No. DA 06-0063 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 317

NEIL E. SNYDER, Plaintiff and Appellant,

v. SUE ANN LOVE and JARDINE, STEPHENSON, BLEWETT and WEAVER, P.C., Defendants and Respondents.

APPEAL FROM: The District Court of the Twelfth Judicial District, In and For the County of Chouteau, Cause No. DV 2002-034, Honorable David G. Rice, Presiding Judge

COUNSEL OF RECORD: For Appellant: Robert J. Emmons, Attorney at Law, Great Falls, Montana For Respondent: Michael F. McMahon, Hughes, Kellner, Sullivan & Alke, PLLP, Helena, Montana

Submitted on Briefs: October 3, 2006 Decided: December 5, 2006 Filed:

__________________________________________ ClerkJustice James C. Nelson delivered the Opinion of the Court. ¶1 Neil E. Snyder (“Neil”) appeals from the Di strict Court’s December 21, 2005 final judgment (“judgment”) dismissing his Complain t, as amended, with prejudice. This judgment followed entry of the court’s De cember 7, 2005 Order on Motion to Dismiss setting forth the background of th is case and the rationale of the court granting Sue Ann Love’s (“Love”) and Jardine, Stephenson, Blewett and Weaver, P.C.’s (“JSBW”) (collectively “Respondents”) motion to dism iss based on M. R. Civ. P. 12(b)(6) (“Order”). We affirm.

FACTUAL AND PROCED URAL BACKGROUND ¶2 Neil’s Complaint was filed on August 21, 2002, and his Ame nded Complaint was filed on September 22, 2005. Respondents were named as de fendants. Love was at all times under consideration an attorney license d to practice law in Montana and employed by JSBW. In response to Neil’s Complaint and Amended Complaint, Respondents

moved to dismiss for failure to state a claim under M. R. Ci v. P. 12(b)(6). Neil opposed Respondents’ motion, and, following oral argum ent, the District Court entered its Order granting Respondents’ motion, followed by the judgment. Neil timely appealed. ¶3 In its Order, the District Court found that Love drafted the Last Will and Testament for Neil’s mother, Lucille B. Snyder (“Lucille”). The Will was executed on February 24, 1987. Lucille died on Novemb er 18, 1992, and her Will was admitted to probate in Cascade County Di strict Court on November 25, 1992. Neil wa s appointed Personal Representative of his mother’s estate.

2¶4 Lucille’s estate included, among other asse ts, 189 shares of st ock in Snyder, Inc. (“Stock”). A disagreement ar ose between Neil and his siste r, Lois K. Snyder (“Lois”), over the interpretation of ¶ 7 of Lucille’s Will and the ultimate distribu tion of the Stock. Neil proposed a distribution-in-k ind of the Stock, 51% to hi m and 49% to Lois, with the remaining assets of Lucille’s estate to be divided equally between Neil and his sister. Lois, on the other hand, took the position that she and Neil should each receive one half of their mother’s estate, but that Neil’s share would include 100% of the Stock. ¶5 Because of their differing pos itions, Neil ultimately filed in the District Court a Petition for Court Interpretation of Will. On January 25, 1998, the Honorable Marge Johnson, District Judge, issued her Order adopting Neil’s position—i.e., that 51% of the Stock would be distributed to Neil and 49% to Lois. Lois appealed . On May 4, 2000, this Court reversed the District Court, holdi ng that the trial court erred when it concluded

that Lucille intended to devise 51% of her Stock to Neil with the remaining 49% to Lois.

This Court concluded that under Lucille’s Will, Neil was to receive 100% of the Stock. In Re Estate of Snyder , 2000 MT 113, ¶¶ 16-18, 299 Mont. 421, ¶¶ 16-18, 2 P.3d 238, ¶¶

16-18. ¶6 Our decision prompted Neil to file suit ag ainst Respondents, alleging professional negligence in the drafting of Lu cille’s Will. As noted abov e, Neil’s Complaint was filed on August 21, 2002, and his Amended Comp laint was filed on September 22, 2005.

DISCUSSION ¶7 Our standard of review in cases such as the one sub judice is set forth in Willson v. Taylor , 194 Mont. 123, 634 P.2d 1180 (1981). There, we stated:

3A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the pl aintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R. Civ.P., has the effect of admitting all wellpleaded allegations in the complaint. In considerin g the motion, the complaint is construed in the light mo st favorable to the plaintiff, and all allegations of fact containe d therein are taken as true.

Willson , 194 Mont. at 126, 63 4 P.2d at 1182 (citati ons omitted). Pursuant to this standard of review, we will affirm the trial court’s dism issal for failure to st ate a claim only if we determine that plaintiff is not entitled to relief under any set of facts which could be proven in support of the clai m. Inasmuch as the District Court’s determination that a complaint fails to state a claim is a conclu sion of law, our re view is de novo. Powell v. Salvation Army , 287 Mont. 99, 102, 951 P.2d 1352 , 1354 (1997) (citations omitted). ¶8 Section 27-2-206, MCA, sets forth the tim e limits for filing ac tions alleging legal malpractice. This statute, in pertinent part, provides: Actions for legal malpractice. An action against an attorney licensed to practice law in Montana . . . based upon the person’s alleged professional negligent act or for erro r or omission in the person’s practice must be commenced within 3 years afte r 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 after 10 years from the date of the act, error, or omission. ¶9 As noted by the District Court, § 27-2 -206, MCA, sets forth two independent timing requirements for filing legal malpractic e actions: a three-year statute of limitations and a ten-year statute of repose. With regard to the three-year statute of limitations, in

Watkins Trust v. Lacosta , 2004 MT 144, 321 Mont. 432, 92 P.3d 620, we stated that the “discovery rule” begins the statute of limitati ons upon the discovery of the negligent act,

while the “accrual rule” provides that the statute of limitations begins when all the

4elements of a claim, including damages, ha ve occurred. Thus, for legal malpractice actions, the three-year statute of limitati ons does not begin to run until both the “discovery rule” and the “accrual rule” have been satisfied—that is , until the negligence was, or should have been, discovered, and a ll elements of the legal malpractice claim, including damages, have occurred. Watkins Trust , ¶¶ 39-40. ¶10 A different rule, however, pertains where the unconditional ten-year statute of repose is implicated. We discussed th is provision of § 27-2-206, MCA, in Joyce v.

Garnaas , 1999 MT 170, 295 Mont. 198, 983 P.2d 369. There, we stated: A statute of repose creates a substa ntive right in those protected to be free from liability after a legisla tively-determined period of time. Statutes of limitations are motivated by considerations of fairness to defendants and are intended to encour age prompt resolution of disputes by providing a simple procedural mechan ism to dispose of stale claims. Statutes of repose are based on c onsiderations of the economic best interests of the public as a whole an d are substantive grants of immunity based on a legislative balance of the re spective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists. Thus, as a general rule, a statut e of limitations is tolled by a defendant’s fraudulent concealment of a plaintiff’s injury because it would be inequitable to allow a defendant to use a statut e intended as a device of fairness to perpetrate a fr aud. Conversely, a statute of repose is typically an absolute time limit beyond which liability no longer exists and is not tolled for any reason beca use to do so would ups et the economic balance struck by the legislative body. Joyce, ¶ 14 (quoting Blackburn v. Blue Mo untain Women’s Clinic , 286 Mont. 60, 951 P.2d 1 (1997), which, in turn, relied upon a Fourth Circuit case, First United Methodist Church of Hyattsville v. United States Gypsum, Co. , 882 F.2d 862, 866 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 10 7 L.Ed.2d 1020 (1990)) (emphasis in original).

5¶11 Neil’s Complaint and Amende d Complaint alleged that Love was negligent when

she drafted and had Lucille si gn her Last Will and Testamen t on February 24, 1987. Neil alleged that Love committed professional malpra ctice by failing to draft the Will so as to specifically bequeath 51% of the Stock to Ne il and 49% of the Stock to Lois, with the remaining assets to be divi ded equally between the two. Accordingly, based on the allegations in Neil’s Compla int and Amended Co mplaint, the unconditional ten-year statute of repose commenced ru nning on February 24, 1987, th e date of Love’s alleged act, error, or omission. Section 27-2-206, MCA; Joyce , ¶ 12. ¶12 Neil argues that the District Court erred in holding that the ten-year statute of repose commenced to run on February 24, 19 87, because that date is over five years

before Lucille died on Nove mber 18, 1992. Neil maintains that the statute of repose could not, therefore, begin to run any earlier than the day af ter Lucille’s death, November 19, 1992, and, consequently, would have e xpired on November 18, 2002. Hence, Neil contends that his Complaint filed August 21, 2002, some 89 days prior to November 18, 2002, was timely filed before the expiration of the ten-year statute of repose. ¶13 It is undisputed, however, that Neil allege d at ¶ 22 of his Complaint and in his Amended Complaint that Love was negligent on February 24, 1987—“Sue Ann Love

was negligent when she drafted and had Lucille B. Snyder sign her Last Will and Testament on February 24, 1987.” (Emphasis in original.) ¶14 Notwithstanding, in ¶ 23 of his Complain t and Amended Compla int, Neil alleged that his damages were not caused until this Court’s decision in In Re Estate of Snyder was handed down on May 4, 2000. In support of this approach , Neil requested the District

6Court to apply our decisions in Uhler v. Doak , 268 Mont. 191, 885 P.2d 1297 (1994), and

in Watkins Trust , both of which dealt with questions involving the application of the three-year statute of limitations, not the ten- year statute of repose. Specifically, in the trial court, Neil insisted that the ten-year statute of repose could not have begun on February 24, 1987, because he did not incur damages un til the date this Court determined that he was to receive 100% of the shares of the Stock. In so doing, Neil effectively argues the “accrual rule” tolls the running of th e ten-year statute of repose in the same way that we have applied that rule in cases where the three-ye ar statute of limitations is at

issue. See Uhler, 268 Mont. at 200, 885 P.2d at 1303; Watkins Trust , ¶¶ 52-53. ¶15 Neil’s argument is, however, not well taken. Section 27-2-206, MCA, unambiguously provides that “in no case” ma y the action be commenced after ten years from the date of the act, error, or omission. Similarly, we stated in Joyce that the unconditional statute of repose is not subject to tolling “for any reason because to do so would upset the economic balance st ruck by the legislative body.” Joyce , ¶ 14 (citations omitted). Indeed, as we noted, “the ten-year statute of repose is the ‘absolute time limit beyond which liability no longer exists.’ . . . Not even fraudulent concealment can toll the statute of repose.” Joyce , ¶ 15 (citation omitted). ¶16 Under the plain language of this statut e, neither the “discovery rule” nor the “accrual rule” apply to toll the running of the st atue of repose. Quite simply, the statute of repose is a “substantive grant[] of im munity . . . [and] a time limit beyond which liability no longer exists.” Joyce , ¶ 14 (citation omitted). The statute of repose is “typically an absolute time li mit beyond which liab ility no longer exists and is not tolled

7for any reason because to do so would upset the economi c balance struck by the legislative body.” Joyce , ¶ 14 (citations omitted). Under § 27-2-206, MCA, the statute of repose runs from the “date of the act, error or omission” c onstituting legal malpractice— here alleged in Neil’s Complaint and Amende d Complaint to be February 24, 1987. ¶17 In his Amended Complaint, Neil also alle ges that Love is estopped from raising the statute of repose based on principles of equitable estoppel. Neil maintains that because another attorney empl oyed by JSBW led Neil to believe that Lucille’s Will was drafted such that Neil would inherit 51% of the Stock and Lois, 49%, Love is estopped from now raising the statutory bar of repose. Again, we disagr ee. This Court disposed of a similar argument in Joyce , noting that “principles of equity do not extend the statute of repose . . . .” Joyce , ¶ 23. ¶18 Based on the allegations in Neil’s Complaint and Amende d Complaint—that Love’s negligent act, error or omission occurred on February 24, 1987—and the fact that he filed his Complaint for legal malpractice ag ainst Love on August 21, 2002, some five and one-half years after the running of the ten-year unconditional st atute of repose, we agree with the trial court th at Neil’s Complaint and Amended Complaint fail to state a claim upon which relief can be granted. Accord ingly, we hold that the District Court did not err in granting Responden ts’ Motion to Dismiss under M. R. Civ. P. 12(b)(6). ¶19 Affirmed.

/S/ JAMES C. NELSON

8We Concur:

/S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ JOHN WARNER /S/ JIM RICE

9