                             No.    92-550

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993



DENIS ROUANE and PAUL ROUANE,
           Plaintiffs and Appellants,
      v.

THOMAS J. LYNAUGH,
           Defendant and Respondent.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Robert W. Holmstrom, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
               Fredric A. Bremseth, Doshan, Lord & Bremseth,
               Wayzata, Minnesota   ; Gerald J. Neely, Billings,
               Montana
           For Respondent:
               Sidney R. Thomas, Moulton, Bellingham, Longo         &
               Mather, Billings, Montana


                               Submitted on Briefs:     April 22, 1993
                                             Decided:   June 23,
Fil
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from an order issued on May 19, 1992, by the
Thirteenth Judicial District Court, Yellowstone County, granting
summary judgment to Thomas J.           Lynaugh, attorney admitted to
practice in Montana.    We affirm.
     The only question on appeal is whether the District Court
erred in granting summary judgment to Mr. Lynaugh based upon the
running of the statute of limitation for filing a legal malpractice
claim.
     This case involves a claim for personal injuries resulting
when an Eastern Airlines aircraft made a forced landing following
takeoff in Miami, Florida.        Denis Rouane and Paul Rouane, his
father   (the Rouanesf claim they        suffered an injury in that
accident.
     On November 77,   1984,   the Rouanes hired Mr. Lynaugh to handle
the claim against Eastern Airlines.          On October 30, 1986, Mr.
Lynaugh filed a court action in United States District Court,
Billings.
     After negotiations with Eastern Airlines failed, Mr. Lynaugh
advised the Rouanes that their claim should be venued in Florida
and consulted with the law firm of Gaebe, Murphy     &   Mullen of Coral
Gables, Florida.   The action in Montana was stayed and Michael J.
Murphy (Murphy) then filed suit against Eastern Airlines in Florida
state district court on November 6, 1987.
     On approximately November 30, 1987, Eastern Airlines filed its
answer to the complaint alleging as an affirmative defense that the

                                    2
accident was governed by the Warsaw Convention and, as a result the
two-year statute of limitation barred the suit.     Eastern Airlines
contended that the statute of limitation barred recovery because
the claim was not filed until four years after the accident.
       On December 3, 1987, the Rouanes hired the law firm of Doshan,
Lord   &    Bremseth of Minnesota.    Mr.    Lynaughl services were
                                                     s
terminated and several weeks later, Denis Rouane asked that the
Rouane files be sent to the Bremseth law firm.      At some point in
April of 1988, the Rouanes were advised by the Murphy law firm in
Florida that Eastern Airlines was asserting the affirmative defense
of statute of limitation based on the Warsaw Convention governing
international flights.
       On May 30, 1988, Denis Rouane sent a letter of complaint
concerning Mr. Lynaugh to the Montana Commission on Practice and
specifically alluded to the statute of limitation problem:
       3.   Mr. Lynaugh may have blown the statute of
       limitations. He says that he filed within the three year
       statute but I have just recently learned that under a
       Warsaw agreement he may have had to file it within two
       years, which he failed to do. .  ..
On October 3, 1988, the Florida state district court granted
summary judgment to Eastern Airlines. On December 14, 1989, United
States District Judge James F. Battin ordered the case of Rouane v.
Eastern Airlines dismissed based upon Bremseth's concession that
the case was barred by the applicable statute of limitation.
       The Rouanes filed a suit against Mr. Lynaugh on June 4, 1991,
in substance alleging his failure to comply with the statute of
limitation prescribed by the Warsaw Convention to the action
against Eastern Airlines.     Mr. Lynaugh filed a motion for summary
judgment claiming the statute of limitation had run on filing a
claim against him for attorney malpractice. Following a hearing on
May 15, 1992, the District Court granted summary judgment to Mr.
Lynaugh on May 19, 1992 as to Denis Rouane's claim.    Denis Rouane
(Mr. Rouane) appeals that order.
     Did the District Court err in granting summary judgment to Mr.
Lynaugh based upon the running of the statute of limitation for a
legal malpractice claim?
     Mr. Rouane argues that the Montana statute of limitation does
not begin to run until the Florida court determined that the
statute of limitation on the underlying action under the Warsaw
Convention had run. According to Mr. Rouane, it was not until this
date in 1988 that he sustained damage.     Mr. Rouane contends that
this is a case of first impression in Montana.
     Mr. Lynaugh argues that this Court has already decided the
issue of when a statute of limitation for a legal malpractice
action begins.   Mr. Lynaugh contends that Mr. Rouane was required
to file his lawsuit within three years of the discovery of his
error.    Section 27-2-206,    MCA, provides:
    Actions for legal malpractice. 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 vears after the
    plaintiff discovers or throuqh the use of reasonable
    diliqence 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. (Emphasis added.)
     The legislature made 5               27-2-206,           MCA, a wdiscoveryiitype
statute,        The discovery which starts the statute of limitation
running is the discovery of the attorney's error or omission.
Burgett v. Fkaherty         (1983),       204   Mont.     169,    663        P.2d    332.     Mr.
Rouane argues what is considered to be the "damage rulew and
includes discovery of the client8s damage as part of the discovery
prerequisite for a statute to begin running.
     Arguments for the adoption of the "damage rule" have been made
to this Court in the past.                Schneider v. Leaphart                     (1987),    228

Mont.    483,   486-487,     743    P.2d    613,       616.      These arguments have
failed because of the clear wording of the statute created by our
legislature. Peschel v. Jones              (1988),      232 Mont. 5 1 6 , 7 6 0 P.2d 51.

     This statute states that the action must be commenced within
three years after the plaintiff discovers the act, error or
omission.        Mr. Rouane had three years from discovery of the
objectionable activity by Mr. Lynaugh to file a malpractice suit.
     The complaint filed by the Rouanes with the Montana Commission
on Practice is contained in the letter of May                               30,   1988.       That
letter specifically points out that Mr. Lynaugh may have missed the
Warsaw Convention statute of limitation.
        Despite the May     30,    1988   letter to the Montana Commission on
Practice, Mr. Rouane argues he did not have all the facts essential
to his cause of action until the Florida court granted Eastern
Airlines' motion for summary judgment on October                       4,    1988.     In Boles
v. Simonton       (1990),   242     Mont.       394,     791    P.2d    755,        this Court
concluded that the statute of limitation is not triggered by the
damage aspect, stating:
        [Tlhe rule that the statute is not triggered until the
        client is damaged has been expressly rejected in Montana
        as in conflict with the statute.
Roles
-6        242 Mont. at 401, 791 P'2d at 759,

        Mr. Rouane knew of the Warsaw Convention statute of limitation
when he wrote to the Montana Commission on Practice on May          30,

1988.     By that date Mr. Rouane had discovered that Mr. Lynaugh had
missed the appropriate statute of limitation.        Mr. Rouane did not
file his complaint until June, 1991, more than three years from the
date on which the record establishes knowledge of Mr. Lynaugh's
omission.     We conclude that Mr. Rouane failed to comply with the
statute of limitation contained in g     27-2-206,   MCA.
        We hold that the District Court did not err in granting
summary judgment to Mr. Lynaugh based upon the running of the
statute of limitation for filing a legal malpractice claim.
        Af firmed.




We Concur:
                                          June 23, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


Fredric A. Bremseth, Esq.
Doshan, Lord & Bremseth
810 E. Lake St.
Wayzata, MN 55391

Gerald J. Neely, Esq.
P.O. Box 21137
Billings, MT 59104


Sidney R. Thomas
Moulton, Bellingharn, Longo & Mather
P.O. Box 2559
Billings, MT 59103


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
