No. 88-419

IN THE SCJPREME COURT OF THE STATE OF MONTANA 1989

GEORGE ORLANDO,as PersonalRepresentative of the Estate ofFrankA. Donnes, Deceased, Plaintiffand Respondent,-vsLEE PREWETT and BARBARA PREWETT,Husband and Wife, and L.R. BRETZ, Defendants and Appellants.

L.R. BRETZ, Plaintiff andAppellant,-17sGEORGE ORLANDO, as PersonalRepresentative of the Estate ofFrankA. Donnes,Deceased, Defendant and Respondent.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Treasure TheHonorable Alfred B. Coate,Judgepresiding.

COUNSEL OF RECORD:
ForAppellant:
R. J. Carstensen,Billings, Montana
For Respondent:
R. Russell Plath;Kelly & Halverson,P.C., Sheehy, Finn and Plath,Billings, Montana 

# FILED Submitted on Briefs: Jan. 12, 1989 Decided: March 30, 1989
Filed: 

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CLERKOFSUPREMECOURT STATEOF FulClriAialA { I.

. .& ;.-jMr. Justice Wil-liamE. Hunt, Sr., delivered the Opinion of the Court.

L. R. Rretz appeals from an order of the District Court of the Sixteenth Judicial District, Treasure County,grantinq summary judgment to George Orlando, Personal Representative of the estate of FrankA. Donnes (DonnesEstate), and denying Bretz's motion to vacate and set aside a partial summary judgmentpreviously awarded to the DonnesEstate. We affirm. The following issuesare raised on appeal: 1. Does the doctrine of res judicata render a mechanic's liennull and void when the lienwas filed against real property that was the subject of a prior quiet title action against the samepartieswho filed the lien? 2. May a district court grant summary iudgmentwhen the non-moving partv has failed to file a brief? Frank A. Donnes was murdered in the fall of 1982. On November 16, 1982, George Orlando filed the Last Will and Testament of the deceased and a petition forprobatewith the Treasure County Clerk of Court. The will named Donnes' two sisters, Helen Carbone and Mabel Orlando, as the sole devisees of the entire estate, which included a 5,000-acre ranch in TreasureCounty. On Januarv 8, 1983, Donnes' niece and her husband, Barbara and Lee Prewett, filed two creditors' claims against the Estate. The first claim alleged that the Prewetts had entered into an oral agreement with Donnes, in which Donnes agreed to create a will or establish a grantor trust giving the Prewettsone-half of his ranch and the option topurchase the other half from his estate. The second creditors' claim alleged that Donnes had orally agreed to sell livestock and other personal property to the Prewetts for $12,000 but thattitle to the property had not passed because the Prewetts owed a remaining balance of $10,515. On January 19, 1983, the District Court formally admitted the will into probate and appointed George Orlando

as Personal Representative of the Donnes Estate. The Personal Representative filed notice of disallowance of the creditors' claims. He then filed a complaint against the Prewetts, seeking a judgment that the Donnes Estate was entitled to quiet and peaceful possessionof the Frank Donnes Ranch and the personal property upon the ranch and a permanent injunction preventing the Prewetts from asserting any adverse claim against the Estate's title and ownership of Donnes' real and personal property. In response, the Prewetts counterclaimed, requesting specific performance of the two oral contracts alleged in the creditors' claims. Later, the Personal Representative amended the complaint to include an additional cause of action against the Prewetts for an accounting. Prior to trial, the District Court bifurcated the causes of action. On November 7, 1983, a bench trial proceeded only upon the Estate's quiet title actions and the Prewetts' counterclaims for specific performance of the oral agreements. On June 4, 1984, the District Court ruled that the Donnes Estate should take nothing under the quiet title actions, and that the Prewetts were entitled to specific performance ofboth oral agreements. The Estate appealed the decision to this Court. In Orlando v. Prewett (1985),218 Mont. 5, 705 P.2d 593 (Orlando

### - I),we reversed the District Court, holding that the oral agreement for the transfer of the DonnesRanchwas an unenforceable contract tomake a will and that the Donnes Estate was entitled to a judgment quieting title in the ranch. We subsequently issued an orderdirecting the Personal Representative to take immediate possession of the entire DonnesEstate. On January 6, 1986, after we issued Orlando 

### - I, the Prewetts filed a mechanic's lien against the Donnes Ranch, claiming that they had provided labor from 1981 through 1984 that enhanced the ranch'svalue by $376,474.22. On February 6, 1986, the Prewetts assigned their rights under the mechanic's lien to L. R. Bretz for $1,000. On July 15, 1986, Bretz filed a complaint against the Donnes Estate, seeking foreclosure of the mechanic's lien. The Estate's answer to the complaint alleged several affirmative defenses, including res judicata. On July 16, 1986, the District Court granted the Personal Representative's motion to amend the complaint filed against the Prewetts in January, 1983, adding 

### L. R. Bretz as a named defendant and seeking a judgment that the mechanic's lien was null and void. The Personal Representative also sought an order quieting title in the ranch to the Donnes Estate and enjoining the Prewetts and Bretz from asserting any adverse claim against the real and personal property in the estate. On November 28, 1986, the Donnes Estate filed a motion for summary judgment on the mechanic's lien, asking for a judgment that themechanic's lienwas null and void. At the

same time, the Estate filed a brief in support of summary judgment and a notice of hearing on the motion,which set a hearing date of January 2, 1987. On December 31, 1986, two daysbefore thehearing,Richard J. Carstensen filed a notice of attorney of record for defendant Bretz and a motion for additionaltime to respond to the summary judgment. Thehearingwasheld asplanned on January 2, 1987, with neither Bretz nor Carstensen appearing. At the hearing, the Donnes Estate objected to Bretz's motion for additional timeand requested that summary judgment be entered. On Januarv 8, 1987, the District Court granted the Estate's motion for summary judgment,denied Bretz's motion for additional time, and issued judgment quieting title. On January 27, 1987,Bretz filed amotion tovacate the summary judgment. On the same date, the Estate filed a motion for summary judgmenton the complaint filed by Bretz. The District Court consolidated the two actions and held a hearing on themotions onMarch 6,1987. Thereafter, the District Court issued findings of fact, conclusions of law,and an order granting the Estate's motion for summary judgmentand denying Bretz'smotion tovacate the previous summary judgment. From this order, Bretz appeals. The District Court concluded that res judicata barred the enforcement of themechanic's lien. Bretz contests this conclusion, arguing that the previous litigation between the Prewetts and the Donnes Estate as well as our subsequent decision in Orlando 

### -- I adjudicated only the question of enforceability of the oral agreements entered into between Frank Donnes and the Prewetts. Bretz contends that the mechanic's lien cannot possibly be barred by res judicata because the lien itselfwas never considered by the District Court at trial or reviewedby the SupremeCourt inOrlando

# L. The doctrine of res judicata is grounded in the idea that litigationmust at some point come to an end. Thus, a matter fully adjudicated is said to be res judicata and cannot be relitigated by a party who has already had the opportunity to present and plead his case. First Bank 

### v. District Court (Mont. 1987), 737 P.2d 1132, 1134, 44 St.Rep. 861, 864. A judgment is "binding and conclusive between all the parties to the suit and their privies and successors in interest,as to all matters adjudicated therein and as to all issues which could have been properly raised irrespective ofwhether theparticularmatterwas in fact litigated." Kramer

v. Deer Lodge Farms Co. (1944),116Mont. 152, 156, 151 P.2d 483, 484. In January, 1983, the Donnes Estate instituted a quiet title action inwhich it claimed that the Prewetts and their

successorshad "noright,title,estate, lien or interest" in the real or personal property of Frank Donnes. The Estate's pleadings put directly in issue all adverse claims the Prewetts had against the Donnes Ranch. The Prewetts were therefore required by Rule 13(a), M.R.Civ.P., governing compulsory counterclaims, to assert all claims they may have had against the Donnesproperty. Any counterclaims that were omitted from the action arebarred by res iudicata frombeing raised in subsequent litigation. Taggart 

### v. Rutledge

(D.Mont. 1-987),657F.Supp. 1420, 1431. The mechanic's lien in question is a claim against the Donnes Ranch and is therefore precisely the type of counterclaim the Prewetts were required to raise in the previous adjudication. 

### By failing to pursue the mechanic

### 's lien prior to the conclusion of the quiet title action, the Prewetts forever lost the opportunity to litigate its merits;

res judicataprecludes them fromraising itnow. Bretz argues that because the District Court bifurcated the issues and proceeded to trial only on the quiet title actions of the Estate and the specific performance claims of the Prewetts, the action remains open to further litigation on the mechanic's lien.. This is not so. The Prewetts had the opportunity to litigate all claims against the Donnes Ranch in the trial held on the quiet title and specific performance actions. They arenot entitled toanother chance to litigate issues that should have been put before the DistrictCourtpreviously merely because awholly independent action for an accounting is stillpending.Res judicata applies to both final judgments and orders that are intended to be final in nature. Lien v. Murphy Corp. (1982),201Mont. 488, 493, 565 P.2d 804, 806. Because
our opinion in Orlando 

### - I finally decided the quiet title action, any additional claims the Prewetts or their

successorsmay have against the Frank DonnesRanch arebarred by res judicata. Therefore,the mechanic's lien filed after Orlando 

### - I is null and void. Bretz, as the assignee of the claim,isprecluded by res judicata from foreclosingupon it. Next, Bretz argues that a summary judgment cannot be granted for a party's failure to file a brief. We need not consider this question, however, as any error the District Court may have committed in granting the Donnes Estate's motion for summary judgment on January 8, 1987, for the

reason that Bretz had failed to file a brief was rectified when, on March 6, 1987, the court considered both Bretz's motion tovacate the summary judgment and the Estate's motion for summary judgment on Rretz's complaint. The March 6, 1987, hearing gave Bretz an opportunity to present any genuine issues of material fact. He failed to do so. Summary judgmentwasproper. We affirm the District Court. 

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