NO. 90-551 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

MURLAND W. SEARIGHT and 

VIRGINIA SEARIGHT, 

Petitioners and Appellants, 

BONNIE JEAN HOWELL, wage claimant, 

and the COMMISSIONER OF LABOR AND 

INDUSTRY, State of Montana, 

Respondents and Respondents. 

CLERK OF SUPREME COURT 

STATE OF MONTANA 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Hohorable Thomas Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Murland Searight, Columbia Falls, Montana 

For Respondent: 

Darrell S. Worm; Ogle & Worm; Kalispell, Montana 

Daniel B. McGregor, Department. of Labor & Indust-ry, 

Helena, Montana 

Submitted on Briefs: March 7, 1991 

~ecided: April 22, 1991 

Filed: 
Justice Fred J. Weber delivered the Opinion of the Court. 

This appeal arises from a Department of Labor and Industry 

decision awarding respondent, Bonnie Jean Howell, $1,110.14 in 

wages and the same amount in penalty. The District Court for the 

Eleventh Judicial District, Flathead County, affirmed the Hearing 

Officer's decision. Mr. and Mrs. Searight appeal. We affirm. 

We restate the issues presented as follows: 

1. Whether the Department of Labor and Industry possessed 

jurisdiction to award wages to Ms. Howell. 

2. Whether the Hearing Officer applied the proper standard 

of proof. 

3. Whether the District Court erred in concluding that Ms. 

Howell's wage claim was not barred by the doctrine of res judicata. 

On October 29, 1986, Bonnie Jean Howell (Ms. Howell) filed a 

wage claim against Mr. and Mrs. Searight (Searights) with the 

Department of Labor and Industry (Department). The claim, filed 

solely in Ms. Howell's name, also demanded wages for her two sons. 

The Department split the claim and considered that portion 

pertaining to Ms. Howell at a hearing held on June 4, 1987. The 

Hearing Examiner held in favor of Ms. Howell after making the 

following findings of fact: 

1. Ms. Howell was employed by the Searights from April 

8, 1985 through May 17, 1985 (Stipulated Fact. ) 

2. Ms. Howell has received $250.00 from the Searights 

in the form of a personal check for $150.00 and $100.00 

cash (Stipulated Fact.) 

3. A list of chores was provided by the Searights for 

Ms. Howell to perform at the rate of $5.00 per hour 
(Stipulated Fact.) 

4. The Searights hired Ms. Howell to house-sit their 

home and to perform certain chores while they were on an 

extended trip to China. 

5. Prior to employment, a verbal employment agreement 

was made between Virginia Searight and Ms. Howell. Also 

involved and affected by the agreement were Ms. Howell's 

sons, Carl Howell and Robert Howell. Ms. Howell was to 

receive $20.00 per day or $150.00 per month for housesitting. In addition, and as shown above in Stipulated 

Fact, Ms. Howell was to receive $5.00 per hour for work 

performed relative to a list of chores provided by Ms. 

Searight. Robert Howell was to receive $10.00 per day 

for playing with the Searight's dog and Carl Searight was 

to receive $1.00 per day for grooming the dog and 

cleaning up after the dog. (NOTE: The payment or nonpayment of services performed by Carl Howell and Robert 

Howell is not at issue in this matter; their employment 

agreements are mentioned only to clarify the employment 

agreement of [Ms. Howell].) 

6. Ms. Howell recorded hours worked relating to the 

additional chores to be performed at the rate of $5.00 

per hour. 

7. Ms. Howell claims the following: 

House sitting - 5 weeks plus 5 days 

at $150.00 per week 

115 hours worked at $5.00 per hour 575.00 

Less certain items received by Ms. Howell 72.00 

Less $250.00 received by Ms. Howell 250.00 

Total owed to Ms. Howell $1,110.14 

The Hearing Officer concluded that the Searights owed Ms. 

Howell $2,220.28 in wages and statutory penalty and ordered payment 

accordingly. The Searights petitioned for judicial review from 

the Order of the Hearing Officer. The District Court affirmed the 

Hearing Officer's decision. The Searights filed a motion to vacate 

judgment which the District Court subsequently denied. The 
Searights appeal. 

Whether the Department of Labor and Industry possessed 

jurisdiction to award wages to Ms. Howell. 

The issues raised on appeal in t.his case are questions of law. 

In reviewing questions of law, this Court will merely "determine 

if the agency's interpretation of the law is correct, instead of 

applying the inappropriate abuse of discretion standard". Steer 

Inc. v. DOR (1990), - P.2d -, 47 St.Rep. 2199, 2200. 

The Searights maintain that the Department lacked jurisdiction 

in this case because Ms. Howell was not an employee but an 

independent contractor. They urge that under Foster v. 

Commissioner of Labor and Indus. (1987), 225 Mont. 246, 731 P. 2d 

1313, the Hearing Officer could not award back wages to an 

independent contractor. The Searights also contend that. Ms. 

Howell's labor constituted household or domestic service which is 

excluded from the definition of llempl~ymentlT under Montana's 

unemployment insurance statutes. 

Ms. Howell maintains first that the "independent c~ntractor'~ 

argument was not raised during the proceedings before the 

Department, and is thus, beyond the scope of judicial review under 

2-4-702 (1) (b) , MCA. We agree. Section 2-4-702 (1) (b) , MCA, 

provides: 

A party who proceeds before an agency undor the terms of 

a particular statue shall not be precluded from 

questioning the validity of that statute on judicial 

review, but such party may not raise any other questiog 

not raised before the asencv unlessit is shown to the 

satisfa-ction of th.gee=~]r:t that there--~~~_-good c,ause f-z 
failure to raise the question before the aqencv. 

(Emphasis added). 

The independent contractor issue was addressed by the District 

Court as follows: 

Whether a person is an employee or an independent 

contractor is a factual question. If [the Searights] had 

raised the issue of whether Ms. Howell was an independent 

contractor and had presented evidence on that issue, the 

hearing officer would have been required to make specific 

findings on that question which the Court could then 

review. Here, [the Searights] did not raise the issue 

nor did they present any evidence regarding it. More 

importantly, [the Searights] stipulated that Ms. Howell 

was employed by them. The Court concludes, therefore, 

that [the Searights] cannot now raise the issue of 

whether Ms. Howell was an independent contractor. 

We conclude that 5 2-4-702(1)(b), MCA, is determinative here. We 

affirm the District Court in holding that the Department possessed 

jurisdiction to award wages to Ms. Howell. 

Whether the Hearing Officer applied the proper standard of 

proof. 

In his conclusion regarding the sufficiency of the evidence 

presented before him, the Hearing Officer stated: 

The Searights did not keep any hourly records as to 

the amount of time spent by Ms. Howell working on the 

chores for which she was to be paid $5.00 per hour. Ms. 

Howell proved by reasonable inference that she worked 

hours for which she was not compensated. The Searights 

did not disprove these hours. See Garsjo vs. (sic) 

Department of Labor, 562 P.2d 473 (Mont. 1977). 

The Searights contend that the Hearing Officer applied the 

incorrect standard of proof and that the preponderance of the 

evidence would have been the proper standard to apply. Ms. Howell 

maintains that while the Hearing Officer observed that the 
Searights had not kept hourly time records, Ms. Howell kept records 

and submitted a summary of her records in support of her claim. 

She contends that Garsjo does not create a different standard of 

proof, but rather, endorses the use of circumstantial evidence to 

establish a reasonable approximation of the hours worked in 

constituting substantial evidence to support a claim. See Holbeck 

v. Stevi-West, Inc. (1989), 240 Mont. 121, 125-126, 783 P.2d 391, 

394-395. 

Here, Ms. Howell presented exhibits which detailed the work 

done. She kept track of exactly what she did each day and how much 

time was spent on it. As the Department argues, this evidence, 

coupled with Ms. Howell's testimony and the stipulated fact that 

she was employed from April 8, 1985 through May 17, 1985, clearly 

constituted substantial evidence to support the Hearing Officer's 

conclusion. See Garsjo and Holbeck. We hold that the Hearing 

Officer applied the correct standard of proof. 

I11 

Whether the District Court erred in concluding that Ms. 

Howell's wage claim was not barred by the doctrine of res judicata. 

The Searights contend that the findings and conclusions of the 

separate proceedings involving Ms. Howell's sons are contrary to 

the findings and conclusions in this case, and thus, the doctrine 

of res judicata requires accepting those findings and conclusions 

over those entered here. They argue that the findings of fact 

established that the employments of Ms. Howell, Carl and Robert 

were for the identical time period, at the identical location, 
under one agreement, by the identical family members. 

The doctrine of res judicata applies when (1) the parties or 

their privies are the same; (2) the subject matter of the action 

is the same; (3) the issues related to the subject matter are the 

same; and (4) the capacities of the person are the same in 

reference to the subject matter and the issues between them. PhilCO Feeds v. 1st Nat'l Bank in Havre (1989), 238 Mont. 414, 777 P.2d 

1306. 

The parties are not the same in the two cases. They are only 

of the same family. Here, Ms. Howell is the wage claimant. In the 

previous case, Ms. Howell's sons, Carl and Robert, were the 

claimants. In the case at bar, the issue is whether Ms. Howell is 

owed unpaid wages for work performed pursuant to express orders. 

In the sonst case, the issue was whether they were owed wages at 

all for caring for the Searightst dog. We hold that the District 

Court was correct in ruling that the doctrine of res judicata did 

not bar Ms. Howellts claim. 

Affirmed. 

Chief Justice