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 - !:7q 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiff-appellant, Clayton R. Fiscus, brings this 

matter to this 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 in court. The immediate 

events giving rise to this appeal are as follows. 

On June 10, 1974, pursuant to this Court's decision 

rendered in Fiscus v. Beartooth Electric, supra, the District Court entered summary judgment in favor of Beartooth 

and against Fiscus. 

The case lay dormant on its thus dismissed status until 

February 3, 1978, when Fiscus moved to vacate the judgment 

and dismissal. Briefs were filed for and against the motion 

in the District Court, the Honorable Charles Luedke presiding. The court made no ruling on the motion, 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 Electric, supra. 

The issue at this point 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 that he has never been in court to have such 

made, on the merits, 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 

to bar those attempts by a dissatisfied litigant to reopen a 

matter which has been decided. He argues that all general 

rules, however, have their exceptions, and that under 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 or decided; a thing or matter settled by 

judgment . . . Rule that final judgment or decree on merits by court of competent jurisdiction is conclusive of rights of parties or 

their privies in all later suits on points and 

matters determined in former suit . . . And to 

be applicable, requires identity in thing sued 

for as well as identity of cause of action, of 

persons and parties to action, and of quality 

in persons for or against whom claim is made 

. . . The sum and substance of the whole rule 

is that a matter once judicially decided is 

finally decided . . ." 

In Western Montana Production Credit Ass'n v. Hydroponics, Inc. (1966), 147 Mont. 157, 161, 410 P.2d 937, 939, 

this Court, citing Moore's Federal Practice, said: 

"'The term res judicata is often used to denote 

two things in respect to the effect of a valid, 

final judgment: (1) that such judgment, when 

rendered on the merits, is an absolute bar to 

a subsequent action, between the same parties 

or those in privity with them, upon the same 

claim or demand; and (2) that such a judgment constitutes an estoppel, between the same 

parties or those in privity with them, as to 

matters that were necessarily litigated and 

determined although the claim or demand in the 

subsequent action is different. Under the 

first proposition the judgment operates as a 

bar * * *. Under the second proposition the 

judgment prevents the parties from relitigating 

only those matters that were determined.' 1-B 

Moore F.P. 621-622, S 0.405. 

"The first proposition is properly called res 

judicata while the second is called collateral 

estoppel. " 
As to the concept "law of the case", Black's definition 

includes the following: 

"The decision, judgment, opinion or rulings on 

former appeal or writ of error become 'law of 

the case. ' ... 

"The doctrine expresses practice of courts 

generally to refuse to reopen what has been decided . . . [Ilt expresses the rule that final 

judgment of highest court is final determination 

of parties' rights . . . 

"The doctrine is generally deemed applicable 

whether former determination is right or wrong. 

. . . But some cases hold that doctrine is 

inapplicable where prior decision is unsound, 

. . . or incorrect principles were announced 

or mistake of fact was made on first appeal 11 ... 

"Law of the case" has been explained by the Montana 

Court thus: 

"'The rule is well established and long adhered 

to in this state that where, upon an appeal, 

the Supreme Court, in deciding a case presented 

states in its opinion a principle or rule of law 

necessary to the decision, such pronouncement 

becomes the law of the case, and must be adhered 

to throughout 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 court may 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 is right or wrong, it is 

the law of the case, was binding upon the trial 

court, and is binding upon us.' Anderson v. 

Border, 87 Mont. 4, 285 Pac. 174, 176." Apple 

v. Edwards (1949), 123 Mont. 135, 139-40, 211 

P.2d 138, 140. 

In contravention of the rigid standards articulated 

above, appellant cites the court to Perkins v. Kramer (1948) , 

121 Mont. 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 correcting manifest error in its former judgment. Thus in 

Cluff v. Day, 141 N.Y. 580, 36 N.E. 182, 183, 
the court said: 'There is no iron rule which 

precludes a court from correcting a manifest 

error in its former judgment, or which requires 

it to adhere to an unsound declaration of the 

law. It may, for cogent reasons, reverse or 

qualify a prior decision, even in the same case. 

But the cases in which this will be done are 

exceptional, and the power should be sparingly 

exercised.' 

"When the prior decision is by a divided court, 

as here, . . . the court will the more readily 

depart from it, if erroneous. [Citation omitted.]" 

In Perkins, the defendants contended that the plaintiff 

was precluded from maintaining his action, because of the 

holding in a previous case, which was described as being "an 

appeal from the judgment entered in the trial court after 

reversal" by the state Supreme Court. 121 Mont. at 597-98, 

198 P.2d at 476. 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. 121 Mont. at 598, 198 P.2d at 476. 

Appellant also directs our attention to a recent case 

of this Court, State v. 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 civil proceeding. 

The problem there involved related to double jeopardy, a 

legal concept decidedly applicable to criminal cases only. 

While we cited a number of civil cases in Zimmerman, in our 

brief discussion of the "law of the case", relying on 

Zimmerman is in this case ill-advised. The recitation in 

those cases concerning the application of the exception to 

the general rule is opposite to this case. The exception is 

that the general rule will not be applied in those cases 

where reversal was based on an unrelated matter. Here the 
issue is not unrelated. Thus the exception should not 

apply 

We find that Perkins is controlling in this case and 

that the District Court did not err in its ruling. 

Next appellant argues that his constitutional right of 

access to the courts has been denied him. 1889 Mont. Const., 

Art. 111, 5 6, in effect at the time that he suffered his 

injuries. However, he does not develop this claim with case 

law or other authority and we find no merit to it. 

Recognizing that his position in this appeal is probably 

defective under the Montana law on the "rule of the case" 

appellant argues that under federal decisions interpreting 

Rule 60(b), which is identical to Montana'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 will discuss 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 in our opinion meet the situation here where an appellate court 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 to cure that outrage where the government 

had failed to provide evidence required in a matter of law 

in the denaturalization process. There is no question that 

the plaintiff came under and deserved to come under ~ule 

60 (b) (6) . This is not a case that supports the appellant's 

position here which is whether to change the decisional law 

several years after a final judgment was entered against him 

and whether this constitutes a prerequisite of "any other 

reason justifying release from judgment". 
Appellant next cites Ackermann 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 in Klapprott. We do not find that in the 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 

in those situations that the United States Supreme Court is 

more willing and usually will grant certiorari for the 

purpose of resolving the conflict by announcing a final rule 

to be uniformly applied to all ten circuits. This, of 

course, is one of the distinctions between the federal 

system and our state judicial system in that there there are 

intermediate courts of appeal while here the Supreme Court 

is the court of appeals in the rulings in the District 

Courts. Here we 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 the matter. 

In Tsakonites the appellant had attempted to go to the 

United States Supreme Court in 1967 following an adverse 

result in the District Court for the Fifth Circuit of the 

Court of Appeals. However, the United States Supreme Court 
denied 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 to whether his maritime 

employer had sufficient contacts with America to come 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 we have in this case, but chose 

three years after Tsakonites in the Hellenic Lines case to 

consider the matter and resolve the differences of the 

circuit courts 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, is without any 

directive from other courts, as in the federal system. For 

that reason we think it is distinguishable. 

Appellant next cites the Griffin v. State Board 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 this matter in 

view of the fact while there was a change in the decisional 

law it was made prospectively and operated to preserve the 

ruling in 1955 and the law of 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. Title v. 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. Title whose appeal had been dismissed 

in 1956 moved to reopen his case in 1958, and asked the 

court, as in this case, to invoke Rule 60 at the expense of 

the "law of the case". There the court said: 

"Appellant recognizes that there are reasons 

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 in denaturalization cases relaxing 

the strictness of the ordinary rule. In support 

of this, appellant refers to the language of the 

dissenting Justices in Ackermann v. United States, 

1950, 340 U.S. 193, 202, 71 S.Ct. 209, 95 L.Ed. 

270. We are, of course, bound by the majority 

opinion in Ackermann, just as we are in Zucca. 

Rule 60(b) was not intended to provide relief for 

error on the part of the court or to afford a substitute for appeal. [Citations omitted.] Nor is 

a change in the judicial view of applicable law 

after a final judgment sufficient basis for vacating such judgment entered before announcement 

of the change. [Citations omitted.]" 263 F.2d 

at 31. 

This Ninth Circuit Court of Appeals case clearly recognizes 

that post-judgment change in decisional law affords no 

avenue for reopening judgments. It is a recognition of the 

"law of the case" doctrine which is the law in Montana. 

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 draftee who 

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 

First Circuit Court of Appeals reversed on the "law of the 

case" grounds. In so holding under Rule 60 it noted that it 
would not allow the vacation of a judgment granting the 

injunction stating: 

"TO hold otherwise would destroy the certainty 

which allows controversies to be deemed judicially concluded . . . 

" ' It should be noted that while 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 in another and 

unrelated proceeding.' 7 Moore's Federal Practice 1160.26[3] at 325." 453 F.2d at 650. 

(Emphasis in original.) 

These cases show that there is ample support in the 

federal courts that they feel bound by the "law of the case" 

and that when a decisional law change occurs, subsequent to 

final judgment in a particular case, the "law of the case" 

is that final judgment should not be altered. 

The judgment of the District Court is affirmed and the 

appeal is dismissed. 

We concur: 

8 

Honorable R. D. McPhillips, 

District Judge, sitting in place 

of Mr. Justice Sheehy.