in the course of his employment by the

insured [CWS] for which the insured may be held liable as an employer or in any other

capacity.”

¶5    These facts form the basis of Hubbard’s current Complaint against Tramelli, which

was filed on February 25, 2011. Hubbard alleges Tramelli committed fraud and legal

malpractice by having Hubbard enter into the stipulation when there was no coverage under

CWS’s insurance policy with HIC. Tramelli did not file an answer. Instead, Tramelli moved

for judgment on the pleadings pursuant to M. R. Civ. P. 12(c), arguing that the statute of

limitations barred Hubbard’s claims.

¶6    The District Court granted Tramelli’s motion, which it called a “motion to dismiss,”

finding that damages occurred when Hubbard signed the stipulation in 2000, and that

Hubbard became aware the stipulation was inaccurate in December of 2003. Therefore,

Hubbard “acquired the knowledge of the underlying facts for his fraud or legal malpractice

claim by the end of December, 2003.” The District Court found that pursuant to §§ 27-2-203

and -206, MCA, Hubbard “was required to file this action on or before December, 2005, and

December 2006.” Hubbard had, “under the best scenario … missed the statute of limitations

by at least four (4) years.” Hubbard’s Complaint was dismissed. Hubbard timely appealed.



¶7    We review a district court’s ruling on an M. R. Civ. P. 12(c) motion for judgment on

the pleadings de novo. Firelight Meadows, LLC v. 3 Rivers Telephone Cooperative, Inc.,

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2008 MT 202, ¶ 12, 344 Mont. 117, 186 P.3d 869. We determine whether the district court’s

decision was correct. Firelight Meadows, ¶ 12.

¶8     “The period prescribed for the commencement of an action for relief on the ground of

fraud or mistake is within 2 years, the cause of action in such case not to be deemed to have

accrued until the discovery by the aggrieved party of the facts constituting the fraud or

mistake.” Section 27-2-203, MCA.

¶9     Section 27-2-206, MCA, provides:

       An action against an attorney licensed to practice law in Montana or a
       paralegal assistant or a legal intern employed by an attorney based upon the
       person's alleged professional negligent act or 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, whichever occurs last, but in no case may the action
       be commenced after 10 years from the date of the act, error, or omission.

¶10    Having reviewed the briefs and the record on appeal, we conclude that Hubbard has

not met his burden to demonstrate error by the District Court. Hubbard’s Complaint shows

that he learned the facts that form the basis of his fraud and malpractice claims in 2003. His

Complaint was filed in 2011. Unfortunately, Hubbard’s Complaint was not timely under any

calculation.

¶11    Affirmed.

                                                   /S/ MICHAEL E WHEAT


We Concur:


/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
                                              4
/S/ JIM RICE
/S/ BETH BAKER




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