DA 10-0534

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 137N

VICTOR C. FOURSTAR, Jr.,

 Plaintiff and Appellant,

 v.

MARY L. ZEMYAN,

 Defendant and Appellant.

APPEAL FROM: District Court of the Fifteenth Judicial District,

In and For the County of Roosevelt, Cause No. DV-09-53

Honorable David Cybulski, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Victor C. Fourstar, Jr. (Self-Represented), Waymart, Pennsylvania

For Appellee:

Mary L. Zemyan (Self-Represented), Wolf Point, Montana

Submitted on Briefs: May 3, 2011

 Decided: June 14, 2011

Filed:

__________________________________________

Clerk

June 14 2011
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Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court’s 1996 Internal 

Operating Rules, as amended in 2006, the following decision shall not be cited and does 

not serve as precedent. It shall be filed as a public document with the Clerk of the 

Supreme Court and 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 Victor Fourstar appeals an Order of the District Court for the Fifteenth Judicial 

District, Roosevelt County, granting Mary Zemyan’s motion to dismiss Fourstar’s action 

against her for lack of jurisdiction. We affirm in part, reverse in part, and remand for 

further proceedings consistent with this Opinion. 

Factual and Procedural Background

¶3 In June 2009, Fourstar filed a handwritten pro se Complaint against Zemyan, 

Fourstar’s former attorney, but the District Court rejected the Complaint and other 

motions filed by Fourstar for failure to comply with the District Court’s procedural rules 

on typing and spacing. On March 22, 2010, Fourstar filed a 45-page typewritten pro se

Complaint alleging, among other things, that Zemyan committed legal malpractice and 

constructive fraud in her representation of Fourstar, and that Zemyan breached her 

fiduciary duty to Fourstar. 

¶4 Fourstar had hired Zemyan to represent him in several cases including a 

malpractice case Fourstar had filed against his federal defenders in a criminal action, a 

civil rights complaint against a former tribal criminal investigator, and a federal habeas 
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corpus claim. Fourstar alleged in his Complaint that Zemyan missed various filing 

deadlines, withheld files from Fourstar, colluded with Fourstar’s adversaries in one 

proceeding, and overcharged him for her legal representation. He further alleged that 

Zemyan’s negligence resulted in the dismissal of his claims. Along with his demands for 

compensatory and punitive damages, Fourstar asked the District Court to compel the 

Office of Disciplinary Counsel (ODC) and the Commission on Practice (COP) to suspend 

Zemyan’s license to practice law.

¶5 Zemyan filed a Motion to Dismiss for Lack of Jurisdiction on May 10, 2010, 

alleging that Fourstar filed his Complaint because he did not receive a favorable response 

from the ODC regarding the ethics complaint Fourstar filed against Zemyan in January 

2009. Zemyan points out in her motion that the District Court lacks subject matter 

jurisdiction over this case because this Court possesses exclusive jurisdiction in all 

matters involving the conduct and disciplining of all persons practicing law in Montana. 

¶6 In its September 29, 2010 Order consisting of only two sentences, the District 

Court granted Zemyan’s motion, dismissed this case with prejudice, and sealed the entire 

file. Fourstar now appeals the District Court’s Order.

Discussion

¶7 Whether a court has subject matter jurisdiction is a question of law which we 

review for correctness. Billings Gazette v. State of Montana, 2008 MT 287, ¶ 6, 345 

Mont. 385, 190 P.3d 1126 (citing Boe v. Court Adm’r for the Mont. Judicial Branch, 

2007 MT 7, ¶ 5, 335 Mont. 228, 150 P.3d 927). As we noted in Billings Gazette, the 

preamble to the Montana Rules for Lawyer Disciplinary Enforcement (RLDE)
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unequivocally states that this Court possesses original and exclusive jurisdiction and 

responsibility under Article VII, Section 2(3), of the Montana Constitution and the 

provisions of Title 37, chapter 61, Montana Code Annotated, in addition to its inherent 

jurisdiction, in all matters involving the conduct and disciplining of persons admitted to 

practice law in Montana. Billings Gazette, ¶ 9.

¶8 In Billings Gazette, after an attorney admitted to violating various rules of 

professional conduct, she was publicly censured by this Court. However, under the 

RLDE, the actions which constituted conduct violations remained confidential. The 

Gazette sought to obtain a copy of the disciplinary file, but the ODC and the COP refused 

to provide it citing the confidentiality requirements for lawyer disciplinary proceedings 

before the ODC and the COP. The Gazette filed suit in the First Judicial District Court, 

Lewis and Clark County. The District Court determined that it did not have the authority 

to order the ODC or the COP to release documents that are protected by the rules 

promulgated by this Court under its constitutional authority, thus the court dismissed the 

Gazette’s petition on the ground that it lacked subject matter jurisdiction. Billings 

Gazette, ¶¶ 1-5. On appeal, we affirmed noting that “ ‘no Montana district judge has 

jurisdiction to sit in the judgment of the Supreme Court of Montana.’ ” Billings Gazette, 

¶ 10 (citing Boe, ¶ 11; Goetz v. Harrison, 153 Mont. 403, 457 P.2d 911 (1969)). 

¶9 Similarly, in the case sub judice, we hold that the District Court was correct in

concluding that it does not have the authority to compel the ODC or the COP to take 

action of any kind. Thus, we affirm the District Court on this issue. However, we further 

hold that the District Court does have jurisdiction over the legal malpractice claims that 
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Fourstar raised in his Complaint. Thus, the court was incorrect in dismissing Fourstar’s 

entire action against Zemyan without at least considering Fourstar’s Complaint and filing 

appropriate findings of fact and conclusions of law as to the malpractice claims.

¶10 This Court has on many occasions stated that a complaint should not be dismissed 

for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no 

set of facts which would entitle him to relief. Sinclair v. Burlington Northern & Santa Fe 

Ry., 2008 MT 424, ¶ 25, 347 Mont. 395, 200 P.3d 46 (citing M. R. Civ. P. 12(b)(6); 

Reidelbach v. Burlington Northern & Santa Fe Ry., 2002 MT 289, ¶ 14, 312 Mont. 498, 

60 P.3d 418). Moreover, when considering a motion to dismiss under M. R. Civ. P. 

12(b)(6), all well-pleaded allegations and facts in the complaint are admitted and taken as 

true, and the complaint is construed in a light most favorable to the plaintiff. Sinclair,

¶ 25; see also Western Security Bank v. Eide Bailly LLP, 2010 MT 291, ¶ 55, 359 Mont. 

34, 249 P.3d 35.

¶11 Based on the foregoing, we hold that the District Court erred in dismissing

Fourstar’s Complaint insofar as the Complaint alleged professional negligence against 

Zemyan. Accordingly, we reverse the District Court’s order of dismissal to that extent 

and we remand this case to the District Court with instructions that the court carefully 

review Fourstar’s Complaint and that it conduct such further proceedings as are necessary 

to resolve Fourstar’s claims of professional negligence against Zemyan. Any such 

resolution shall include the entry of appropriate findings of fact and conclusions of law.

¶12 Affirmed in part, reversed in part and remanded for further proceedings consistent 

with this Opinion.
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/S/ JAMES C. NELSON

We Concur:

/S/ MIKE McGRATH

/S/ MICHAEL E WHEAT

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS