No. 88-419 

IN THE SCJPREME COURT OF THE STATE OF MONTANA 

1989 

GEORGE ORLANDO, as Personal Representative 

of the Estate of Frank A. Donnes, Deceased, 

Plaintiff and Respondent, 

-vsLEE PREWETT and BARBARA PREWETT, Husband and 

Wife, and L.R. BRETZ, 

Defendants and Appellants. 

L.R. BRETZ, 

Plaintiff and Appellant, 

-17sGEORGE ORLANDO, as Personal Representative 

of the Estate of Frank A. Donnes, Deceased, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Treasure 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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: cdsm;fL 

CLERK OF SUPREMECOURT 

STATE OF FulClr iAialA { I. 

. .& ;.-j 
Mr. Justice Wil-liam E. 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 Frank A. Donnes (Donnes Estate), and denying 

Bretz's motion to vacate and set aside a partial summary 

judgment previously awarded to the Donnes Estate. We affirm. 

The following issues are raised on appeal: 

1. Does the doctrine of res judicata render a 

mechanic's lien null and void when the lien was filed against 

real property that was the subject of a prior quiet title 

action against the same parties who filed the lien? 

2. May a district court grant summary iudgment when 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 for probate with 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 Treasure County. 

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 Prewetts one-half of his ranch and the option to purchase 

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 that 
title 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 possession of 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 of both 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 Donnes Ranch was an unenforceable contract to make a will 

and that the Donnes Estate was entitled to a judgment 

quieting title in the ranch. We subsequently issued an order 
directing the Personal Representative to take immediate 

possession of the entire Donnes Estate. 

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's value 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 the mechanic's lien was 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 

days before the hearing, Richard J. Carstensen filed a notice 

of attorney of record for defendant Bretz and a motion for 

additional time to respond to the summary judgment. 

The hearing was held as planned on January 2, 1987, with 

neither Bretz nor Carstensen appearing. At the hearing, the 

Donnes Estate objected to Bretz's motion for additional time 
and 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 a motion to vacate the 

summary judgment. On the same date, the Estate filed a 

motion for summary judgment on the complaint filed by Bretz. 

The District Court consolidated the two actions and held a 

hearing on the motions on March 6, 1987. 

Thereafter, the District Court issued findings of fact, 

conclusions of law, and an order granting the Estate's motion 

for summary judgment and denying Bretz's motion to vacate the 

previous summary judgment. From this order, Bretz appeals. 

The District Court concluded that res judicata barred 

the enforcement of the mechanic'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 itself was never considered by the District 

Court at trial or reviewed by the Supreme Court in Orlando L. 

The doctrine of res judicata is grounded in the idea 

that litigation must 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 of 
whether the particular matter was in fact litigated." Kramer 

v. Deer Lodge Farms Co. (1944), 116 Mont. 152, 156, 151 P.2d 

483, 484. 

In January, 1983, the Donnes Estate instituted a quiet 

title action in which it claimed that the Prewetts and their 

successors had "no right, 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 Donnes property. Any counterclaims that were 

omitted from the action are barred by res iudicata from being 

raised in subsequent litigation. Taggart v. Rutledge 

(D.Mont. 1-987), 657 F.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 judicata precludes them from raising it now. 

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 are not entitled to another chance 

to litigate issues that should have been put before the 

District Court previously merely because a wholly independent 

action for an accounting is still pending. 
Res judicata applies to both final judgments and orders 

that are intended to be final in nature. Lien v. Murphy 

Corp. (1982), 201 Mont. 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 

successors may have against the Frank Donnes Ranch are barred 

by res judicata. Therefore, the mechanic's lien filed after 

Orlando - I is null and void. Bretz, as the assignee of the 

claim, is precluded by res judicata from foreclosing upon 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 to vacate 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 judgment was proper. 

We affirm the District Court. ,