B. Tackett v. K. Feller

2024 MT 96N, 547 P.3d 664

• Court: Montana Supreme Court
• Decided: May 7, 2024
• Docket: DA 23-0539
• Status: Unpublished

Opinion

05/07/2024

DA 23-0539 Case Number: DA 23-0539

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 96N

BRIAN TACKETT,

Plaintiff and Appellant,

v.

KATRINA FELLER, COCKRELL, GOICOCHEA AND JOHNSON,

Defendants and Appellees.

APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DV-23-80 Honorable Matthew J. Cuffe, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Brian Tackett, Self-Represented, Troy, Montana

For Appellees:

Matthew B. Hayhurst, Tyler M. Stockton, Boone Karlberg P.C., Missoula, Montana

Submitted on Briefs: April 17, 2024

Decided: May 7, 2024

Filed:

__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion, shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Plaintiff Brian Tackett appeals from the Nineteenth Judicial District Court Order

Granting Motion to Dismiss filed by Defendants Katrina Feller and Moore, Cockrell,

Goicochea & Johnson, P.C., (collectively “MCGJ”).1 Tackett contends the District Court

erred by granting the motion without converting it to a motion for summary judgment

pursuant to Mont. R. Civ. P. 12(d), by dismissing his Complaint, and by warning and

advising Tackett that “his continued conduct of filing pro se actions, motions, or requests

with the Court when he has no legal or factual basis will be grounds for finding him a

vexatious litigant.” We affirm.

¶3 This case originated from the deposition of Tackett’s nine-year-old daughter in a

wrongful death medical malpractice action Tackett filed on his own behalf and on behalf

of his minor children against his wife’s treating providers. MCGJ are the attorneys for

some of the defendants in the wrongful death action.

¶4 In addition to being a party to the wrongful death case, Tackett’s daughter was also

a potential witness. In the course of deposing Tackett in the wrongful death case, defense

1 Feller is an attorney with Moore, Cockrell, Goicochea & Johnson, P.C. 2 counsel Sean Goicoechea asked Tackett the following questions regarding the possibility

of Tackett’s daughter testifying at trial:

Question: . . .Brian, do you plan to have [your daughter] . . . testify in this case?

Answer: I wouldn’t want to. I mean, if you make me, I will.

Question: And I won’t make you. I mean, I wouldn’t do that. And, obviously, I’m not the final decision-maker, but here’s the question I have; I don’t want to take their depositions, because I don’t want to put them through that, but I also don’t want to have this case go to trial and then you show up and have [your daughter] . . . hit the stand and say something that we don’t know about. So you don’t have to answer that today, but at some point I’d like to—I’d just like to have a discussion about that.

Answer: I don’t mind if you have a deposition of them, but you’re gonna to have to keep it a lot shorter than this. I mean, it’s got to be—you’re gonna have to be—spearpoint your questions and get them in and out of it. I have no problem with that. I can’t say that they won’t testify—

Question: Okay. Well, we’ll talk about that tomorrow.

Answer: —because I’d sure like a jury to hear from their mouths what they think.

¶5 After Tackett’s deposition, Elizabeth Hausbeck, counsel for one of the

co-defendants, requested Tackett provide available dates for the deposition of several

witnesses, including Tackett’s children. Hausbeck specified that her request to depose

Tackett’s children was contingent on “if you intend or potentially intend to have them

testify at trial.” Tackett responded that his children were “available May 12 in Libby.”

¶6 Hausbeck conducted the initial examination of Tackett’s daughter at her deposition.

Hausbeck’s examination took approximately an hour. After Hausbeck completed her

examination, Feller took over. Feller began by asking Tackett’s daughter if she knew what

3 the case was about and then moved on to asking her about the morning her mother had

passed away. Just a few minutes into Feller’s examination, Tackett began objecting,

instructed his daughter not to answer, and told Feller: “[Y]ou’re traumatizing my child.

I’m not gonna put up with it.” Feller asked one additional question and Tackett ended the

deposition. Feller’s examination of Tackett’s daughter lasted slightly more than three

minutes before Tackett ended it.

¶7 Five days after the deposition, Tackett sued MCGJ. Tackett is the sole plaintiff in

this action. The entire basis for Tackett’s claim is predicated on Feller’s approximately

three-minute examination of Tackett’s daughter. Tackett alleged that Feller’s examination

“foreseeably caused [Tackett] to suffer emotional and physical pain from witnessing his

daughter undergo this distressful questioning.” Tackett alleged that MCGJ intentionally or

negligently inflicted emotional distress upon him. Tackett sought “costs, compensatory

and punitive damages in an amount to be determined by a jury, and any other relief [the

District] Court deems necessary to correct the wrongs done.”

¶8 MCGJ moved to dismiss Tackett’s suit and sought attorney fees and costs on the

grounds that Tackett’s suit was frivolous. The District Court granted MCGJ’s motion to

dismiss, but declined to award fees and costs, concluding that Tackett’s “claims do not

amount to being ‘frivolous.’” But while it declined to award fees, the District Court warned

and advised Tackett that “his continued conduct of filing pro se actions, motions, or

requests with the Court when he has no legal or factual basis will be grounds for finding

him a vexatious litigant.”

4 ¶9 On appeal, Tackett argues that the District Court erred by granting MCGJ’s motion

to dismiss without converting it to a motion for summary judgment. Specifically, Tackett

argues that the District Court erred by considering the deposition transcript and video that

MCGJ submitted in support of their motion to dismiss without converting the motion to a

motion for summary judgment and providing notice to Tackett of its intent to do so

pursuant to M. R. Civ. P. 12(d). Tackett also argues that the District Court erred by

concluding that because his claim was premised on actions taken at a deposition they were

privileged. Finally, Tackett argues that the District Court’s warning that his continued

conduct of filing actions, motions, or requests with the Court that have no legal or factual

basis will be grounds for finding him a vexatious litigant “chill[ed] [Tackett’s] right to

access the courts.”

¶10 An order of dismissal pursuant to M. R. Civ. P. 12(b)(6) presents a question of law

that we review de novo for correctness. Sinclair v. BNSF Ry. Co., 2008 MT 424, ¶ 25, 347

Mont. 395, 200 P.3d 46. We review a district court’s decision whether or not to convert a

motion to dismiss into a motion for summary judgment pursuant to M. R. Civ. P. 12(d) for

an abuse of discretion. Anderson v. Recon Trust Co., N.A., 2017 MT 313, ¶ 7, 390

Mont. 12, 407 P.3d 692.

¶11 Regarding Tackett’s argument that the District Court erred by ruling on MCGJ’s

motion to dismiss without converting it to a motion for summary judgment, MCGJ notes

that Tackett raises this issue for the first time on appeal. MCGJ notes that it submitted the

deposition transcript and video in support of their motion to dismiss and Tackett did not

5 object. MCGJ argues that Tackett waived this issue for consideration on appeal, citing In

re K.J., 2010 MT 41, ¶ 19, 355 Mont. 257, 231 P.3d 75 (“A party waives issues for appeal

that the party failed to raise before the trial court.”). MCGJ argues that even if we were to

consider the merits of Tackett’s argument, there are none since “[a]ll exhibits and materials

referred to in a pleading are incorporated into the pleading.” Firelight Meadows, LLC v.

3 Rivers Tel. Coop., Inc., 2008 MT 202, ¶ 15, 344 Mont. 117, 186 P.3d 869.

¶12 “M. R. Civ. P. 12(d) applies only when matters outside the pleadings are presented

to and not excluded by the court.” Anderson, ¶ 26 (emphasis and internal quotations

omitted). If matters outside the pleadings are submitted, the district court nevertheless

retains the discretion whether or not to convert a motion to dismiss into a motion for

summary judgment. Anderson, ¶ 26. “[W]hen a district court converts a motion to dismiss

to a motion for summary judgment, as contemplated by Rule 12(b), M. R. Civ. P., the court

must provide notice to the parties of its intention to do so. Jones v. Mont. Univ. Sys., 2007

MT 82, ¶ 17, 337 Mont. 1, 155 P.3d 1247 (citation omitted).

¶13 Tackett argues that the District Court erred by ruling on MCGJ’s motion to dismiss

without converting it to a motion for summary judgment and providing him notice. But

the only materials that were submitted in support of MCGJ’s motion to dismiss were the

transcript and video of the deposition that formed the entire basis of Tackett’s emotional

distress claim and to which he expressly referenced in his Complaint. “The purpose of

notice is to allow the parties a reasonable opportunity to present all material made pertinent

to the motion and avoid surprise.” Jones, ¶ 17 (internal quotation and citation omitted).

6 Since Tackett’s emotional distress claim was entirely predicated on MCGJ’s conduct at the

deposition, the deposition transcript and video effectively constituted an encapsulation of

all material pertinent to the motion to dismiss the claim. Tackett can hardly claim surprise

at the inclusion of a transcript and video of a deposition at which he was present and upon

which he relied as the basis for his claim. But even assuming, for the sake of argument,

that conversion of the motion to dismiss to a motion for summary judgment was required,

Tackett had the opportunity to move the District Court to convert the motion and to submit

any materials in opposition to the motion—he did not.

¶14 In Anderson, we held that the district court did not abuse its discretion by failing to

convert a motion to dismiss into a motion for summary judgment sua sponte when the

plaintiff did not move for conversion. Anderson, ¶ 26. The District Court did not abuse

its discretion in this case by ruling on MCGJ’s motion to dismiss without converting it to

a motion for summary judgment.

¶15 The District Court dismissed Tackett’s claim because as counsel for an opposing

party, MCGJ did not owe Tackett a legal duty in conducting the deposition. An attorney

does not owe a legal duty to third persons to exercise care while representing their client.

Rhode v. Adams, 1998 MT 73, ¶¶ 12, 21, 288 Mont. 278, 957 P.2d 1124. The District

Court noted that as an attorney for some of the defendants in the wrongful death action,

MCGJ had a legal duty to represent and defend the interests of their clients. The District

Court correctly noted that depositions of witnesses who may be called at trial, including

children, are permitted under Montana law and that Tackett stated that his daughter might

7 be testifying at trial in the Wrongful Death Action. The District Court held: “Accordingly,

[MCGJ’s] deposition questioning was legally warranted. [MCGJ] did not owe Mr. Tackett

a legal duty to protect his sensibilities while defending a claim Mr. Tackett brought, while

deposing a party and a witness.”

¶16 Having reviewed the deposition, the District Court observed that “Attorney Feller’s

demeanor and questions asked during the deposition were allowed, appropriate, and

warranted considering the circumstances. There is no valid claim arising from the

conduct.” The District Court held: “Attorney Feller and MCGJ represent parties adverse

to Mr. Tackett in the Wrongful Death Action. They are not legally mandated to protect

Mr. Tackett's emotional well-being while defending the claims he alleged.” We agree.

¶17 Tackett filed a medical malpractice lawsuit regarding his wife’s death. Tackett’s

daughter was both a named plaintiff in the lawsuit and a witness to her mother’s death.

MCGJ advised Tackett that they did not intend to depose his daughter unless he intended

to call her as a witness, which he indicated he might. Under the circumstances, it cannot

be disputed that it was entirely appropriate for MCGJ to depose Tackett’s daughter. In that

regard, “an attorney must be able to vigorously advocate his or her client's interests in

litigation without being compromised by obligations to non-clients.” Rhode, ¶ 21. Tackett

concedes that MCGJ “had the right to appropriately question [his daughter].” Tackett

contends, though, that MCGJ “had no legal right . . . to improperly and oppressively

question her.” The problem with Tackett’s assertion is that just because he characterizes

MCGJ’s examination of his daughter as improper and oppressive, it does not make it so.

8 ¶18 A complaint should not be dismissed for failure to state a claim unless it appears

that the plaintiff can prove no set of facts in support of the claim which would entitle the

plaintiff to relief. In considering the motion, the complaint is construed in the light most

favorable to the plaintiff, and all allegations of fact contained therein are taken as true.

Finstad v. W.R. Grace & Co.-Conn., 2000 MT 228, ¶ 24, 301 Mont. 240, 8 P.3d 778. This

is a unique case in that the entire basis for Tackett’s complaint is on video and there is a

written transcript which the District Court properly considered. While there is no dispute

as to the factual allegation that Tackett’s daughter was examined at deposition, even

construing his complaint in a light most favorable to him, there is no support for a claim

that the few questions Feller was able to ask in the few minutes she was allowed to ask

them were anything but properly within the realm of her duty to advocate for her client.

The District Court did not err by granting MCGJ’s motion to dismiss.

¶19 Finally, Tackett argues that the District Court “chill[ed] [his] right to access the

courts” by warning him that his continued conduct of filing actions, motions, or requests

with the Court that have no legal or factual basis will be grounds for finding him a vexatious

litigant. This contention is without merit. Tackett cites Ringgold-Lockhart v. Cnty. of

Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014) for the proposition that “[r]estricting

access to the courts is . . . a serious matter. The . . . right of access to the courts is a

fundamental right protected by the Constitution.” But the District Court did not restrict

Tackett’s access to the courts—it merely warned him that continued conduct of filing

actions, motions, or requests with the Court that have no legal or factual basis will be

9 grounds for finding him a vexatious litigant. If and when that occurs, Tackett can bring

that issue up on appeal. Until then, as MCGJ correctly notes, there is no issue for this Court

to address. “The central concern of ripeness is whether an injury that has not yet happened

is sufficiently likely to happen or, instead, is too contingent or remote to support present

adjudication.” Advocates for Sch. Tr. Lands v. State, 2022 MT 46, ¶ 19, 408 Mont. 39, 505

P.3d 825 (internal quotation omitted).

¶20 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. The District Court’s Order dismissing Tackett’s Complaint

is affirmed.

¶21 Affirmed.

/S/ JAMES JEREMIAH SHEA

We Concur:

/S/ INGRID GUSTAFSON /S/ LAURIE McKINNON /S/ DIRK M. SANDEFUR /S/ JIM RICE