Ereth v. Cascade County

• Decision Date: 02 December 2003
• Docket Number: No. 02-371.,02-371.
• Citation: 318 Mont. 355,81 P.3d 463,2003 MT 328
• Parties: Dianne ERETH, Plaintiff and Appellant, v. CASCADE COUNTY, Estate of Lilian Kravcisin; Cascade Counseling Services, PLLC, successor-in-interest to Interconnections Counseling Group, Inc., or Interconnections Counseling Group, Defendants and Respondents.
• Court: Montana Supreme Court

81 P.3d 463

2003 MT 328

318 Mont. 355

Dianne ERETH, Plaintiff and Appellant, v. CASCADE COUNTY, Estate of Lilian Kravcisin; Cascade Counseling Services, PLLC, successor-in-interest to Interconnections Counseling Group, Inc., or Interconnections Counseling Group, Defendants and Respondents.

No. 02-371.

Supreme Court of Montana.

Argued January 7, 2003.

Submitted January 23, 2003.

Decided December 2, 2003.

Rehearing Denied December 30, 2003.

For Appellant: Donald C. Robinson (argued) and Steven M. Hamilton, Poore, Roth & Robinson, P.C., Butte, Montana.

For Respondents: Nancy P. Cory and Mark D. Meyer (argued), Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Appellant Dianne Ereth (Ereth) appeals the District Court's grant of summary judgment concluding that Ereth's claim for attorney malpractice was barred by the statute of limitations. We reverse and remand for further proceedings.

¶ 2 The sole issue on appeal is: Did the District Court err in concluding that § 27-2-206, MCA, which provides a three-year statute of limitations for legal malpractice claims, barred Ereth's claim?

FACTS

¶ 3 In June 1994, Katie and Andy Schindele reported to the Cascade County Sheriff's Department that Ereth was sexually and/or physically abusing their minor children. Ereth was subsequently arrested and charged with sexual assault and sexual intercourse without consent.

¶ 4 Soon thereafter, Scott Albers, the Chief Public Defender with the Cascade County Public Defender's Office, was appointed as Ereth's defense attorney and represented her during the criminal proceedings prior to her plea agreement. Albers required Ereth to attend weekly group sex offender sessions at InterConnections in order to reduce her sentence to pre-release time as opposed to jail time. Ereth's therapist at InterConnections, Lilian Kravcisin (Kravcisin), theorized that Ereth had repressed memories of being abused by her own mother and father and was also repressing memories of her abuse against the Schindele children. In order to recover Ereth's alleged repressed memories, Kravcisin used hypnosis on Ereth on three or four occasions. According to Kravcisin's record, Ereth while hypnotized denied committing any sexual abuse; nevertheless, Kravcisin advised both Albers and Ereth that Ereth's subconscious was in denial. Even though she maintained her innocence, Ereth attended Kravcisin's group sessions to determine whether she actually had repressed memories of sexually abusing the children.

¶ 5 Based on Kravcisin's opinion, Albers concluded that it would be to Ereth's benefit to enter into a plea agreement in order to avoid a lengthy prison sentence. Eventually, Albers and the Cascade County Attorney's Office negotiated a plea agreement whereby Ereth would enter an Alford plea in exchange for consideration of a lesser sentence. According to Ereth, she based her decision to plea on Albers' advice that she was repressing memories of abusing the children and that if she did not plead, she would be risking a lengthy prison sentence. Ereth entered an Alford plea on April 12, 1996. At the change of plea hearing, Ereth maintained her innocence, but testified that "in talking with the other members of my group [at InterConnections], I have come to believe that there is a possibility I could have done this."

¶ 6 Almost immediately after pleading, Ereth had second thoughts. Less than two weeks after entering the plea, Ereth called her newly-appointed attorney, Eric Olson, and inquired about withdrawing her guilty plea. On July 19, 1996, Ereth filed a Notice of Withdrawal of Plea and Demand to Proceed to Trial. In her supporting memorandum filed on July 26, 1996, Ereth expressly alleged Scott Albers pressured and unduly influenced her to enter the Alford plea. The District Court denied Ereth's Motion to Withdraw Guilty Plea, and ordered a Pre-Sentence Investigation Report be prepared. The Pre-Sentence Investigation contains Ereth's statement that reflects her belief that Scott Albers was inept and negligently coerced her into accepting the Alford plea.

¶ 7 On March 19, 1997, Ereth again petitioned the District Court to reconsider her request to withdraw her plea of guilty. Ereth's request was predicated upon the grounds that Scott Albers was inept and that both he and Lilian Kravcisin exerted undue influence upon Ereth to convince her to plead guilty. Ereth supported the motion with her Affidavit, dated March 19, 1997. Ereth was assigned new counsel, J. Kim Schulke, who was not affiliated with the Cascade County Public Defender's Office. On April 14,1997, Ereth's new counsel filed a Memorandum in Support of Motion to Withdraw Guilty Plea. An entire section of that memorandum was devoted to Ereth's ineffective assistance of counsel argument. Specifically, Ereth alleged that her Alford plea was forced upon her by her former counsel, Scott Albers, and by sex offender therapist, Lilian Kravcisin, in that her free will was overridden by the scientifically inaccurate opinion of her therapist and by her attorney's legal advice based upon that opinion.

¶ 8 The District Court ultimately denied Ereth's request to withdraw her plea. On June 13, 1997, Ereth was sentenced to ten years of incarceration, with six years suspended, $10,000.00 restitution to the victims and 200 hours of community service. On August 11, 1998, the Montana Supreme Court reversed the District Court's decision denying Ereth's motion to withdraw her guilty plea, and remanded the matter for trial. See State v. Ereth, 1998 MT 197, 290 Mont. 294, 964 P.2d 26

.

¶ 9 The matter was scheduled for trial, and a jury was called and impaneled. However, on the eve of trial, the Cascade County Attorney moved to dismiss the charges. The Cascade County Attorney claimed that, due to the five-year lapse in time from the date of the incident to the date of trial, the witnesses were not able to provide sufficient recall of the facts and circumstances surrounding the incidents to prove the case beyond a reasonable doubt.

¶ 10 On August 11, 2000, Ereth instituted the above-entitled action asserting, inter alia, a legal malpractice claim against Scott Albers, the Public Defender who represented her in criminal proceedings. Ereth's complaint alleges that Albers "negligently coerced [Ereth] into accepting an Alford plea of guilty which was later overturned by the Montana Supreme Court upon [Ereth's] request through separate counsel." Cascade County, on behalf of the Cascade Public Defender Office and Scott Albers, moved for summary judgment, asserting Ereth's legal malpractice claim was barred by the three-year statute of limitations. The District Court entered summary judgment in favor of Cascade County, and Ereth filed this timely appeal.

STANDARD OF REVIEW

¶ 11 The standard of review for a grant of summary judgment is de novo. This Court applies the same evaluation as the trial court under Rule 56, M.R.Civ.P. The moving party must establish both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Gonzales v. Walchuk, 2002 MT 262, ¶ 9, 312 Mont. 240, ¶ 9, 59 P.3d 377, ¶ 9. Once the moving party has met its burden, the opposing party must, in order to raise a genuine issue of material fact, present substantial evidence essential to one or more elements of its case rather than mere conclusory or speculative statements. Gonzales, ¶ 9. In addition, our standard of review of a question of law is whether the trial court's legal conclusions are correct. Gonzales, ¶ 9.

DISCUSSION

¶ 12 The determinative issue of this appeal is whether the District Court erred in ruling that Ereth's cause of action against Albers was barred by the statute of limitations for legal malpractice claims, § 27-2-206, MCA.

¶ 13 In its order granting summary judgment, the District Court concluded that the three-year statute of limitations began to run on July 26, 1996, the date on which Ereth filed an affidavit in support of her Motion to Withdraw stating that Albers had exerted undue influence in persuading her to plea. The District Court determined that Ereth was first injured when she relied on Albers' advice to sign the plea agreement on April 12, 1996, and that she had discovered this alleged professional negligent act by July 26, 1996. On that date, Ereth filed a sworn affidavit where she declared that Albers had "exerted undue influence on [her] in order to persuade [her] to plead to these charges." The District Court ruled that starting July 26, 1996, Ereth had a cause of action against Albers for legal malpractice, which could have been filed any time within three years therefrom. Because Ereth did not file her claim until August 11, 2000, the District Court ruled that the statute of limitations barred her claim.

¶ 14 Ereth argues that the statute of limitations did not begin to run until she obtained relief from her conviction on September 21, 1999, the day the Cascade County prosecutor filed a motion to dismiss the case. Ereth claims that she could not have filed against Albers prior to that date because the elements of her cause of action had not accrued. Ereth also maintains that if she had filed before then, her claim would have been dismissed for failure to state a claim. To that end, Ereth asserts that until the charges against her were dropped, she could not have presented a prima facie case that "but for" Albers' negligence she would not have been convicted. Moreover, she posits that her damages, an element of her cause of action, had not accrued until she obtained relief from the charges against her.

¶ 15 The County maintains that Ereth has failed to articulate a valid basis for tolling the three-year statute of limitations and that Ereth's argument on appeal contravenes the express terms of § 27-2-206, MCA, which provides that a legal malpractice claim must be commenced "within 3 years after the...