### No. 14301 IN THE SUPREME COURT OF 

### THE STATE OF MONTANA

CLAYTON R. FISCUS, Plaintiff and Appellant,

BEARTOOTH ELECTRIC COOPERATIVE, INC., Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Berger, Anderson, Sinclair and Murphy, Billings,

Montana Richard Anderson argued, Billings, Montana For Respondent: Hutton and Cromley, Billings, Montana Brent Cromley argued, Billings, Montana

Submitted: December 12, 1978 Decided: 

## 2

# '1g71 Filed: 

# FEE- !:7qMr. JusticeJohn Conway Harrison delivered the Opinion of the Court. Plaintiff-appellant, Clayton R. Fiscus, brings this matter tothis Court, asking that, because the holding in Fiscus v. Beartooth Electric (1974), 164 Mont. 319, 522 P.2d 87, has been overruled by Piper v. Lockwood Water Users Ass'n (1978), Mont. 

### - 

## , 573 P.2d 646, 35 St.Rep. 9, 13, that he now be given his day incourt. The immediate events giving 

### rise tothis appeal are as follows. On June 10, 1974, pursuant to this Court's decision rendered inFiscus v. Beartooth Electric, supra, the Dis

### trict Court entered summary judgment infavor of Beartooth and againstFiscus. The case lay dormant on 

### its thus dismissed status until February 3, 1978, when Fiscus moved tovacate the judgment and dismissal. Briefs

### were filed for and against themotion inthe District Court, the Honorable Charles Luedke presiding. The court made no ruling on themotion, and on March 30, 1978, Fiscus' motion became "deemed denied" under Rule 59(d) and (g) 

## ,M.R.Civ.P. Fiscus then filed this appeal. For the fact situation, see Fiscus v. Beartooth Elec

### tric, supra. The issue atthispoint is a narrow procedural one, namely, whether the doctrine of either "law of the case" or



### res judicata bars appellant from pursuing a claim against Beartooth Electric. Appellant argues that he has never had his claim adjudicated and thathe has never been incourt tohave such made, on themerits, the factual and the legal determinations of the case. He argues that he has been procedurally barred by order of this Court dated 1974.Appellant acknowledges that "the law of the case" and



### res judicata are the legal principles generally applicable tobar those attempts by a dissatisfied litigant toreopen a matter which has been decided. He argues that allgeneral rules, however, have their exceptions, and thatunder the circumstances of this case, they should be allowed under the exception of the general rule. Black's Law Dictionary (Rev. 4th Ed., 1968), defines

res judicata thus: "A matter adjudged; a thing judicially acted upon ordecided; a thing ormatter settled by judgment 

# . . 

# . Rule that finaljudgment or decree on merits by court of competent jurisdiction is conclusive of rights of parties or theirprivies inalllater suits on points and matters determined informer suit

# . . . And to be applicable, requires identity inthing sued for as 

### wellas identity of cause of action, of persons and parties to action, and of quality inpersons for or against whom claimismade



# . .

# . The sum and substance of the whole rule is that a matter once judicially decided is finally decided 

# . . ." InWestern Montana Production CreditAss'n v. Hydroponics, Inc. (1966), 147 Mont. 157, 161, 410 P.2d 937, 939, this Court, citingMoore's Federal Practice, said: "'The 

### termres judicata isoften used todenote two things inrespect tothe effect of a valid, finaljudgment: (1)that such judgment, when rendered on the

### merits, is an absolute bar to a subsequent action, between the same parties or those inprivity with them, upon the same claimor demand; and (2) that such a judgment constitutes an estoppel, between the same parties or those inprivitywith them, as to matters that

### were necessarily litigated and determined although the claim or demand inthe subsequent action is different. Under the firstproposition the judgment operates as a bar 

## * * 

## *. Under the second proposition the judgment prevents the parties from relitigating only thosematters that were determined.' 1-B Moore F.P. 621-622, S 0.405. "The firstproposition isproperly called res judicata while the second 

### iscalled collateral estoppel.

### "As to the concept "law of the case", Black's definition includes the following: "The decision, judgment, opinion orrulings on former appeal or

### writof error become 

### 'law of the case.

### ' 

# ... "The doctrine expresses practice of courts generally torefuse toreopen what has been decided 

# . . . [Iltexpresses the rule that final judgment of highest court is finaldetermination of parties' rights

# . . . "The doctrine is generally deemed applicable whether former determination isright orwrong.



# . . .But some 

### cases hold that doctrine is inapplicablewhere prior decision 

### isunsound,



# . . . orincorrectprinciples 

### were announced ormistake of fact

### wasmade on firstappeal 11 

# ... "Law of the case" has been explained by the Montana Court thus: "'The rule is

### well established and long adhered tointhis state thatwhere, upon an appeal, the Supreme Court, indeciding a 

### case presented 

### states inits opinion a principle or rule of law necessary tothe decision, such pronouncement becomes the 

### lawof the case, and must be adhered tothroughout its subsequent progress, both in the trial court and upon subsequent appeal; and this, although upon its subsequent consideration the Supreme Court may be clearly of opinion that the former decision is erroneous. 

## * * 

## * it 

### is a final adjudication from the consequences of which this courtmay not depart, nor the parties relieve themselves (citing

### cases).' Carlson v. Northern Pac.R.Co., 86 Mont. 78, 281 Pac. 913, 914. "'Whether the opinion isright or wrong, it is the law of the case, was binding upon the trial court, and isbinding upon us.' Anderson v. Border, 87 Mont. 4, 285 Pac. 174, 176." Apple v. Edwards (1949), 123Mont. 135, 139-40, 211 P.2d 138, 140. In contravention of the rigid standards articulated above, appellant cites the court toPerkins v. Kramer (1948)

### , 121Mont. 595, 600, 198 P.2d 475, 477, for the following pertinent language: "The doctrine of 

### res judicata, if applicable, does not prevent the court from correctingmanifesterror in

### its former judgment. Thus in Cluff 

### v. Day, 141N.Y. 580, 36 N.E. 182, 183,the court said: 'There is no iron rule which precludes a court from correcting a manifest error inits former judgment, or which requires it to adhere to an unsound declaration of the law. Itmay, for cogent reasons, reverse or qualify a prior decision, even in the 

### same case. But the cases inwhich this willbe done are exceptional, and the power should be sparingly exercised.' "When the prior decision is by a divided court, ashere, 

# . . . the court

### willthemore readily depart from it, if erroneous. [Citation omitted.]" InPerkins, the defendants contended that the plaintiff

was precluded from maintaining his action, because of the holding ina previous case, which was described as being "an appeal from the judgment entered inthe trial court after reversal" by the state Supreme Court. 121Mont. at597-98, 198 P.2d at476. The Court acknowledged that the question presented there was the 

### same as that presented before, but said that it had not precluded plaintiff from relief in the earlier case. 121Mont. at598, 198 P.2d at476. Appellant alsodirects our attention to a recent case of this Court, Statev. Zimmerman (1977), 

### -Mont. I 573 P.2d 174, 34 St.Rep. 1561. We believe that he does so incorrectly because the above case is a criminal matter and the principles applying thereto cannot always be conveyed straight across the board and applied to a civilproceeding. The problem there involved related todouble jeopardy, a legal concept decidedly applicable to criminal cases only. While 

### we cited a number of civil cases in Zimmerman, inour brief discussion of the "law of the case", relying on Zimmerman is inthis case ill-advised. The recitation in those cases concerning the application of the exception to the general rule is opposite tothis case. The exception is that the general rule

### willnot be applied inthose cases where reversal was based on an unrelated 

### matter. Here theissue is not unrelated. Thus the exception should not apply We find thatPerkins iscontrolling in this case and that the DistrictCourt did not 

### err inits ruling. Next appellant argues that his constitutional right of

access tothe courts has been denied him. 1889 Mont. Const., Art. 111, 

### 5 6, ineffect atthe 

### timethat he suffered his injuries. However, he does not develop this claim with 

### case 

### lawor other authority and 

### we find no 

### meritto it. Recognizing that his position inthis appeal isprobably defective under the Montana law on the "rule of the case" appellant argues thatunder federal decisions interpreting Rule 60(b), which isidentical toMontana's Rule 60(b), different solutions of the case could be arrived at. Appellant, in support of his argument, 

### cites 

### a number of federal cases, which we 

### willdiscuss individually in this opinion. Klapprott v. United States (1949), 335 U.S. 601, 69 S.Ct. 384, 93 L.ed. 266, is a naturalization case and does not inour opinionmeet the situationhere where an appellatecourt overruled a later decision. There the court simply held that the plaintiff had been so extraordinarily victimized by the government that the federal rule 60(b)(6) would be invoked tocure that outrage where the government had failed toprovide evidence required in a matter of 

### law inthe denaturalization process. There is no question that the plaintiff came under and deserved tocome under ~ule 60(b)(6)

# . This isnot a case that supports the appellant's position here which iswhether tochange the decisional law several years after a finaljudgment was entered against him and whether this constitutes a prerequisite of "any other

reason justifying release from judgment".Appellant next citesAckermann v. United States (1950), 340 U.S. 193, 71 S.Ct. 209, 95 L.ed. 207. This case like Klapprott stands for the position that only in an extraordinary case should Rule 60(b) be granted. There 

### is considerable authority holding that when a decision is later overruled by a court, that it is not "extraordinary" as contemplated inKlapprott. We do not find that inthe case cited, Ackermann, is authority for appellant's position. The next case cited by appellant in support of his position is Tsakonites v. Transpacific Carriers Corp. (S.D. N.Y. 1970), 322 F.Supp. 722, which comes the closest to appellant's position here. However it is distinguishable in

our opinion from the Montana "law of the case" doctrine because there never would have been a Tsakonites case except for the fact that sometimes various circuits have conflicting holdings as they relate to specific issues of 

### law. It is inthose situations that the United States Supreme Court is

more willing and usually 

### willgrant certiorari for the purpose of resolving the conflictby announcing a final rule tobe uniformly applied toall ten circuits. This, of course, is one of the distinctionsbetween the federal system and our statejudicial system inthat there there are intermediate courts of appeal while here the Supreme Court is the court of appeals inthe rulings in the District Courts. Herewe have no intermediate courts of appeal and when this Court renders a decision on a legal issue, that is and should be the end of thematter. In Tsakonites the appellant had attempted to go to the United States Supreme Court in 1967 following an adverse result inthe District Court for the Fifth Circuit of the Court of Appeals. However, the United States Supreme Courtdenied his application for certiorari and thus did not hear, consider and rule upon the issue which caused him to lose below, the issue there relating towhether his maritime employer had sufficient contacts with America tocome under the Jones Act. It was not until Hellenic Lines Ltd. v. Rhoditis (1970), 398 U.S. 306, 90 S.Ct. 1731, 26 L Ed 2d 252, reh. denied, 400 U.S. 856, that the Supreme Court ruled upon the very issue it had declined to issue in its 

### earlier opinion in Tsakonites. The critical factor distinguishing Tsakonites from the Hellenic Lines case and this appeal is that the United States Supreme Court did not overrule a previous decision of its own. It had not ruled as wehave in this case, but chose three years after Tsakonites inthe Hellenic Lines case to consider the matter and resolve the differences of the circuitcourts on the issue that Tsakonites and Hellenic Lines had before them in 1967. This case, however, as it relates to the Supreme Court that issued it, iswithout any directive from other courts, as in the federal system. For that reason 

### we think it is distinguishable. Appellant next cites the Griffin v. StateBoard of Education (E.D. Va. 1969), 296 F.Supp. 1178, case, which involved the constitutionality of the Virginia tuition grant laws, a denial of the equal protection clause. This decision, we find, supports the respondent in thismatter in view of the factwhile therewas a change in the decisional law it was made prospectively and operated topreserve the ruling in 1955 and the lawof the case being applicable up through 1969.Respondent cites a number of federal cases in support of its position, two of which 

### we think are of import for discussion. Titlev. United States (9th Cir. 1959), 263 F.2d 28, cert. denied 359 U.S. 989, reh. denied, 360 U.S. 914, a case where Mr. Titlewhose appeal had been dismissed in 1956 moved toreopen his case in 1958, and asked the court, as inthis case, to invoke Rule 60 atthe expense of the "law of the case". There the court said: "Appellant recognizes that there arereasons of public policy for assuring the finality of judgments, but suggests that under rule 60(b) (5)

## , Fed.R.Civ.P., 28 U.S.C.A., a special rule should be adopted indenaturalization cases relaxing the strictness of the ordinary rule. In support of this, appellant refers tothe language of the dissenting Justices inAckermann v. United States, 1950, 340 U.S. 193, 202, 71S.Ct. 209, 95 L.Ed. 270. Weare, of course, bound by the majority opinion inAckermann, just aswe are in Zucca. Rule 60(b) was not intended toprovide relief for error on thepart of the court or toafford a substitute for appeal. [Citations omitted.] Nor is a change in the judicial view of applicable law after a finaljudgment sufficientbasis for vacating such judgment entered before announcement of the change. [Citations omitted.]" 263 F.2d at31. This Ninth Circuit Court of Appeals case clearly recognizes thatpost-judgment change indecisional 

### law affords no

avenue for reopening judgments. It is a recognition of the "law of the case" doctrine which is the law inMontana. The second case

### we consider that respondent cited is Lubben v. Selective Service System Local Bd. No. 27, (1st Cir. 1972), 453 F.2d 645. This case involved a drafteewho had secured a permanent injunction against induction. After precedential support for the injunction was removed, the government moved for the dissolution of the injunction. The District Court provided relief for the government, but the FirstCircuit Court of Appeals reversed on the "law of the case" grounds. In soholding under Rule 60 

### it noted that itwould not allow the vacation of a judgment granting the injunction stating: "TOhold otherwise would destroy the certainty which allows controversies 

### to be deemed judicially concluded 

# . .. "

### 'It should be noted thatwhile 60(b)(5) authorized relief from a judgment on the grounds that a prior judgment upon which it is based has been reversed or otherwise vacated, it does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous inanother and unrelated proceeding.' 7 Moore's Federal Practice 1160.26[3] at325." 453 F.2d at650. (Emphasis inoriginal.) These cases show that there is ample support in the federal courts that they feelbound by the "law of the case" and thatwhen a decisional 

### lawchange occurs, subsequent to finaljudgment ina particular case, the "law of the case" is that finaljudgment should not be altered. The judgment of the District Court is affirmed and the appeal is dismissed.

We concur:

8 Honorable R. D. McPhillips, DistrictJudge, sitting inplace of Mr. Justice Sheehy.