Preview:

No.

89-514

IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

LEONARD and BONNIE BOLES, Plaintiffs & Appellants,

RICHARD S. SIMONTON and McDONOUGH, COX and SIMONTON, P.C., a Nontana Corporation, Defendants & Respondents.

APPEAL FROM:

District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD: For Appellant: Lloyd E. Hartford, Billings, Montana .For Respondent: Ira Eakin, Billings, Montana Herbert I. Pierce 111, Billings, Montana Kelly Jean Beard, Billings, Montana

Submitted on Briefs: Decided:

February 9, 1990 April 25, 1990

Justice Fred J. Weber delivered the Opinion of the Court. This appeal arises from an order by the District Court, Thirteenth Judicial District, Yellowstone County, Montana, granting summary judgment in favor of defendants. affirm. The issues presented for our review are:
1.

Plaintiff appeals.

We

Whether the District Court erred in granting summary

judgment in favor of defendants by concluding that the cause of action was time-barred. 2. Whether the District Court erred in granting summary

judgment in favor of defendants by concluding that defendants owed no duty to the client in respect to certain alleged errors. The Lers owned a service station and garage in a small town in eastern Montana. In 1978 they began negotiations to sell this The parties agreed to a sale price

business to Mr. and Ms. Boles.

of $65,000, to be paid over a term of ten years pursuant to a contract for deed. draft the contract. The parties agreed that an attorney should Attorney Richard Simonton was retained for

this purpose. He testified by deposition that he represented both parties. Each party paid half of the fees.

On September 22, 1978, the parties met in the offices of Richard Simonton and signed the contract for deed. The contract

signed by the parties contained a default clause, which provided: And in case of the failure of said Parties of the Second Part to make either of the payments, or interest thereon or any part thereof or perform any of the covenants on

their part hereby made and entered into, then at the election of the First Parties, the whole of said payments and interest provided for herein, shall become immediately due and payable and this Contract shall at the option of said First Parties be forfeited and determined by giving to said Second Parties ninety (90) days notice in writing of the intention of the First Parties to cancel and determine this Contract, setting forth in said notice the amount due on said Contract and the time and place when and where payment can be made by said Second Parties. IT IS MUTUALLY UNDERSTOOD AND AGREED by and between the Parties to this Contact that ninety (90) days is a reasonable and sufficient notice to be given to said Second Parties in case of failure to perform any of the covenants on their part hereby made and entered into, and shall be sufficient to cancel all obligations hereunto on the part of the said First Parties and fully reinvest them with all right, title and interest hereby agreed to be conveyed, and the Parties of the Second Part shall forfeit all payments made by them on this Contract and any right, title and interest in all buildings, fences or dther improvements whatsoever, and such payments and improvements shall be retained by the said Parties of the First Part, in full satisfaction and as a reasonable rental for the property above described and in liquidation of all damages by them sustained and they shall have the right to re-enter and take possession of the premises aforesaid. IT IS FURTHER AGREED that the Parties of the First Part in addition to all remedies set forth herein, shall have all other remedies available to them at law and in equity.

The Boles began having difficulty making the monthly payment, which was in the amount of $624. The Boles missed payments due on

the first day of December 1982, January 1983, and February 1983. On February 10, 1983, Ms. Ler sent the Boles a "Notice of Intent to Cancel and Debermine Contract." This notice stated that the

Boles had failed to make the payments due on January 1, 1983 and February 1, 1983. It declared that the entire balance of 3

approximately $37,600 was accelerated and due within 90 days. On April 25, 1983, the Boles filed a court action seeking to enjoin Ms. Ler from accelerating the balance due under the

contract. The District Court granted summary judgment in favor of Ms. Ler. Boles v. That order was appealed to this Court and affirmed. Ler (1986), 222 Mont. 28, 719 P.2d 793. Ms. Ler

eventually repossessed the property. In January 1986, the Boles filed suit against Mr. Richard Simonton, alleging negligence in drafting the contract for deed. They alleged the contract should have contained a I1saving clauseu providing a grace period allowing the Boles ninety days to make up any late monthly payments, prior to acceleration of the balance due under the default clause. By deposition Mr. and Ms. Boles state

that the Lers agreed that Boles should have ninety days to make up late payments. However, Ms. Ler states by deposition that she did not remember any such agreement. The complaint also alleged damage from Boles1 inability to obtain a loan to pay the accelerated balance due because of an error in the legal description of the property in the contract for deed. In August 1986 the Boles amended the complaint to include

an allegation that Mr. Simonton failed to ensure that a preliminary title report was obtained. The Boles amended their complaint a

second time, in September 1987, to include the law firm of McDonough, Cox and Simonton. The defendants made various motions to the District Court,

including a motion to dismiss because the statute of limitations had run. These motions were supported with memorandum, depositions and affidavits. The District Court, in considering matters outside the pleadings, treated the motions as a motion for summary judgment pursuant to Rule 12(b), M.R.Civ.P. The District Court concluded

that as to the alleged negligence in the drafting of the contract for deed and the alleged omission of the saving clause, the dispositive issue was when the cause of action for attorney malpractice began to run. The court determined the cause of action accrued when the contract was signed. The contract was signed in

September 1978, and the present action was not filed until January of 1986, over seven years later. The court granted summary

judgment in favor of defendants, concluding that the suit was timebarred. As to the issues involving the error in the legal

description of the property, and the preparation of a preliminary title report, the court concluded that Mr. Simonton was only hired to draft the contact for deed; thus he owed the Boles no duty in respect to these alleged errors. The Boles urge that the District

Court erred in granting summary judgment.
I

Whether the District Court erred in granting summary judgment in favor of defendants by concluding that the cause of action was time-barred. Summary judgment is appropriate when the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56 (c), M.R.Civ. P. ; Lorash v. Epstein (Mont. 1989), 767 P.2d 1335, 1337, 46 St.Rep. 151, 153. Summary judgment is an appropriate means of disposing of claims barred by the statute of limitations. Mobley v. Hall (1983), 202

Mont. 227, 657 P.2d 604; Brabender v. Kit Manuf. Co. (1977), 174 Mont. 63, 568 P.2d 547. As the District Court noted, and we agree, the alleged negligence in drafting the contract is based on a theory of attorney malpractice. The dispositive issue in the present case

is when the statute of limitations commenced to run. In analyzing this issue, we note that traditionally the general rule has been that a cause of action for attorney

malpractice accrues when the negligent act or breach occurs, not when it is discovered (the occurrence rule) of Actions

Download 119d6db9-f0ac-470d-b138-0fd48243da9c.pdf

Montana Law