Belanus v. Potter

• Decision Date: 26 April 2017
• Docket Number: DA 16-0541
• Citation: 394 P.3d 906,387 Mont. 298
• Parties: Duane Ronald BELANUS, Plaintiff and Appellant, v. Raymond POTTER, Leo Gallagher, Melissa Broch, Cathy Murphy, Lewis and Clark County, and State of Montana, Defendants and Appellees.
• Court: Montana Supreme Court

387 Mont. 298

394 P.3d 906

Duane Ronald BELANUS, Plaintiff and Appellant,

v.Raymond POTTER, Leo Gallagher, Melissa Broch, Cathy Murphy, Lewis and Clark County, and State of Montana, Defendants and Appellees.

DA 16-0541

Supreme Court of Montana.

Submitted on Briefs: February 15, 2017

Decided: April 26, 2017

Rehearing Denied May 31, 2017

For Appellant: Duane Ronald Belanus (Self-Represented), Deer Lodge, Montana

For Appellees: Mitchell A. Young, Gregory L. Bonilla, MACo Defense Services, Helena, Montana

Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Duane Ronald Belanus appeals from the First Judicial District Court's grant of Defendants' motion for summary judgment and the court's issuance of a pre-filing order based upon the District Court's declaration that Belanus is a vexatious litigant. We affirm.

ISSUES

¶2 Did the District Court correctly determine that Belanus's case is barred by the statute of limitations?

¶3 Did the District Court correctly determine that Belanus's case is barred by res judicata?

¶4 Did the District Court abuse its discretion by finding Belanus to be a vexatious litigant and issuing a pre-filing order against him?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 This case originated, as did many others, with Belanus's June 2009 conviction of aggravated kidnapping and sexual intercourse without consent of his then-girlfriend, T.C. A principal piece of evidence presented to the jury in that case was a taped telephone conversation that occurred a few months before the assault during which a drunken Belanus threatened T.C. with death and bodily injury. Belanus objected to admission of the audio recording, asserting that its probative value "was substantially outweighed by the danger of unfair prejudice." The District Court overruled the objection, admitted the recording into evidence, and on June 12, 2009, Belanus was found guilty. On August 13, 2009, he was sentenced to life in prison without parole. He appealed his sentence and in State v.Belanus , 2010 MT 204, 357 Mont. 463, 240 P.3d 1021, we affirmed the District Court's admission of the audio recording over Belanus's objection and held that Belanus failed to demonstrate that the District Court abused its discretion.

¶6 Subsequently, as we noted in our recent memorandum opinion, Belanus v. State , 2016 MT 262N, ¶ 3, 386 Mont. 393, No. DA 14-0782 , 2016 WL 6082062, 2016 LEXIS 923, Belanus sued his victim, the county attorney, deputy county attorney, law enforcement investigator, sheriff, multiple sheriff's deputies, probation officer, both of his attorneys, and a judge. He appealed the majority of these cases, without success, to the Montana Supreme Court, the Ninth Circuit Court of Appeals, and the United States Supreme Court.

¶7 One of these subsequent cases was initiated in May 2011 when Belanus filed a complaint in the United States District Court for the District of Montana, Helena Division, against T.C., Potter, Gallagher, Broch, Murphy, and Jeffrey Sherlock. All of these defendants were participants in Belanus's 2009 criminal trial. T.C. was the victim, Potter was the Lewis & Clark County investigator, Gallagher and Broch were the County prosecutors, and Murphy was the Department of Corrections probation/parole officer who conducted the pre-sentencing investigation of Belanus. Sherlock was the presiding judge.

¶8 Belanus claimed that T.C. unlawfully taped their conversation, and the taping and subsequent use of the taped conversation by the defendants violated his Fourth Amendment constitutional rights and the federal wiretap statute, 18 U.S.C. §§ 2510 -2522. The defendants moved to dismiss the complaint for failure to state a claim for which relief could be granted. The federal magistrate analyzed Belanus's claims under both federal and state constitutions and federal and state wiretapping statutes. The magistrate dismissed Belanus's complaint with prejudice, holding that Belanus failed to state a claim under any of the constitutional or statutory provisions raised and analyzed. Following Belanus's objection to the magistrate's ruling, U.S. District Court Judge Donald W. Molloy conducted a de novo review and affirmed the magistrate's order. Belanus v. Chandler, et al , No. CV 11-00026-H-DWM-RKS, pp. 2-3, 2011 WL 3841817(U.S. Dist. Court, Dist. Of Montana, Helena Division) (Aug. 29, 2011).

¶9 On September 13, 2013, Belanus filed his first complaint and demand for jury trial in the case before us in the First Judicial District Court. He sought declaratory relief and nominal, compensatory, and punitive damages for violations of his civil rights and injury to his person sustained through the actions of defendants Potter, Gallagher, Broch and Murphy. While summonses were issued at that time, they were not served and no further activity occurred in the case until November 5, 2015, when Belanus filed a second complaint and demand for jury trial naming Potter, Gallagher, Broch, Murphy, the State of Montana, and Lewis & Clark County.

¶10 As he did in the federal case, Belanus alleged in his complaint that T.C. had illegally recorded their telephone conversation without his knowledge or consent. He claimed the recording was "out-of-context," violated the Montana "privacy in communications" statute at § 45-8-213(1)(c), MCA, and his state and federal constitutional rights.

¶11 Neither Murphy nor the State answered the second complaint and the District Court determined they had not been properly served; consequently, they are not parties in this appeal. The remaining defendants, Potter, Gallagher, Broch and the County (hereinafter County Defendants) moved to dismiss the complaint and sought a designation from the court that Belanus is a vexatious litigant. County Defendants argued that Belanus's complaint should be dismissed on both statute of limitations and res judicata grounds. They also urged the District Court to impose a pre-filing order on Belanus. On July 26, 2016, after converting the County Defendants' motion to dismiss to a motion for summary judgment under M. R. Civ. P. 12(d) and 56, the District Court granted summary judgment to the County Defendants, declared Belanus a vexatious litigant, and imposed a pre-filing order on him.

¶12 Belanus filed a timely appeal.

STANDARD OF REVIEW

¶13 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. Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c). Once the moving party accomplishes this, the burden shifts to the opposing party to prove, by more than mere denial and speculation, that a genuine issue of material fact exists and that the moving party is not entitled to judgment as a matter of law.

Ehrman v. Kaufman , 2010 MT 284, ¶ 10, 358 Mont. 519, 246 P.3d 1048 (internal citations omitted).

¶14 Whether a district court correctly applied the statute of limitations is a question of law we review for correctness. Estate of Woody v. Big Horn Cnty ., 2016 MT 180, ¶ 7, 384 Mont. 185, 376 P.3d 127 (internal citations omitted). We review a district court's application of the doctrine of res judicata for correctness. In re Estate of Benjamin , 2014 MT 241, ¶ 6, 376 Mont. 300, 339 P.3d 1232.

¶15 We review a pre-filing order entered against a vexatious litigant for abuse of discretion. The question under this standard is not whether we would have reached the same decision as the trial judge, but whether the trial judge acted arbitrarily without conscientious judgment or exceeded the bounds of reason. Boushie v. Windsor , 2014 MT 153, ¶ 8, 375 Mont. 301, 328 P.3d 631 (internal citations omitted).

DISCUSSION

¶16 Did the District Court correctly determine that Belanus's case is barred by the statute of limitations ?

¶17 A statute of limitations begins to run "when the claim or cause of action accrues." Section 27-2-102(2), MCA. A claim accrues "when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action." Section 27-2-102(1)(a), MCA.

¶18 The claims Belanus raises are constitutional torts and are subject to the three-year statute of limitations set forth in § 27-2-204(1), MCA. Sunburst Sch. Dist. No. 2 v. Texaco, Inc ., 2007 MT 183, ¶ 63, 338 Mont. 259, 165 P.3d 1079. The recording of the telephone conversation at the center of this case was admitted into evidence during Belanus's criminal trial on June 12, 2009; as such, his tort claim accrued on that day. The three-year statute of limitations expired on June 12, 2012. Belanus filed his original complaint in the case before us in September 2013, more than four years after his cause of action accrued. As noted above, there is no record that the September complaint was served. He filed his second complaint, which triggered defendant responses, in November 2015, more than six years after his claim accrued.

¶19 Belanus argues that based upon his federal action, § 27-2-407, MCA, provided him with an additional year in which to file his state district court claim. Belanus is incorrect.

¶20 Section 27-2-407, MCA, provides, in relevant part:

If an action is commenced within the time limited for the action and ... the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits , the plaintiff ... may commence a new action for the same cause after the expiration of the time limited and within 1 year after a reversal or termination. (Emphasis added.)

¶21 Belanus brought his federal action on these allegations in May 2011; consequently, his federal action was commenced "within the time limited for the action." Subsequently, however, his federal action was terminated on a final judgment upon the merits . A "final judgment upon...