                                          No. 00-694

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2002 MT 39N


WILLIAM MICHAEL KASBEN,

              Plaintiff and Appellant,

         v.

DAN YARDLEY,

              Defendant and Respondent.



APPEAL FROM:         District Court of the Sixth Judicial District,
                     In and for the County of Park,
                     The Honorable Wm. Nels Swandal, Judge presiding.


COUNSEL OFRECORD:

              For Appellant:

                     William Michael Kasben, Pro Se, Deer Lodge, Montana

              For Respondent:

                     Dan Yardley; Yardley & Yardley, Livingston, Montana


                                                       Submitted on Briefs: March 22, 2001

                                                                  Decided: March 5,2002
Filed:
Chicf J ~ ~ s t i c c
                  Karla M. Gray dclivcrcd the Opinion of thc Court.


I       Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

72      William Michael Kasben appeals from the dismissal by the Sixth Judicial District

Court, Park County, of his malpractice claim against Dan Yardley, his appointed counsel in

a felony criminal proceeding. We affirm.

73      We restate the issues as whether the District Court Judge erred in not disqualifying

himself and whether the court correctly granted Yardley's motion to dismiss on grounds that

Kasben's action was barred by the statute of limitations.

74      As to the first issue, Kasben claims the District Court Judge should have disqualified

himself from presiding in this action because he also presided over Kasben's felony case.

Kasben points out that, in the previous case, he wrote to the judge several times about

Yardley.

15      The criteria which prohibit a judge from sitting or acting in a proceeding are set forth

at   5 3-1-803, MCA.    None of the provisions set forth in that statute applies to this case.

Kasben's argument in this regard fails to distinguish between a situation in which the judge

has acted as a party's attorney in a prior proceeding--where 5 3-1-803, MCA, prohibits the
judgc from presiding--and a situation such as the prcscnt one in which ajudgc has prcsidcd

in a prior proceeding involving the same people. Not only does 3 3-1-803, MCA, not apply,

Kasben did not avail himself of his right to substitute the District Judge under $ 3-1-804,

MCA. Nor did he move to disqualify the judge for cause under 9 3-1-805, MCA. We hold

Kasben has not established any error in the District Judge's presiding in this action.

76     Kasben's second issue relates to the District Court's legal determination to dismiss the

malpractice action as time-barred, which we review to determine whether the court's

conclusioh was correct. Lundquist v. McBeth, 2001 MT 3 1 1,n 13, 308 Mont. 1,v 13, 38

P.3d 831,   7   13 (citations omitted). An action for legal malpractice must be commenced

within 3 years after the plaintiff discovered or should have discovered the act, error, or

omission. Section 27-2-206, MCA.

77     Kasben was sentenced in the criminal matter on December 2, 1996. He filed his

malpractice complaint approximately 3 %years later, in June of 2000. Kasben contends that

he did not receive proof of negligence relating to his appeal until July 8, 1997, when Yardley

finally sent him documentation he had requested. Based on that date, he argues he filed this

suit within 3 years of "discovery" of the alleged negligent act or omission by Yardley and,

therefore, the suit was timely filed under 5 27-2-206, MCA.

78     The problem with Kasben's argument goes to the nature of the documentation Yardley

delivered to him on July 8, 1997. In that regard, Kasben states only that "[slome of these

documents were documents [Kasben] provided [Yardley], which were never presented to the

court, but should have bccn." If Kasbcn originally provided the documcnts to Yardley, then

                                              3
hc kncw of thcm at that timc, and that timc prcdatcd Kasbcn's fclony conviction of his guilty

plea which culminated in his sentencing in December of 1996. Kasben has failcd to support

his theory that he did not "discover" Yardley's alleged misconduct prior to July of 1997.

79     Kasben next contends that the statute of limitations should have been tolled while he

was incarcerated out of state and with inadequate legal resources. We disagree.

710    Section 27-2-401, MCA, provides for tolling of statutes of limitations in certain

"disability" cases. In Weston v. Cole (1988), 233 Mont. 61, 758 P.2d 289, we held that the

statute of limitations was not tolled while a plaintiff was out of state. Moreover, ! 27-2-401,
                                                                                    j

MCA, was amended in 1995 to delete a provision providing for tolling when a person is

"imprisoned on a criminal charge or under a sentence for a term less than for life." 1995

Mont. Laws Ch. 46, Sec. 1. The deletion clearly establishes the Legislature's intent that

being imprisoned on a criminal charge, whether in state or out of state, does not toll a statute

of limitations. Kasben also argues that failing to toll the statute of limitations for his

malpractice action while he was incarcerated in a facility with inadequate legal resources is

a violation of his constitutional rights, but he cites no controlling authority for that

proposition.

71 1   Finally, Kasben discusses various elements of the substance of his complaint,

apparently attempting to appeal issues from his criminal case. He failed to file a timely

appeal of that conviction, however, and the timc for doing so has expired. Therefore, we do

not address those matters further. Nor do we address the several new issues Kasben
impropcrly raises in his reply brief. See Rule 23(c), M.R.App.P.; Sl~errard Preweff, 200 1
                                                                          v.

MT 228,1/ 20, 306 Mont. 51 1 , 7 2 0 , 3 6 P.3d 378,120 (citation omitted).

1/12   We hold the District Court correctly granted Yardley's motion to dismiss on grounds

that this action was barred by the statute of limitations.

113    Affirmed.




We concur:




                 Justices     1
