DA 09-0119

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 371N

GARY and BARBARA SCHUMACHER,

Plaintiffs and Appellants,

v.

DAVID GALLIK and STUART LEWIN,

Defendants and Appellees.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. ADV 07-379

Honorable Thomas M. McKittrick, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Patrick F. Flaherty, Attorney at Law, Great Falls, Montana

For Appellees:

Dennis Tighe, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls,

Montana

Submitted on Briefs: October 8, 2009

Decided: November 3, 2009

Filed:

__________________________________________

Clerk

November 3 2009
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Justice Brian Morris delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

OperatingRules, as amended in 2006, the following memorandumdecision shall not be cited

as precedent. It shall be filed as a public document with the Clerk ofthe Supreme Court and

its case title, Supreme Court 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 Gary and Barbara Schumacher (Schumachers) appeal the order oftheCascadeCounty

District Court, Eighth Judicial District, dismissing their claims as time barred, barred by the

doctrine of judicial estoppel, and granting summary judgment to David Gallik and Stuart

Lewin. We affirm.

¶3 Lewin and Gallik represented the Schumachers in a federal qui tam action against a

third party underthe False Claims Act, 31 U.S.C. § 3730. Schumachers entered into a series

of contingency fee agreements with Lewin and Gallik. The parties signed the final

agreement in August 2001.

¶4 The U.S. Government eventually settled the federal qui tam action against the third

party thereby entitlingSchumachersto a portion ofthe $4.25 million settlement. Lewin and

Gallik received one-half of Schumachers’ $829,500 settlement share pursuant to their

contingency fee agreement. The U.S. Government separately paid attorney’sfees and costs

to Gallik and Lewin in the amount of $315,000 pursuant to 31 U.S.C. § 3130(d)(2). The

federal court approved the settlement in May 2004. Schumachers waited until March 22,

2007, to bring this action.
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¶5 The District Court first concluded that no law or public policy precluded the inclusion

of a statutory fee and contingency fee provision in the fee agreement between the

Schumachers and Gallik and Lewin. The District Court further determined that the threeyear statute of limitations contained at § 27-2-204, MCA, for tort claims barred

Schumachers’ malpractice claims. The court reasoned that the cause of action had arisen in

August 2001 when the Schumachers entered into the final contingency agreement. The

District Court also determined that collateral estoppel barred the Schumachersfromclaiming

that Gallik and Lewin had misrepresented their fees, expenses, and costsin their application

for statutory fees related to the 2004 settlement. The court finally determined that the twoyearstatute oflimitations barred the Schumachers’ claimthat Gallik and Lewin had engaged

in deceit for failing to disclose fully their fee agreement. Schumachers appeal.

¶6 We review de novo a district court’s grant of summary judgment based on the same

criteria used by the district court. Cobb v. Saltiel, 2009 MT 171, ¶ 21, 350 Mont. 501, 210

P.3d 138. The moving party must establish the absence of genuine issues of material fact

and entitlement to judgment as a matter oflaw. Cobb, ¶ 21. The opposing party must raise a

genuine issue of material fact to defeat the motion. The opposing party must present

material evidence beyond mere conclusory orspeculative statements. Cobb, ¶ 21. We have

determined to decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal

OperatingRules, as amended in 2006, that provide for memorandumopinions. It is manifest

on the face ofthe briefs and record before usthat the District Court correctly determined that
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the absence of any genuine issues of material fact entitled Gallik and Lewin to summary

judgment.

¶7 We affirm.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH

/S/ JOHN WARNER

/S/ JAMES C. NELSON

/S/ JIM RICE