12/10/2024
DA 23-0664
Case Number: DA 23-0664
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 293N
WALTER JOEY OVERSTREET,
Plaintiff and Appellant,
v.
ERIC FETTERHOFF, in his official and
individual capacities, JOHN DOES 1-7,
MONTANA HIGHWAY PATROL, and
PARK COUNTY, MONTANA, a political
subdivision, BRUCE BECKER, individually,
and as Park County Attorney, SHANNAN
PICCOLO, individually, and as Deputy Park
County Attorney, STATE OF MONTANA,
Defendants and Appellees.
APPEAL FROM: District Court of the Sixth Judicial District,
In and For the County of Park, Cause No. DV-2021-51
Honorable Brenda R. Gilbert, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jami Rebsom, Jami Rebsom Law Firm, PLLC, Livingston, Montana
For State Appellees:
Liz Franklin, Agency Legal Services Bureau, Helena, Montana
For County Appellees:
Mitchell A. Young, County Litigation Group, Helena, Montana
Submitted on Briefs: September 11, 2024
Decided: December 10, 2024
Filed:
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__________________________________________
Clerk
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Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It 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 Walter Joey Overstreet appeals the Sixth Judicial District Court’s order dismissing
his civil tort claims against a state highway patrol officer, two county prosecutors, and the
State of Montana (Defendants).1 We affirm.
¶3 For the purpose of reviewing the District Court’s order granting a motion to dismiss,
we assume the following facts as true from the allegations in Overstreet’s second amended
complaint. Overstreet and five others were in a car crash in Park County, Montana. One
person died. Montana Highway Patrol Officer Fetterhoff responded to the crash as the
primary investigator on scene and conducted additional investigation throughout the case.
The State charged Overstreet with negligent vehicular homicide and five counts of
negligent vehicular assault. Overstreet claimed he was not driving. The State tried him
two times. Both trials resulted in hung juries. The first trial occurred August 7–9, 2017,
and the second trial occurred March 13–15, 2018.
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Overstreet named various other Defendants in the caption heading. Barbara Watson and Watson
Crash Reconstruction, LLC, are no longer a party to the proceedings. The District Court denied
Overstreet’s motion to amend the complaint a third time to name Kendra Lassiter (the Park County
Attorney who filed the charges a third time) as a defendant.
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¶4 At the second trial, a crash reconstruction expert hired by the prosecution testified
that she found a long, dark brown hair on the driver’s side door. Officer Fetterhoff admitted
he also saw the hair. Overstreet did not have long brown hair at the time of the crash. The
Park County Attorney’s office never provided any evidence of the hair to Overstreet or his
counsel. After the second trial, the State informed Overstreet that it would not try the case
again and requested his permission to destroy the truck. Under the direction of a new
County Attorney, the State then charged Overstreet for a third time. The Park County
District Court held a hearing on Overstreet’s motion to dismiss the criminal case on
March 11, 2020. Fetterhoff testified that he collected the hair, put it into an evidence bag,
but then threw the hair away. It is unclear from the second amended complaint when this
allegedly occurred. Fetterhoff testified that Park County Attorney Bruce Becker told him
to throw the hair away. Becker does not recall this conversation and denies that he ever
told anyone to throw evidence away. Overstreet alleged various other issues with
discovery and evidence production by the prosecution. The District Court dismissed the
criminal case.
¶5 On March 29, 2021, Overstreet then filed this civil suit, seeking damages for the
unsuccessful criminal prosecution. After various motions and amended complaints not
relevant to this appeal, Overstreet’s second amended complaint (filed January 30, 2023)
named Officer Fetterhoff, Park County Attorney Bruce Becker, Deputy Park County
Attorney Shannan Piccolo, Park County, and the Montana Highway Patrol, and stated
claims for negligence, negligent and intentional spoliation of evidence, malicious
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prosecution, negligent and intentional infliction of emotional distress and actual malice.
The District Court allowed Overstreet to name the State of Montana as a defendant. On
motions by the State and County, the District Court dismissed the action. The court
concluded that the State of Montana was the only proper defendant, prosecutorial immunity
precluded many of Overstreet’s claims, and each claim not so precluded failed either to
present a cognizable legal theory or to present sufficient factual allegations. Overstreet
appeals the dismissal of his complaint.
¶6 This Court reviews de novo a district court’s dismissal under M. R. Civ. P. 12(b)(6).
In re Estate of Swanberg, 2020 MT 153, ¶ 6,
400 Mont. 247,
465 P.3d 1165. “The Court
takes all well-pleaded factual assertions as true in the light most favorable to the claimant.”
Swanberg, ¶ 6. The complaint is subject to dismissal if, assuming the facts as true, it “fails
to state a cognizable legal theory for relief or states an otherwise valid legal claim but fails
to state sufficient facts” which, if true, would entitle the claimant to relief. Swanberg, ¶ 6
(citing Anderson v. ReconTrust Co.,
2017 MT 313, ¶ 8,
390 Mont. 12,
407 P.3d 692).
¶7 First, we address the proper defendants in the case. Defendants allege that the State
of Montana is the only properly named defendant, and that all individually named
defendants are immune from liability under § 2-9-305, MCA. First, we agree that because
Overstreet’s complaint against Park County relates to the county attorney’s role of criminal
prosecution, the prosecutors acted on behalf of the State, as defined by § 7-4-2716, MCA,
thus making the State of Montana—not Park County—the proper defendant. Second,
§ 2-9-305(5), MCA, “provides immunity from suit to individually[]named defendants for
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actions performed within the course and scope of the official’s employment.” Griffith v.
Butte Sch. Dist. No. 1, 2010 MT 246, ¶ 60,
358 Mont. 193,
244 P.3d 321; accord Kenyon
v. Stillwater Cty.,
254 Mont. 142, 146,
835 P.2d 742, 745 (1992) (applying § 2-9-305(5),
MCA, to find a county attorney immune from liability when acting within the scope of his
authority) (overruled in part on other grounds by Heiat v. E. Mont. Coll.,
275 Mont. 322,
331,
912 P.2d 787, 793 (1996)). This protection applies “if the governmental entity
acknowledges or is bound by a judicial determination that the conduct” underlying the
claim “arises out of the course and scope of the employee’s employment, unless” an
exception under § 2-9-305(6), MCA, applies. Section 2-9-305(5), MCA.
¶8 Here, the State has acknowledged and asserted that Fetterhoff’s, Becker’s, and
Piccolo’s conduct fell within the course and scope of their employments, thus satisfying
the requirements of § 2-9-305(5), MCA. In the District Court’s order dismissing the
claims, the court also analyzed the underlying conduct and concluded that it fell within the
course and scope of the individuals’ employment.
¶9 Overstreet does not rebut the applicability of § 2-9-305, MCA, or advance any
reason why an exception under § 2-9-305(6), MCA, would apply. Instead, he alleges the
District Court must take as true the complaint’s allegations, which he claims demonstrate
that the individuals engaged in actions outside the scope of their employment. A motion
to dismiss requires the court take as true all factual allegations. It does not apply to legal
conclusions. Cowan v. Cowan,
2004 MT 97, ¶ 14,
321 Mont. 13,
89 P.3d 6 (“Facts must
be viewed in a light most favorable to the plaintiff, however, the court is under no duty to
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take as true legal conclusions or allegations that have no factual basis.”). Whether
§ 2-9-305(5), MCA, applies to shield the individual Defendants from liability is a legal
conclusion that the District Court was not obligated to take as true. Because the State of
Montana has affirmatively acknowledged that the conduct was within the scope of
employment, the provisions of § 2-9-305(5), MCA are satisfied. Gardiner-Park Cnty.
Water & Sewer Dist. v. Knight, 2024 MT 121, ¶ 22,
417 Mont. 1,
549 P.3d 1151 (Under
§ 2-9-305(5), MCA, “if the governmental entity acknowledges the actions in question were
within the course and scope of the employee’s employment, the employee is immune from
suit.”). We affirm the District Court’s order dismissing the individual defendants and
holding the State of Montana as the only proper defendant.
¶10 “Prosecutorial immunity is an established immunity against civil liability.”
Renenger v. State,
2018 MT 228, ¶ 9,
392 Mont. 495,
426 P.3d 559. “To determine whether
a prosecutor, or county attorney, is entitled to immunity, courts look to the nature of the
function performed.” Renenger, ¶ 10 (citations and internal quotations omitted). “Filing
and maintaining criminal charges are among the many duties of a prosecutor and when a
prosecutor acts within the scope of these duties, that prosecutor is absolutely immune from
civil liability, regardless of negligence or lack of probable cause.” Rosenthal v. Cnty. of
Madison,
2007 MT 277, ¶ 29,
339 Mont. 419,
170 P.3d 493. A prosecutor’s immunity
from suit extends to Montana counties and the State of Montana. Renenger, ¶ 9. Certain
actions by prosecutors are not shielded by absolute immunity, however, such as engaging
in administrative duties, Smith v. Butte-Silver Bow Cnty.,
266 Mont. 1, 8,
878 P.2d 870,
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874 (abrogated on other grounds by Citizens Awareness Network v. Mont. Bd. of Env’t
Rev., 2010 MT 10, ¶ 13 n.2,
355 Mont. 60,
227 P.3d 583); giving legal advice to police,
Burns v. Reed,
500 U.S. 478, 496,
111 S. Ct. 1934, 1944-45 (1991); or conducting
investigatory functions, Buckley v. Fitzsimmons,
509 U.S. 259, 273,
113 S. Ct. 2606, 2615
(1993). Despite Overstreet’s attempts to qualify Becker’s and Piccolo’s actions under these
exceptions, all relevant actions he asserts in his second amended complaint relate to the
filing of criminal charges, the alleged failure to diligently review evidence, the failure to
produce allegedly exculpatory evidence, the weighing of the materiality of evidence, and
the decision to re-file charges. These are core prosecutorial functions relating to the filing
and maintaining of criminal charges. Renenger, ¶ 11 (prosecutorial immunity extends to
acts undertaken by the attorney in preparation for initiating judicial proceedings, including
evaluating evidence and determining whether evidence is sufficiently strong to justify a
probable cause finding). The District Court correctly ruled that prosecutorial immunity
bars any claims against the State from Becker’s or Piccolo’s actions.
¶11 Although Overstreet alleges that the State failed to turn over exculpatory evidence
in violation of federal and state law, he raised these issues in his criminal case, and the
District Court ultimately dismissed the case on due process grounds. See State v. Williams,
2018 MT 194, ¶ 18,
392 Mont. 285,
423 P.3d 596 (outlining the State’s obligation to
disclose evidence); see also State v. Colvin,
2016 MT 129, ¶¶ 13, 22,
383 Mont. 474,
372 P.3d 471 (remedies in a criminal case for lost evidence may include, among other
options, dismissal if the defendant proves various factors, including that “suppression of
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the evidence was prejudicial to the defense.”). This does not mean Overstreet may sue the
prosecutors for civil liability without showing that their actions fall outside the scope of
prosecutorial immunity. See Obert v. State, 2024 MT 270, ¶ 51,
419 Mont. 1, ___ P.3d ___
(reasoning that even when prosecutorial immunity applies, “[c]riminal defenses and/or
remedies may be available if a prosecutor or other official’s actions are so egregious that
they violate a claimant’s fundamental rights”).
¶12 Overstreet included Fetterhoff as a defendant on all claims. To the extent that
Fetterhoff is named on claims relating to the decision to pursue and file criminal charges,
he is an improper defendant. The decision to file or pursue charges is exclusively the
prosecutor’s role, not a highway patrol officer’s. See State v. Passmore,
2010 MT 34, ¶ 46,
355 Mont. 187,
225 P.3d 1229 (“Charging decisions are generally within the prosecutor’s
exclusive domain . . . .”). Overstreet cannot sue Fetterhoff for the prosecutor’s decisions
to charge him.
¶13 Overstreet’s additional allegations against Fetterhoff revolve around his role in the
investigation. Prosecutorial immunity “extends to persons involved in prosecutorial or
quasi-prosecutorial functions.” Kelman v. Losleben,
271 Mont. 156, 159,
894 P.2d 955,
958 (1995) (citation omitted). Overstreet claims that Fetterhoff failed to diligently or
sufficiently investigate the matter and alleges other errors Fetterhoff made during the
investigation. Overstreet maintains that Fetterhoff is not shielded by prosecutorial
immunity for these claims. See Buckley,
509 U.S. at 273-74,
113 S. Ct. at 2616 (actions
taken during the “investigative” phase of a case before there is probable cause to arrest are
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not within the scope of prosecutorial immunity); Kelman, 271 Mont. at 160,
894 P.2d at
958 (holding that a DOJ investigator was not entitled to prosecutorial immunity for
administrative actions taken while investigating and reporting on an application for a
gambling operator’s license). Even if immunity did not extend to Fetterhoff’s investigative
actions, however, the District Court held that the claims were barred by the statute of
limitations.
¶14 A three-year statute of limitations applies to negligence claims under § 27-2-204(1),
MCA. The statute of limitations begins to run when the claim accrues, which means all
elements of the claim exist or have occurred. Section 27-2-102(1)(a), (2), MCA.
Overstreet argues that under § 27-2-102(3), MCA, the limitation period does not begin if
the facts are concealed or if the defendant took action to prevent the injured party from
discovering the injury or its cause.
¶15 Overstreet’s complaint demonstrates that he knew of Fetterhoff’s alleged acts
relating to the investigation on or before March 15, 2018 (the end of the second, three-day
trial). Three years from March 15, 2018, is March 15, 2021, and Overstreet did not file his
first complaint until March 29, 2021. The District Court correctly reasoned that
Overstreet’s claims against Fetterhoff as pled in his second amended complaint, to the
extent they deal with Fetterhoff’s handling of the investigation, are barred by the statute of
limitations.
¶16 Overstreet persists, however, that the statute of limitations did not begin to run until
March 11, 2020, when he learned of the alleged destruction of the hair. But Overstreet
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undisputedly learned about the hair during the March 2018 trial. The only alleged action
potentially not barred by the statute of limitations is based on the single statement in his
complaint that Fetterhoff breached a duty to not “thr[o]w evidence into the garbage.” Even
if Overstreet did not know until March 11, 2020, that the hair had been destroyed, he does
not meet his burden to show why its destruction gives rise to a cognizable legal theory to
survive a 12(b)(6) motion. “A cognizable claim for relief generally consists of a recognized
legal right or duty; infringement or breach of that right or duty; resulting injury or harm;
and, upon proof of requisite facts, an available remedy at law or in equity.” Larson v. State,
2019 MT 28, ¶ 19,
394 Mont. 167,
434 P.3d 241. Overstreet focuses his argument on why
the statute of limitations would not apply to Becker’s and Piccolo’s actions. But those
claims, as discussed above, are barred by prosecutorial immunity. He cites no legal
authority to show why the single alleged act in the complaint that potentially is not barred
by the statute of limitations would give rise to a legally cognizable negligence claim against
the investigating officer for damages. The District Court correctly held that any claims
against Fetterhoff not shielded by prosecutorial immunity were barred by the statute of
limitations or fail to state a cognizable legal claim.
¶17 The District Court dismissed the negligent and intentional spoliation claims,
explaining that it already had held in a prior order that Overstreet could not establish these
claims as a matter of law. Overstreet does not argue on appeal why these claims should
not have been dismissed, and we find no error in the District Court’s reasoning. If a party
fails to raise the issue or argue it in their appeal brief, “the issue is deemed waived[,] and
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we need not address it.” Schaubel v. Iverson, 257 Mont. 164, 166,
848 P.2d 489, 490
(1993). Last, the District Court also correctly reasoned that Overstreet’s claim of “actual
malice” was based on a statutory remedy for punitive damages and failed to provide an
independent cause of action or basis for liability.
¶18 In conclusion, the State of Montana is the only proper defendant. Prosecutorial
immunity shields the State from liability for actions by Becker and Piccolo. Any claims
against Fetterhoff not protected by immunity are barred by the statute of limitations or fail
to state a cognizable legal theory. We have determined to decide this case pursuant to
Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum
opinions. This appeal presents no constitutional issues, no issues of first impression, and
does not establish new precedent or modify existing precedent. We affirm the District
Court’s order dismissing the case against all Defendants.
/S/ BETH BAKER
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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