## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_______________ Nos. 95-3852/3884

_______________ Clifton Berglee, * * Appellant/Cross-Appellee, * * Appeals from the United States
v. * District Court for the * District of South Dakota. First National Bank, Brookings, * South Dakota, * [PUBLISHED] * Appellee/Cross-Appellant. *

___________ Submitted: April 16, 1998 Filed: June 11, 1998

___________ Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________ PER CURIAM.
Cl iftonBerglee appeals from the district court & s order granting First Nationa l Bank (Bank ) summary judgment on four of his claims for relief against the Ban k because of res judicata. The B ank cross-appeals from the grant of summary judgment for Berglee on his claim for coercive relief. Berglee further appeals from the court & s calculat ionof prejudgment interest awarded on his coercive-relief claim, and both parties appeal the denial of their postjudgment motions. We reverse and remand.-2-

This case ha s a long history and is a somewhat tangled skein. On October 4 , 1989, the Ba

nk paid $252,876.71 out of Berglee & s account--a line of credit supported by a promisso ry note--to a cattle feeder named Woehlhaff without Berglee & s personal authoriz ation. In 1990, Berglee filed an action in Montana state court seeking a de claratory judgment that he did not owe the Bank for these unauthorize d disbursements. The Bank removed the suit to the Montana federal district court and filed a setoff and an unjust enrichment counterclai m; the Bank later dismissed its setoff

cou nterclaim, and following a bench trial the district court--applying Montana law-

- dismissedthe unjust enrichment counterclaim, ruled the disbursements wer e
una uthorized, and awarded Berglee monetary damages in the amount of th e disbursements. The Ninth Circuit, h owever, vacated the judgment; remanded the case for applic ation of South Dakota law; and ordered the district court to enter only a declaratory judgment, because Berglee did not sue for a money judgment, and “did not offer evidence upon which s uch a judgment could properly be based.” See Berglee v. Fi rst Nat & l Bank , No. 92-35242, 1993 WL 61388, at *3 (9th Cir. Mar. 8, 1993 ) (unpublished opinion).

On r emand, Berglee filed an amended complaint alleging new claims fo r monetary relief, which were discovered at trial. In February 1994, the court granted the Bank & s motion for summa ry judgment on these new claims, stating the court could not deviate from the Ninth Circuit & s instructions to enter a declaratory judgment, bu t noting “this opinion does not address Berglee & s right to assert theseclaims in a separate action filed in the appropriate jurisdiction. Rather, this order solely addresses Berglee & s rightto ass ert new claims for monetary relief in what was charged, tried, adjudged , appealed and finally reman ded as a declaratory judgment.” J.A. at 85. In September 1994, t he Montana district court reformulated its prior judgment as a declarator y judgment for Berglee, dismissing the Bank & s unjus t enrichment counterclaim due to the Bank & s wrongful conduct, unclean hands, and lack of good faith; and declaring th e Bank was not entitled to a setoff against the un authorized disbursements to Woehlhaff. In February 1995, the court denied Berglee & s 22 U.S.C. § 2202 motion for coercive-3-

relief in th e amount of the declaratory judgment, relying on the Ninth Circuit & s prio r mandate not to award monetary damages. Neither Berglee nor the Bank appealed.

Also in December 1994, Berglee filed this present action for coercive relief in Montana state court. The case was removed to the Montana federal district court on diversity grounds and then transferred to the United States District Court for th e District of

South Dakota. Berglee asserted four “tort claims,” and sought a coerciv e judgment to enforce the Montana district court & s declaratory judgment. The South Dak otadistrict court granted the Bank summary judgment on Berglee & s tort claims , summarily concluding Berglee was precluded by res judicata from raising c laims he had failed to raise in the prior declaratory judgment litigation. After determining th e Montana district court had not ruled on the merits of Berglee & s coercive-relief claim, the court granted Berglee summary judgment on that claim and awarded Bergle e prejud gment

interest. The court subsequently denied both the Bank and Berglee & s postjudgment motions p ertaining to the calculation of the award of coercive relief and prejudgment interest. Both Berglee and the Bank appeal.
We review a gran t of summary judgment de novo, see Madewell v. Downs , 68 F.3d 1030, 1036 (8th Cir. 1995), and apply South Dakota & s preclusion rules t o det ermine the preclusive effect of the Montana district court & s prior judgment, se e F o llette v. Wal-Mart Stores, Inc. , 41 F.3d 1234, 1237 (8th Cir. 1994), reh & g , 47 F.3d 311 (8th Cir.), cert. denied , 516 U.S. 814 (1995).

We conclude res judicata does not bar Berglee from litigating his present tor t claims, because the prio r dismissal of these claims by the United States District Court for the District of Montana explicitly stated that the court was not addressing Berglee & s right to bring these claims in a separate action. Such a dismissal is not a decision on the merits. See Allan v. Sheesley , 447 N.W.2d 361, 363 (S.D. 1989) (prior actio n
accor ded res judicata effect only if judgment on merits rendered). Furthermore, th e Montana district court, relying on the Ninth Circuit & s mandate, specifically precluded-4-

Bergl ee from bringing these claims--which were discovered at the trial of th e declaratory judgment action --as a part of that declaratory judgment action. Although Berglee was permitted to state his new additional tort claims i n the form of an amended complaint in the declaratory judgment case after the Ninth Circuit’s remand, th e Montana district court made it clear that he was not given leave to amend to expand the issues and strictly enforced the Ninth Circuit’s remand. See Mem. and Order (Feb. 3, 1994), J.A. at 84. Consequently, the tort claims dismissed by the South Dakota district court could not have been brought in the prior declaratory judgment action.
We further conclude that Berglee is not entitled to coercive reli ef. As the district

cou rt recognized, South Dakota law seemingly permits Berglee to pursue further , coercive relief to enforce the original declaratory judgment. See Carver v. Heikkila , 465 N .W.2d 183, 186 (S.D. 1991) (plaintiff who wins declaratory relief may pursu e further coerciv e relief in action for same claim underlying declaratory judgment, even if plaint iff could have requested such relief initially). However, as the Ninth Circui t noted, Berglee has never offered any evidence to support a money judgment . The Bank made the unauthorized disbursements out of an account supported by a promissor y note; by obtaining a declaratory judgment to the ef fect that he did not owe the Bank on the note for the amount of the disbursements, Berglee was made whole. As the Bank correctly argues, if the Bank is required both to erase the portion of the debt owed to it on the note represented by the disbursements of $252,876.71 as decreed by th e Montana court, and also has to pay Berglee the amount of the disburs ements as ordered by the South Dakota court, Berglee would receive a “double recovery.”
Finally, because Berglee is not entitled to a money judgment, the parties & appeals from the denials of their postjudgment motions are dismissed as moot.
Accordingly, we reverse the judgment of the district court awarding coerciv e relief to Berglee, and

dismissing Berglee’s tort claims. We remand the tort claims for further proceedings consistent with this opinion.-5-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.