DA 13-0216

IN THE SUPREME COURT OF THE STATE OF MONTANA

2014 MT 9

ROBERT SPOJA,

 Plaintiff and Appellant,

 v.

DUSTE WHITE, BRIAN CHARLES

TIPP, and TIPP & & BULEY, P.C.,

 Defendants and Appellees.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV-2010-1136

Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Robert Spoja, self-represented; Billings, Montana 

For Appellee:

Torrance L. Coburn, Tipp & Buley, P.C.; Missoula, Montana 

Submitted on Briefs: December 3, 2013

 Decided: January 14, 2014

Filed:

__________________________________________

Clerk

January 14 2014
2

Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Did the District Court err when it granted judgment as a matter of law, finding Spoja 

had presented no evidence of malicious prosecution?

¶2 Did the District Court err when it granted summary judgment on Spoja’s abuse of 

process claim?

¶3 Did the District Court err when it granted summary judgment on Spoja’s attorney 

deceit claim?

¶4 Did the District Court err when it required Spoja to pay the costs incurred and paid 

by Defendant Tipp, including costs associated with Tipp’s expert witness?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 The present civil suit stems from two prior legal proceedings; a sentencing hearing 

and another civil suit. In February, 2005, Public Defender Robert Spoja (Spoja) represented 

Duste White (White) regarding his probation revocation in Fergus County. At the sentencing 

hearing, Spoja recommended that White’s sentence run concurrently with sentences from 

other jurisdictions. The court sentenced White to a term of five years commitment to the 

Department of Corrections (DOC) but made no reference as to whether the sentence was to 

be served concurrently with other sentences. The court clerk’s minute entry, however, notes 

that White’s sentence was to be served concurrently with a sentence in Cascade County. 

Records at the prison calculated White’s discharge date to be June 1, 2010. White petitioned 

the District Court to correct his sentence, citing the clerk’s minute entry. On December 18, 

2008, upon the motion of the deputy county attorney, a court entered an Amended ReSentencing Order. That order allowed White to serve his term concurrently with other 

sentences, which resulted in a discharge date of October 28, 2007 rather than June 1, 2010. 

White was subsequently released from Montana State Prison on December 24, 2008. 
3

¶6 Based on this sentencing discrepancy, White believed that he was incarcerated for 

fourteen months longer than his actual sentence. Bryan Tipp of Tipp & Buley, P.C., 

represented White in a civil action against Spoja, Spoja’s father, and the law firm of Spoja’s 

father for breach of contract, malpractice and negligence related to the sentencing. Tipp 

brought the claim after meeting with White and reviewing the clerk of court’s minutes from 

the sentencing hearing. Spoja retained counsel to defend against the suit. The parties 

disagreed about the applicable statute of limitations and whether White was unduly 

incarcerated. In March 2010, Tipp received transcripts of White’s sentencing hearing. The 

transcripts showed that the sentencing court had not ordered concurrent sentences. Tipp 

moved to dismiss the case in June 2010, but never informed Spoja that he had dismissed the 

case.

¶7 All of this gave rise to the present lawsuit. Spoja filed a civil action for claims of 

attorney deceit, malicious prosecution, and abuse of process against Duste White, Tipp & 

Buley, and Tipp in his individual capacity. Spoja contended that Tipp had filed White’s civil 

suit in clear violation of the statute of limitations and without any examination of the facts. 

Spoja further alleged that Tipp intentionally failed to inform him that the suit had been 

dismissed. Spoja deposed Tipp and Tipp’s expert on attorney standard of care, Cynthia Ford 

(Ford). 

¶8 The District Court entered summary judgment against Spoja’s attorney deceit and 

abuse of process claims. After Spoja rested his case, the District Court granted Tipp’s 

motion for judgment as a matter of law on the malicious prosecution claim. Finally, the 

District Court ordered Spoja to reimburse Tipp for filing fees, depositions of parties, and the 
4

deposition of Ford. Spoja now appeals the dismissal of his claims and the assignment of 

costs.

STANDARDS OF REVIEW

¶9 We review de novo a court’s judgment as a matter of law. Johnson v. Costco 

Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. Rulings on summary judgment 

are reviewed de novo. Svaldi v. Anaconda-Deer Lodge County, 2005 MT 17, ¶ 12, 325 

Mont. 365, 106 P.3d 548. 

DISCUSSION

¶10 Did the District Court err when it granted judgment as a matter of law, finding Spoja 

had presented no evidence of malicious prosecution?

¶11 Judgment as a matter of law is appropriate when there is an absence of any evidence 

which would justify submitting an issue to the jury. Johnson, ¶ 13. All evidence and any 

legitimate inferences that might be drawn from that evidence must be considered in the light 

most favorable to the party opposing judgment as a matter of law. Williams v. Union Fid. 

Life Ins. Co., 2005 MT 273, ¶ 57, 329 Mont. 158, 123 P.3d 213. 

¶12 In a malicious prosecution claim, the plaintiff bears the burden of proving that “(1) a 

judicial proceeding was commenced against the plaintiff; (2) the defendant was responsible 

for instigating, prosecuting, or continuing a judicial proceeding; (3) there was a lack of 

probable cause for the defendant’s acts; (4) the defendant was actuated by malice; (5) the 

judicial proceeding terminated favorably for the plaintiff; and (6) the plaintiff suffered 

damage.” Hughes v. Lynch, 2007 MT 177, ¶ 12, 388 Mont. 214, 164 P.3d 913. “One of the 

central issues to be determined in a malicious prosecution claim is whether the party that 
5

instigated the underlying lawsuit lacked probable cause for doing so.” Seltzer v. Morton, 

2007 MT 62, ¶ 72, 336 Mont. 225, 154 P.3d 561 (citing Plouffe v. Mont. Dept. of Pub. 

Health & Human Servs., 2002 MT 64, ¶ 20, 309 Mont. 184, 45 P.3d 10). We have 

previously held that an individual has probable cause to bring civil litigation when they have 

a reasonable belief in the existence of facts upon which the claim is based, and reasonably 

believe that those facts give rise to a valid claim. Hughes, ¶ 16; Plouffe, ¶¶ 18-19.

¶13 Spoja contends that White’s suit was barred by the statute of limitations under Ereth 

v. Cascade Co., 2003 MT 328, 318 Mont. 355, 81 P.3d 463, and therefore, that Tipp should 

have known that no valid claim existed. But attorneys are not required to predict and 

exhaust every possible counter-argument to a complaint before deciding to file. An 

examination of probable cause must consider the facts known to the suing party at the time 

the lawsuit was filed. Seltzer, ¶ 72. The issue is whether, at the time he filed the complaint, 

Tipp had a reasonable belief in facts that would cause a reasonable person to file the suit. 

The applicable statute of limitations was disputed by both parties and never ruled on by the 

District Court. In correspondence between the parties, Tipp argued that the statute had not 

started running until White suffered actual damages from his prolonged incarceration, while 

Spoja contended the statute started running when White discovered the error, citing to Ereth. 

Tipp disputed the application of Ereth to the White suit, and maintained his theory that the 

case was still timely because of the date of damages. The correspondence between Tipp and 

Spoja’s attorney demonstrates that Tipp had a reasonable legal argument for the timeliness of 

White’s case. Spoja presented no evidence that Tipp was unreasonable in disputing the 

applicability of Ereth, or that a reasonable attorney would not have filed the suit. In light of 
6

the undisputed evidence here, Tipp reasonably believed that White’s incarceration gave rise 

to the suit. 

¶14 Spoja also contends that since White’s sentence was actually correct, Tipp’s probable 

cause is factually disputable. When Tipp filed the lawsuit, however, the facts known to both 

parties led them to reasonably believe that a valid claim existed. Tipp relied on the clerk’s 

minutes to believe that a concurrent sentence should have been served, as did the deputy 

county attorney who moved to amend White’s sentence, and the judge who found the 

evidence sufficient to grant the motion. Although Tipp could have acted more diligently in 

obtaining the transcripts, Spoja made no argument and presented no evidence that such an 

omission was unreasonable or imprudent. In fact, even Spoja initially believed he was liable 

for an error in White’s sentence, testifying that he “was horrified that I thought I had caused 

somebody else harm” because he had “caused a guy to sit in prison too long” and feared a 

“huge civil judgment” against him. The undisputed evidence demonstrates that, at the time 

the lawsuit was filed, all parties reasonably believed the facts gave rise to a valid claim. 

¶15 Spoja also argues that probable cause is an objective standard, and therefore he is 

entitled to argue that a reasonably prudent and cautious person would have consulted the 

official transcripts before filing suit. That objective “reasonably prudent and cautious” 

standard, however, is applied to “the facts known to the party initiating the legal action . . . .” 

Plouffe, ¶ 18 (emphasis added). The facts known to Tipp caused many reasonably prudent 

legal minds to conclude that White had been unduly incarcerated, and Spoja alleged no facts 

known by Tipp that would cast his reasonableness or cautiousness into dispute. A jury trial 

over whether Tipp should have investigated further would raise questions of a lawyer’s duty 
7

and standard of care, which is why the District Court found that Spoja’s case “was related 

more to a negligence claim” than a malicious prosecution claim. 

¶16 Finally, Spoja claims that he has demonstrated evidence of malice; Tipp said that 

Spoja “f’d up”; Tipp did not tell Spoja that the lawsuit was dismissed; and the lawsuit 

included Spoja’s father without any factual basis. But if one element of malicious 

prosecution is not proven by prima facie evidence, judgment as a matter of law is warranted. 

Plouffe, ¶ 16 (citing Orser v. State, 178 Mont. 126, 135, 582 P.2d 1227, 1232 (1978)). 

Since Spoja has failed to raise any evidence that Tipp lacked probable cause, he has failed to 

demonstrate a prima facie malicious prosecution claim, so his allegations of malice are 

irrelevant. 

¶17 Did the District Court err when it granted summary judgment on Spoja’s abuse of 

process claim?

¶18 Summary judgment is appropriate when no genuine issues of material fact exist and 

when the moving party is entitled to judgment as a matter of law. Feller v. First Interstate 

Bancsystem, Inc., 2013 MT 90, ¶ 16, 369 Mont. 444, 299 P.3d 338 (citing M. R. Civ. P. 

56(c)(3)). We construe all facts in favor of the non-movant in determining whether an issue 

of material fact exists. LaTray v. City of Havre, 2000 MT 119, ¶ 15, 299 Mont. 449, 999 

P.2d 1010. If the movant demonstrates the absence of any material issue of fact and 

entitlement to judgment, the non-movant must establish with substantial evidence that a 

genuine issue of material fact does exist or that the movant is not entitled to prevail under the 

law. Semenza v. Kniss, 2008 MT 238, ¶ 18, 344 Mont. 427, 189 P.3d 1188.
8

¶19 A plaintiff alleging abuse of process must prove a willful use of process not proper in 

the regular conduct of the proceeding, and that the process was used for an ulterior purpose. 

Hughes, ¶ 21. In Judd v. Burlington Northern & Santa Fe Ry., 2008 MT 181, ¶ 25, 343 

Mont. 416, 186 P.3d 214, defendants had demonstrated facts proving a proper purpose for 

their indemnity claim. Since the opposing party failed to allege or prove any ulterior 

purpose, we held that the abuse of process claim was properly dismissed. Judd, ¶ 26. Here, 

we have concluded that Tipp was confronted with sufficient probable cause to justify 

initiating the suit, thereby establishing a proper purpose for the suit. Spoja alleges that the 

suit’s ulterior purpose is to coerce him into paying White for damages. Payment of damages, 

however, is a legitimate purpose for civil litigation. As we ruled in Judd, it is not an abuse of 

process to make a claim “for the legitimate purpose of attaining all available recourse” such 

as payment of damages. Judd, ¶ 26. The District Court properly dismissed Spoja’s abuse of 

process claim because no fact demonstrated Tipp acted with an improper ulterior purpose.

¶20 Did the District Court err when it granted summary judgment on Spoja’s attorney 

deceit claim?

¶21 Unlike malicious prosecution and abuse of process, attorney deceit does not require 

that a plaintiff show an absence of probable cause or proper purpose. Instead, plaintiffs in an 

attorney deceit claim must prove than an attorney acted deceitfully, with the intent to deceive 

an adverse party, and that the party was damaged as a result of the deceit. Section 37-61-

406, MCA; LaFountaine v. State Farm Mut. Ins. Co., 215 Mont. 402, 406, 698 P.2d 410, 413 

(1985). 
9

¶22 When the facts are viewed in a light most favorable to Spoja, a trier of fact could find 

Tipp acted deceitfully and intended to do so. Tipp decided to dismiss the lawsuit without 

telling Spoja because he had “learned . . . to treat lawyers how they treated me, and since I 

wasn’t required under the law to notify you, that I did not notify you.” Spoja also alleged 

that, in an effort to exact a settlement, Tipp sued Spoja’s father without any factual or legal 

basis. That allegation was unaddressed by the District Court’s order and is never handled in 

Tipp’s brief to this Court. The transcripts aside, a trier of fact could find that Tipp sued 

Spoja with the intent to deceive him into believing that he alone was responsible for White’s 

incarceration, while simultaneously alleging under oath in a federal court that the 

responsibility for White’s wrongful incarceration lay with the Fergus County Attorney’s 

Office and the Department of Corrections. Accordingly, summary judgment dismissal of 

Spoja’s attorney deceit claim was improper.

¶23 Did the District Court err when it required Spoja to pay the costs incurred and paid 

by Defendant Tipp, including costs associated with Tipp’s expert witness?

¶24 Because we reverse on the attorney deceit claim an award of costs is not yet 

appropriate. 

CONCLUSION

¶25 For the forgoing reasons, we reverse the entry of summary judgment against Spoja’s 

attorney deceit claim, and the award of costs. We affirm the dismissal of Spoja’s malicious 

prosecution claim and the award of summary judgment against his abuse of process claim.
10

/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH

/S/ PATRICIA COTTER

/S/ LAURIE McKINNON

Justice Beth Baker, concurring.

¶26 I agree with the Court’s resolution of Spoja’s appeal and write separately to make one 

observation. 

¶27 The District Court denied summary judgment on the malicious prosecution claim 

because it determined that whether a “reasonable person” would have obtained a transcript of 

the sentencing hearing before deciding to accuse Spoja of malpractice was a question for the 

jury. The court’s contrary conclusion upon hearing the trial evidence was not in error, given 

that even the sentencing judge was persuaded to issue an amended judgment. But, in my

view, Tipp acted irresponsibly when he simply relied on the clerk of court’s minute entry in 

initiating his claim. The official record of the proceedings is the transcript, not the clerk’s 

minute entry. There is nothing speculative about the idea that confirming the content of the 

official records is more diligent than assuming the minute entry is complete and accurate. As 

the District Court observed in its summary judgment ruling, “Tipp would simply have had to 

make the request to the court reporter and, once obtaining the transcript, review it to confirm 

the other information he had available.” 

¶28 Accusing a lawyer of professional negligence is a serious matter; although the clerk’s 

minute entry and the judge’s subsequent issuance of a corrected judgment certainly lent 
11

credence to Tipp’s belief, he filed a civil action for damages against Spoja in court on the 

ground that Spoja had committed malpractice, without checking the record to confirm his 

belief. While the District Court properly assessed that Spoja’s allegations in this regard 

“related more to a negligence claim than [to] intentional acts of malice[,]” a lawyer should 

not sue another person for professional negligence based on matters occurring in open court 

without confirming the official record of the proceedings. This entire mess easily could have 

been avoided. 

/S/ BETH BAKER

Justice Laurie McKinnon joins in the concurring Opinion of Justice Baker. 

/S/ LAURIE McKINNON