DA 11 - 0235 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 288N PAMELA JO POLEJEWSKI, Plaintiff and Appellant, v. MEGHAN LULF - SUTTON, Defendant and Appellee.
APPEAL FROM: District C ourt of the Eighth Judicial District,

In and For the County of Cascade, Cause No. ADV 09 - 794 Honorable David G. Rice , Presiding Judge COUNSEL OF RECORD:

For Appellant: Pamela JoPolejewski (self -represented),Libby, Montana For Appellee : Bradley J. Luck, Isaac M. Kantor; Garlington, Lohn & Robinson, Missoula, Montana Submitted on Briefs: October 19, 2011 Decided: November 15, 2011 Filed:

__________________________________________ Clerk November 15 20112

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by me morandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition sh all be included in this Court ’ s quarterly list of noncitable cases published in the Pacif ic Reporter and Montana Reports . ¶2 The Eig

hthJudicial District Court, CascadeCounty, granted summary judgment to Meg han Lulf - Sutton (Lulf

- Sutton), concluding that Pame la Jo Polejewski ’ s (Polejewski) legal malpractice claim ag ainst her was barred by Montana ’ s three -year statute of limitations for such claims. Polejewski appeals from this order. ¶3 Lulf

- Sutton represented Polejewski in a criminal matter filed in Cascade C ounty Justice Court in late 2005. Following an animal cruelty investigation, P olejewski had been charged with 130 counts of failure to vaccinate, 138 counts of failure to tag, and six counts of animal cruelty. Over 200 animals ranging from horses to g erb ils were seized. Lulf - Sutton moved to suppress much of this evidence, but her motion was denied by the court. In a parallel proceeding all partiesf

iled a joint stipulation to provide for the welfare of the animals , but Polejewski failed to adhere to theagreement. ¶4 Polejewski claims that at some point during the course of representation LulfSutton referred to the prior charges, telling

her “ I know we can win this case. ” However, Polejewski signed a plea ag reement at Lulf

- Sutton ’ s advice on January 27, 2 006. She pledg uilty to nine charges of fa ilure to v accinate and failure to tag, and no contest to a3

sin gle charge of cruelty to animals. Lulf - Sutton moved to withdraw as c ounsel of record on February 6 , 2006, stating that her client had been sentenced and the case was closed. Polejewski filed her notice of appeal on the same day, requesting that she drop her guilty plea to the animal cruelty chargeo n the basis that there was no evidence to support it . She also argued that Lulf - Sutton promised her that there would be a “ follow up program in regard to the #140 dogs involved in my no kill refuge program. ”S he also stated her belief that she should be allowed a “ grace period”in which to consider her plea. On February 23, the justice court ordered that Polejewski had waived her right to appeal pursuant to the plea agreement. ¶5 Polejewski filed a leg al malpractice complaint against Lulf - Sutton on July 27, 2009. Her complaint includes the following allegations of malpractice against LulfSutton: 1. Failing to appeal the denial of the motion to suppress evidence; 2. Leading Polejewski to believe that the case would be taken to trial; 3. Taking a plea agreement despite telling Polejewski that she could win the case; 4. Leading Polejewski to believe she was also representing her in a civil suit; 5. Failing to change venue despite alleged prejudice against Polejewski; 6. Letting authorities enter Polejewski ’ s property without challenge; 7. Not seeking a gag order despite numerous articles published in the local media regarding the matter; 8. Not seeking the return of small animals noted in the plea agreement. ¶6 We review a district court ’ s summary judgment ruling de novo, applying the same M. R. Civ. P. 56 criteria used by the district court. Watkins Trust v. Lacosta , 2004 MT 144, ¶ 16, 321 Mont. 432, 92 P.3d 620. All reasonable inferences which may be drawn4

from the offered proof must be drawn in favor of the party opposing summary judgment. Watkins Trust, ¶ 16. ¶7 A criminal defendant “must file a malpractice complaint within three years of discovering the act, error or omission, ”reg ardless of

w hether postconviction relief is sought or granted. Ereth v. Cascade Co. , 2003 MT 328 , ¶ 26 , 318 Mont. 355, 81 P.3d 463 . Section 27 - 2 -206 , MCA, provides this time limit : An action ag

ainst anattorney licensed to practice law in Montana or a paralegal assistant or a legal intern employed by anattorney based upon the person ’ s alleged professional negligent act or for error or omission in the person ’ s practice must be commenced within 3 years a fter the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission, whichever occurs last, but in no case may the action be commenced af ter 10 years from the date of the act, error, or omission. Section 27 - 2 -206 , MCA. ¶8 The District Court determined Polejewski was aware of the facts forming the basis of her malpractice claim by the time she entered her plea. The District Court looked to Polejewski ’ s own words to establish this awareness: “Appellant/defendant wages multiple attempts to notify the courts she believes she has been misrepresented and lied to by her attorney and prosecuting attorneys at her Plea Agreement. F irst attempt was Notice of Appeal and Motion for Stay and Execution February 6, 2 006. ” ¶9 The District Court also found that any damages Polejewski may hav e su ffered occurred at the very latest when the justice court entered its sentencing order on January 29, 2006. The District Court also made note that several of Polejewski ’ s allegeddamages5

occurredeven before this date, and thusher malpractice claim wa s time barred by § 27 - 2 - 206 , MCA. ¶10 We hav

e determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for n oncitable memorandum opinions . Clearly, there was sufficient evidence to support the District Court’s findings of fact , and the legal issues are controlled by settled Montana law, which the District Court correctly interpreted. ¶11 Affirmed. /S/ MIKE McGRATH We concur: /S / MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ JIM RICE