NO. 90-409 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

LEONARD F. THOMAS, C I 

Plaintiff and Appellant, 

J. CORT HARRINGTON, JR., 

MARK A. ERLER, NANCY J. THOMAS, 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Leonard F. Thomas, Pro Se, Helena, Montana 

For Respondents: 

Ann L. Smoyer, Attorney at Law, Helena, Montana 

John L. Hollow, Attorney at Law, Helena, Montana 

Filed: 

Submitted on Briefs: December 20, 1990 

Decided: January 15, 1991 

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Clerk 
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Justice Diane G. Barz delivered the Opinion of the Court. 

Leonard Thomas, pro se, brought the above-entitled action in 

District Court to recover damages for malicious prosecution and 

abuse of process. On July 26, 1990, the District Court granted 

summary judgment for the defendants and dismissed the complaint. 

Plaintiff appeals and we affirm. 

The underlying facts and circumstances of this case are set 

forth in In re Adoption of R.D.T. (1989), 239 Mont. 33, 778 P.2d 

416. There is also an unpublished, abbreviated opinion of this 

Court relating to this case where the district court was affirmed. 

(In re the Marriage of Erler, No. 90-066, decided July 30, 1990.) 

This Court affirmed the district court in yet another appeal by 

Thomas in Thomas v. Hale (Mont. 1990), P.2d. , 47 St.Rep. 

2261. 

The dispositive issues on appeal are: 

1. Whether the District Court correctly applied the doctrine 

of collateral estoppel to the facts of this case. 

2. Whether Thomast right to due process of law was violated 

when the District Court granted summary judgment and dismissed the 

complaint. 

The District Court found that In re Adoption of R. D. T. , supra, 

decided this case on issues of malice, probable cause, and improper 

purpose, which are essential elements Thomas needed to establish 

in his claim for malicious prosecution and abuse of process. The 

District Court applied the doctrine of collateral estoppel and 

found that Thomas was precluded from relitigating these issues. 
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6. 

Collateral estoppel has three elements: (1) the issue has been 

decided in a prior adjudication and is identical to the one 

presented; (2) a final judgment on the merits was issued; and (3) 

the party against whom the plea is asserted was a party or privy 

to a party of the prior adjudication. Smith v. Schweigert (1990), 

241 Mont. 54, 58, 785 P.2d 195, 197. Thomas does not address in 

his brief the second and third elements but contends that the 

issues are not identical in the present complaint. is contention 

is without merit. The element of malice in the malicious 

prosecution claim and the element of improper purpose in the abuse 

of process claim are essentially the same and were addressed in 

re Adoption of R.D.T, where this Court held: 

The record and surrounding circumstances in this case 

provided the District court with an adequate basis to 

determine if the petition was filed for an improper 

purpose. The District Court found that the petition was 

not filed for an improper purpose, and based on the 

record the District Court's findings are not clearly 

erroneous. 

In re Adoption of R.D.T. at 37, 778 P.2d at 419. 

It is clear that this Court previously decided the issue of 

whether the petition for adoption was filed for an improper 

purpose. It was not. Thomast claim for malicious prosecution and 

abuse of process must fail. Furthermore, Thomas' dissatisfaction 

with the outcome of In re Adoption of R.D.T is no basis to overturn 

the summary judgment in this case, nor does Thomas provide a good 

reason to relieve him from the doctrine of collateral estoppel. 

Thomas also claims his due process rights have been violated. 

Due process requires notice and opportunity to be heard. The 
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issues in this case were raised before the District Court and this 

Court previously. In addition, this is the sixth proceeding 

initiated by Thomas. (See Thomas v. Hale (Mont. 1990) , - P.2d. 

- at I 47 St.Rep. 2261 at 2263.) It is time to limit Thomas1 

opportunity to be heard and put an end to his abuse of the judicial 

system. 

Affirmed. Let remittitur issue forthwith. 

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 

1988 Internal Operating Rules, this decision shall not be cited as 

precedent and shall be published by its filing as a public document 

with the Clerk of this Court and by a report of its result to the 

West Publishing Company. 

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we concur: ,/