No. 86-419 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

TERRY LEE KERR, 

Plaintiff and Appellant, 

-vsGARY E. WILCOX, RALPH ALLEN BECK, 

and JOHN L. ADAMS, Court Appointed 

Attorneys, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry Lee Kerr, pro se, Carnelian Bay, California 

For Respondent : 

Crowley Law Firm; Ronald Loddegs, Billings, Montana 

Gary E. Wilcox, Billings, Montana 

FEe 9 - 1987 

Filed: 

Submitted on Briefs: Dec. 18, 1986 

Decided: February 9, 1987 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is a pro se appeal from the District Court of the 

Thirteenth Judicial District, in and for the County of 

Yellowstone, State of Montana. Appellant appeals from a 

summary judgment granted defendants. Appellant had sought 

actual and punitive damages in the amount of $30,000,000 

alleging violation of his civil rights resulting from a civil 

commitment ordered by the District Court placing appellant in 

the State Mental Hospital. We affirm the District Court's 

summary judgment. 

Terry Lee Kerr (appellant) first became involved with 

the judicial system of the State of Montana in 1981, when 

charges were filed against him in Yellowstone County by the 

County Attorney. Two counts were filed, (I) intimidation, a 

felony, which alleged that the appellant communicated to a 

female friend a threat to inflict physical harm were she to 

testify on a criminal charge filed against the appellant, and 

(11) criminal mischief, a misdemeanor, which alleged that 

appellant knowingly or purposely injured or destroyed the 

property of the residence of the female friend. 

Resulting from said charges, appellant was arrested and 

Gary E. Wilcox was appointed to represent him. Based upon 

the results of a psychiatric evaluation, Mr. Wilcox filed a 

motion to suspend the proceedings, alleging that the 

appellant was suffering from a mental disease and did not 

understand the nature of the charges against him and was 

unable to assist in his defense. The court granted this 

motion in December 1981. Mr. Wilcox further made a motion to 

withdraw as counsel, which was also granted. 

As a result of these proceedings, the District Court 

filed an order of commitment. In its order the court found 
that appellant lacked the mental capacity to continue in this 

proceeding, for he did not understand the nature of the 

charges brought against him and was therefore unable to 

assist in his own defense. The order commited the appellant 

to the custody of the director of the Department of 

Institutions, and recommended that he be placed in the State 

Hospital at Warm Springs, Montana, which occurred in December 

1981. 

Some months later, appellant was adjudged mentally fit 

to stand trial and was returned to Billings for a jury trial 

which began on September 12, 1982. Mr. Beck, and later Mr. 

Adams, were appointed to represent appellant in this 

proceeding. During the course of the trial, expert testimony 

was presented concerning his mental condition. The jury 

returned a verdict of not guilty for each count by reason of 

mental disease or defect. On September 30, 1982, the 

District Court, pursuant to Title 46, Chapter 14, Part 3, 

MCA, held a sentencing hearing. At the conclusion of the 

hearing, the court sentenced appellant to a term of ten years 

to the Department of Institutions. 

In April 1983, the appellant appealed this judgment to 

this Court requesting that the cause be vacated and the case 

remanded to the District Court for commitment proceedings 

under SS 41-14-301 through 41-14-304, MCA. The grounds for 

appellant's action were that instead of being committed to 

the State Hospital at Warm Springs, he was taken by mistake 

to the State Penitentiary, and it was necessary thereafter 

for his counsel to have him released and sent to the State 

Hospital pursuant to the original commitment. 

In October 1983, through agreement of counsel following 

a hearing, the appellant was released under the condition 

that he would receive psychiatric treatment in Yellowstone 

County. A plan was worked out whereby he would live with his 
sister in Yellowstone County under certain conditions 

approved by the court. 

In this pro se appeal, it is difficult to set forth the 

issues the appellant desires to cover. Some thirteen 

complaints were made about counsel Wilcox and are probably 

also applicable, to some extent, against the other two 

defendants. We will consider the principal issue, that being 

whether the District Court erred in granting all three 

counsels' motions for summary judgment dismissing appellant's 

complaint. 

In doing so we will handle each defendant separately. 

As to Mr. Wilcox, we affirm the District Court's order 

granting summary judgment. It is the position of Wilcox that 

the motion for summary judgment was properly granted and the 

complaint was justifiably dismissed. We agree. It is clear 

that this case presents no genuine issue of material fact. 

See Rule 56 (c), M.R.Civ.P. 

As previously noted, Wilcox represented appellant for a 

limited period of time, from November 10, 1981, to December 

10, 1981. He could not conceivably be held responsible for 

representation of the appellant for anything that happened 

after that period of time. 

The complaint filed by appellant alleged that Wilcox, 

while representing him, violated his right pursuant to 

§§ 53-21-115 through 53-21-119, MCA. The District Court 

properly noted that no proceeding against the appellant was 

taken by the state of Montana pursuant to those statutes, 

which involve civil commitments for treatment of seriously 

mentally ill individuals. Here Wilcox represented appellant 

on criminal charges, and as such was obligated to represent 

him pursuant to Titles 45 and 46 of the Montana Code 

Annotated. Sections 53-21-111 et seq., MCA, are inapplicable 

to representation of the appellant because they are 
applicable only to civil proceedings not criminal 

proceedings. We find no error in the granting of summary 

judgment by the District Court as to Mr. Wilcox. 

As to defendants Beck and Adams they did not appear as 

counsel of record for the appellant until he had been found 

capable of standing trial by a psychiatrist at the State 

Hospital and returned to Billings for trial. At trial in 

September 1982, the jury returned a verdict of not guilty by 

reason of mental disease or defect and thereafter the 

District Court committed appellant to the custody of the 

Director of the Montana Department of Institutions. It 

should be noted that counsel Beck at that time objected to 

this judgment, alleging that it was inappropriate. 

Thereafter the appellant was mistakenly sent to the State 

Prison instead of the State Hospital. 

Shortly afterward, within a week, counsel Beck learned 

of the mistaken placement and immediately contacted counsel 

for the Department of Institutions in Helena, Montana, the 

District Judge and the County Attorney. The District Court 

issued an order within a week of this notification, 

transferring the appellant to the State Hospital and counsel 

Beck filed an appeal to the Supreme Court as to the sentence 

given by the District Court. The District Court opinion 

granting summary judgment indicates that Beck opposed the 

sentence under 5 46-14-312, MCA. 

During the appeal process the Attorney General agreed 

with counselors Beck and Adams that it was an improper 

sentence. This Court vacated the sentence and remanded it to 

the District Court for a new dispositional hearing, pursuant 

to $$ 46-14-301, MCA. It was at this dispositional hearing 

that the appellant's "sentence" to Warm Springs State 

Hospital was vacated and he was released on specific 

conditions. 
As with Mr. Wilcox, we find that the District Court 

properly granted summary judgment for Beck and Adams. Here, 

the party moving for summary judgment showed there was no 

genuine issue of material fact before the court and the court 

properly granted summary judgment. See Harlan v. Anderson 

(1979), 169 Mont. 447, 548 P.2d 613; Rumph v. Dale Edwards, 

Inc. (1979), 183 Mont. 359, 600 P.2d 163. 

The judgment of the District Court in favor of the 

defendants Wilcox, Adams and Beck is affirmed. 

We concur: