INTHE SUPREME COURT OF THE STATE OF MONTANA

MURLAND W. SEARIGHT and VIRGINIA SEARIGHT,
Plaintiffs and Appellants,-vsMICHAEL CIMINO,

..= . Defendant and Respondent. ,- ;

APPEAL FROK: 

### ~istrict Courtof the Eleventh

### Judicial District;: L-' 

### In and for the Countyof Flathead, TheHonorableLeif Erickson, Judge 

### presiding.'
COUNSEL OF RECORD: 62 ForAppellant:
MurlandW. Searight, ~olumbia Falls, Montana For Respondent:
James C. Bartlett; Hash, 0'~rien & Bartlett, Kalispell, Montana

Filed: Submitted

### on ~riefs:

### June 8, 1989
Decided: 

### July 19, 1989

- -I- / ClerkMr. Justice Fred J. Weber delivered the Opinion of the Court.

The Searights appeal from an order of the

### District Court for the Eleventh Judicial District, Flathead County, denying their motion to vacate judgment and imposing sanctions against the defendant, Mr. Cimino. We affirm the District Court's denial of the motion, and further assess damages against the appellants pursuant to Rule 32, M.R.App.P., for the filing of an appeal without substantial or reasonable grounds. The Searights present several issues for our review but

we find 

### it necessary only toaddress the issueof whether the District Court properly denied appellants' motion to vacate judgment and impose sanctions. Because we answer this question affirmatively, 

### we 

### willnot discuss the remaining issues raisedby appellants. This case has a lengthy history. The Searights initiated a cause of action against Mr. Cimino in 1981, seeking to enforce the terms of a contract fordeed requiring Mr. Cimino to pay half the cost of an airstrip constructed on the Searights' land. On May 

### 14, 1985, judgment was entered in favor of the Searights, and on appeal this Court affirmed. Searight v. Cimino (1986), 718 P.2d 652, 43 St.Rep. 810. Mr. Cimino then sought to enforce the 

### terms of the contract fordeed grantinghim theright touse the airstrip. In July of 1986, he filed a motion to cause appellants to execute an airport easement pursuant toRule 70, M.R.Civ.P., which provides inrelevant part:
If a judgment directs a party toexecute a conveyance of land ortodeliverdeeds orotherdocuments or toperform any other specific act and theparty fails to comply within the time specified, the court may directthe acttobe done atthe cost of the disobedient party by some other personappointed by thecourt and the actwhen sodone has likeeffect as ifdone by theparty.
The Searights resisted defendant's motion, arguing that the previous judgment entered did not contain any reference to an easement which could be enforced by invoking Rule 70, M.R.Civ.P. The Searights acknowledged defendant's right to
use the airstrip as set forth inthe contract for deed, but argued that the granting of an easement was not contemplated eitherby thecontractorby theDistrictCourt's judgment so that defendant's motion should be dismissed. The Searights also requested sanctions against Mr. Cimino under Rule 11, M.R.Civ.P. The DistrictCourt held a hearing on themotion tocause the execution of the easement, and ruled that a written easement needed to be prepared and recorded. Following 

### a later hearing on the Searights' motion for sanctions, the DistrictCourt found that an easement had been prepared and recorded by the Searights' attorney. The court further found that the motion for sanctions "appears to be harassment on Mr. Searight's part." The courtdenied sanctions againstMr. Cimino, and on 

### itsown motion, imposed sanctions against the Searights of $100. The Searights then filed a motion toalteroramend the judgment, arguing thatRule 70, M.R.Civ.P., was inappropriate toenforce a judgment granting an easement which never existed. The District Court denied the motion, reasoning that:

The thrust of Plaintiffs' argument 

### is to relitigate the issueof easement. Sinceplaintiffs have already signed and recorded the easement the point 

### ismoot. On appeal, this Court refused todisturb the actions of the parties in putting the easement on record. Searight v.Cimino (Mont. 1988), 748 P.2d 948, 45 St.Rep. 46. This conclusion was reached based upon the absence of a record of thehearing on Mr. Cimino's motion torequire execution of an easement, and the absence of proof of whether an order was issued or whether the parties 

### were simply told to work it out. This Court also affirmed the levying of sanctions against the Searights, but refused to award damages for a frivolous appeal under Rule 32, M.R.App.P. 748 P.2d at952. On March 10, 1989, afterappointing himself as counsel, Mr. Searight filed a motion to vacate judgment and impose sanctions in the 

### District Court. The motion requested that the court, pursuant to 

### its authority under Rule 12(h)(3)

## , M.R.Civ.P., and Rule 60(b)(4),M.R.Civ.P., vacate allorders, decrees, and judgments entered inthe action arising from Mr. Cimino's motion to cause appellants to execute an airport easement. Mr. Searight contended that the District Court lost subject matter jurisdiction of the case after entry and satisfaction of 

### its final judgment in the first action and had no power to order the granting of an easement. Mr. Searight alsorequested that sanctions be imposed againstMr. Cimino pursuant to Rule 

### 11, M.R.Civ.P. The 

### District Court summarily denied themotion. It

### is from thisdenial thatthe Searights appeal. 

### I Did the District Court properly deny appellants' motion tovacatejudgment and impose sanctions? Appellants contend that the District Court was without subject matter jurisdiction tohear and determine the easement issue because final judgment had been rendered in the prior decision and thatjudgment included no reference toan easement which could have been enforced under Rule 70, M.R.Civ.P.Appellants argue that allorders and judgments rendered

as to the easement issuemust be vacated, citing Crawford v. Pierse (1919), 56 Mont. 371, 375-76, 185 P. 315, 317-18:

It is elementary that when the judgment-roll upon its face shows thatthe courtwas without jurisdiction to render the particular judgment, its pronouncement is in fact no judgment. It cannot be enforced. No right can be derived from it. All proceedings founded upon it are invalid and ineffective for any purpose. 

# . 

# . . An affirmance of such a judgment on appeal cannot make it valid. (citationsomitted).
In response, Mr. Cimino argues that appellants are merely attempting to relitigate the easement issue, and that because they have already had the opportunity to raise a jurisdictional challenge, the doctrine of res judicata applies to preclude further litigation of this matter, citing Wellman v. Wellman (1982), 198Mont. 42, 643 P.2d 573:

Once there has been fullopportunity topresent an issue for judicial decision-in a given proceeding, including those issues that pertain to a court's 

### - - jurisdiction, the determination of the court in thatproceeding must be accorded finalityas toall issues raised or which fairlv could have been raised, else judgments might bgattacked piecemeal and without end. (~m~hasis supplied)

# . 643 P.2d at575, citing Royal Coachman Color Guard v. Marine Trading (Me. 1979), 398 A.2d 382, 384. Contrary to appellants' contentions that Wellman is distinguishable we conclude that 

### it controls. In Wellman, appellants attempted to attack a judgment rendered ten years prior to the appeal, contending that the District Court exceeded 

### its jurisdiction by granting more relief than was sought in the pleadings. 

### In affirming the lower court's dismissal, thisCourt said:Plaintiffs had a full opportunity to litigate the voidness issue in 1971when they firstmoved to

### set aside the default judgment. They failed todo so. The doctrine of res judicata is founded upon the generally recognized public policy that there must be some end tolitigation. The end for the plaintiffsinthiscase occurred more than ten years ago when they failedtoraisethe issue of jurisdiction and theDistrictCourt denied their firstmotion to set aside the defaultjudgment.

In thepresent case, appellants had the same opportunity to raise the voidness issue when Mr. Cimino first filed his motion to cause execution of an airport easement. They did in fact object tothe 

### District Court's ability toenforce an easement under Rule 70, M.R.Civ.P., in theirmotion toalter

or amend the judgment following disposition of the easement issue. They further raised the specific issue of lack of subject matter jurisdiction in their Petition for Rehearing after this Court's opinion in the matter. Because the substance of appellants' challenge to the District Court's actions has remained the same, it is apparent they aremerely attempting to relitigate issues which have already been decided by invoking different labels by which tocontest the proceedings, one of which is subjectmatterjurisdiction. We 

### willnot allow appellants' characterizationof theirclaimto hinder application of the doctrine of 

### res judicata, and the prevention of protracted litigation. Furthermore, the District Court's handling of the easement issue was compelled by the actions of the appellants themselves. While 

### it is not clear from the record whether theDistrictCourt ordered an easement be granted ortold the parties to "work 

### it out," the District Court's findings indicate that appellants were uncooperative and that Mr. Cimino's attorneywas leftwith three alternatives:

### (a) to do nothing and have this matter continue indefinitelywithout resolution; (b) to breach the Code of Professional Responsibility and communicate directly with Mr. Searight; or (c) to seek relief through the Court. The District Court found thatMr. Cimino's attorney chose the only alternative that was reasonably available to him, namely, to file a motion asking the court to compel an easement be drawn and recorded. Even if the relief sought 

### by Mr. Cimino was beyond the scope of the original pleadings in the first proceeding, we hold that a jurisdictional challenge to the court's actions will nevertheless be barred by the doctrine of res judicata under this Court's holding in Wellman. We affirm the District Court's order denying appellants'motion to vacate and impose sanctions. Because we conclude that this appeal is taken without substantial or reasonable grounds and that appellants are merely attempting to relitigate the easement issue, we impose damages in the amount of $500 

### pursuant to Rule 32,

### M.R.App.P. Affirmed.