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 C ourt 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, P ennsylvania For Appellee: Mary L . Z emyan(Self

-Represented) ,Wolf Point, Montana Submitted on Briefs: May 3, 2011 Decided: June 14, 2011 Filed:

__________________________________________ Clerk June 14 20112

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. I t shall be filed as a public document with the Clerk of the Supreme Court and its casetitle, 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 Judic ial District, Roosevelt County, granting Mary Zemyan’s motion to dismiss Fourstar’s action ag ainst her for lack of jurisdiction
. We affirm in part, reverse in part , and remand for further proceedingsconsistent with this Opinion
. **Factual and Procedural Background**  ¶3 In June 2009, Fourstar filed a handwritten pro se C omplaint against Zemyan, Fourstar’s former attorney, but the District Court rejected the Complaintand other motions file dby Fourstar for failure to comply with the District Court’s procedural rules on typing and spacing. OnM arch 22, 2010, Fourstar filed a 45
-page typewritten pro se C omplaint alleging, among other things, that Zemyan committed legal malpractice and constructive fraud in her representation of Fourstar , and that Zemyanb reach ed 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 ag ainst a former tribal criminal inve stigator, and a federal habeas3

corpus claim
. F ourstar alleged in his C om plaint 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) andthe Commissio n on Practice (COP ) to suspend Zemyan’s license to practice law. ¶5 Zemyan filed a Motion to Dismiss for Lack of J urisdiction on May 10, 2010, al leging that Fourstar filed his C omplaint because he did not receive a favorable response from the ODC regarding th e ethics complaint Fourstar filed ag ainst Zemyan in January 2009. Z emyan 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 con duct and disciplining of all persons practicing law in Montana. ¶6 In its September 29, 2010 Order consisting of only two sentences, t he District Court granted Zemyan’s motion, dismissedthis case with prejudice , and sealedthe entire file
. Fourstar now app eals the District Court’s Order. **Discussion** ¶7 Whether a court has subject matter jurisdictioni s a question of law which we
rev iew 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)4

unequivocally state sthat this Court possesses original and exclu sive jurisdiction and responsibility under ArticleVII, 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 discipl ining 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 actionsw

hich constituted conduct violations remained confidential. The Gazette sought to obtain a copy of the disciplinary file, but the ODCand the C OP refus ed to prov ide itc iting th e confidentiality requirements f or l awyer disciplinary proceedings b efore theODC 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 o rder the ODC or the COPt o release documents that are protected by the rules promu lgated 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 h as 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 wa s 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 C ourt does have jurisdiction over the legal malpractice claim sthat5

Fourstar raised in his Complaint. Thus, the court was incorrect in dismissing Fourstar’s entire action against Zemyan without at le ast considering Fourstar’s Complaintand filing appropriate findingsof 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 fa ilure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. S inclair v. Burlington Northern & Santa Fe Ry., 2 008 MT 424, ¶ 25, 347 Mont. 395, 200 P.3d 46 (citing M. R. Civ. P. 12(b)(6); R ei delbach v. Burlington Northern & Santa Fe Ry. , 2002 MT 289, ¶ 14, 312 Mont. 498, 60 P.3d 418). M oreover, when considering amotion to dismiss under M. R. C iv. P. 12(b)(6), all well
-pleaded allegations and facts in the complaint are admitted and taken as true, and thecomplaint is construed in a light most fa vorable to the plaintiff. S inclair, ¶ 25; s ee 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 pro fessional negligence ag ainst Ze m yan. Accordingly, we rev erse 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
rev iew Fourstar’s Complaint and that it conduct such further proceedings as are necessary to resolve Fourstar’s claims of pro fessional negligence ag ainst Ze myan. A

ny 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.6 /S/ JAMES C. NELSON

We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS