NO. 94-411

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE ex rel. HARLEM IRRIGATION DISTRICT,

MATT MCCANN, RALPH SNIDER and KNUTE KULBECK,

Relators,

v.

MONTANA SEVENTEENTH JUDICIAL DISTRICT

COURT, BLAINE COUNTY, and THE HONORABLE

JOHN McKEON, Presiding Judge, f$ ';‘{ & L* is9 5

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Respondents,

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and

CLINTON LOVE and ROSE MARY LOVE,

Plaintiffs and Respondents.

ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Relators:

Robert D. Morrison, Morrison Law Firm,

Whitefish, Montana

For Respondents:

David L. Irving, Attorney at Law,

Glasgow, Montana

Filed:

Submitted on Briefs: February 16, 1995

Decided: May 4, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

The plaintiffs, Clinton Love and Rose Mary Love, filed an

amended complaint in the District Court for the Seventeenth

Judicial District in Blaine County in which they alleged several

claims against the defendants, the Harlem Irrigation District and

its commissioners, based on the District's refusal to provide water

to the Loves. Pursuant to Rule 12(c), M.R.Civ.P., the District

moved for judgment on the pleadings, based in part on the doctrine

of res judicata . The District Court denied the motion and the District

petitioned this Court to reverse the District Court by the exercise

of supervisory control. We accepted original jurisdiction pursuant

to Rule 17(a), M.R.App.P., and in the exercise of supervisory

control, reverse the order of the District Court.

The Irrigation District raises the following dispositive

issue: Does the doctrine of resjudicata preclude litigation of the

issues raised in the Loves' amended complaint?

FACTUAL BACKGROUND

The Harlem Irrigation District is a public corporation,

comprised of elected commissioners, which is responsible for

managing a water irrigation system in Blaine County. The Loves

owned property located in the Irrigation District. Based on its

contention that they failed to pay their share of the taxes

required for the operation of the Irrigation District, the

commissioners have terminated the Loves' irrigation water on

several occasions since 1983.

2
In August 1983, the Loves filed a complaint, given Blaine

County Cause No. 8195, in which they alleged that the District and

two of its commissioners were liable for lost crops and punitive

damages as a result of the termination of the Loves' water supply.

That complaint was consolidated with another complaint, No. 8342,

in which the same allegations were made against a third

commissioner. The Loves alleged that the defendants acted

"willfully, maliciously and were guilty of wanton disregard of the

rights of the Plaintiffs and in violation of Montana Law and the

bylaws of the District . . . .'I The Irrigation District moved for

summary judgment, and on November 9, 1989, the District Court

granted its motion based on sovereign immunity. This Court

affirmed that judgment based on its interpretation of former S 2-9-

211, MCA (1989). Lovev. HurlemIrrigutionDist (1990), 245 Mont. 443, 802

P.2d 611 (LoveI)

After our decision in LoveI, the Loves filed another complaint

on May 20, 1991, as Blaine County Cause No. DV 91-31, and an

amended complaint on April 7, 1992. In Count One of their amended

complaint, the Loves alleged that the District's denial of water in

1983, 1988, and 1989 violated contractual and statutory duties owed

to the Loves.

In Count Two, they alleged that the Irrigation District's

actions were "arbitrary, careless and negligent," as well as

"willful and malicious acts of negligence." Count Two claimed that

3
the District's conduct violated the implied covenant of good faith

and fair dealing.

In Count Three, they alleged that the District's actions

constituted actual or constructive fraud, and in Count Four they

claimed that the District's acts deprived them of property without

due process, in violation of 42 U.S.C. 5 1983.

As in their first complaint, the Loves claimed damages for

crop loss and the right to recover punitive damages. In addition,

they alleged damage to their property.

The District moved for judgment on the pleadings pursuant to

Rule 12(c), M.R.Civ.P., based in part on the doctrine of resjudicata.

The District Court denied the Irrigation District's motion.

In response to the Irrigation District's petition for

supervisory control, we accepted original jurisdiction pursuant to

Rule 17(a), M.R.App.P, in order to prevent extended and needless

litigation.

DISCUSSION

Does the doctrine of resjudicata preclude litigation of the

issues raised in the Loves' amended complaint?

The District Court held that based on Boucher v. Dramstad

(D. Mont. 1981), 522 F. Supp. 604, the doctrine of resjudicata bars

a subsequent cause of action if the following three criteria are

satisfied: (1) if "the prior judgment was rendered by a court of

competent jurisdiction;" (2) if "the decision was a final judgment

on the merits;" and (3) if "the same cause of action and the same

4
parties or their privies were involved in both cases." See Boucher,

522 F. Supp. at 606.

The court reasoned that in LoveI, summary judgment was granted

based on immunity provisions of former 5 2-9-111, MCA (1989), and

as a result, the court held that there had been no prior judgment

on the merits. The court stated that even if the present claims

were the same as those previously litigated, the second requirement

in Boucher was not satisfied. The court added (also in reliance on

Boucher) that res judicata should not apply because it would be

manifestly unfair to the Loves. See Boucher, 592 F. Supp. at 607.

The Irrigation District argues that this Court does not follow

the three-part test from Boucher and that this court's resjudicata

analysis does not involve a case-by-case consideration of

fundamental fairness. While our discussions of the doctrine of ES

iudicata do (in a different form) consider all of the elements

discussed in Boucher, we have not yet had occasion to reject the

application of that doctrine based on considerations of fairness.

We have held:

The doctrine of resjudicata states that a final judgment on

the merits by a court of competent jurisdiction is

conclusive as to causes of action or issues thereby

litigated, as to the parties and their privies, in all

other actions in the same or any other judicial tribunal

of concurrent jurisdiction.

Meaghercounty Water Disl. v. Walter (1976), 169 Mont. 358, 361, 547 P.2d

850, 852 (citing 46 Am. Jur. 2d Judgments § 394).

5
In addition to the elements inferred from the previous

definition, we have held that the doctrine includes the following

four elements: (1) the subject matter of each action must be the

same; (2) the parties or their privies of each action must be the

same; (3) the issues must be the same and relate to the same

subject matter; and (4) the capacities of the persons must be the

same in reference to the subject matter and to the issues between

them. Whirryv.&w?nson (1992), 254 Mont. 248, 250-51, 836 P.2d 1227,

1228; Fillerv. RichlandCounty (1991), 247 Mont. 285, 291, 806 P.2d 537,

541; Wellman v. Wellman (1983), 205 Mont. 504, 507, 668 P.2d 1060,

1061.

Therefore, we do not agree that our own criteria for the

application of the doctrine would not require a final judgment on

the merits. However, neither do we agree that because the Loves'

first suit was dismissed by summary judgment, based on § Z-9-111,

MCA (1989), there was no prior judgment on the merits.

In Smithv.Schweigert (1990), 241 Mont. 54, 59, 785 P.2d 195, 198,

we held that summary judgment is a decision on the merits because

it is a conclusive determination of a legal issue presented by the

facts of a case. In Millsv.LincolnCounty (1993), 262 Mont. 283, 285,

864 P.2d 1265, 1267, we reaffirmed this holding, even though the

summary judgment in the prior decision had been based on immunity

pursuant to the pre-1991 amendment of § 2-9-111, MCA. Based on our

decision in Mills, we hold that the District Court's dismissal of the

6
Loves' original claims was a final judgment on the merits for

purposes of applying the resjudicata bar.

The Loves contend that the Boucher court's refusal to apply

that doctrine based on considerations of fundamental fairness

should guide our decision in this case because their claim, like

the claim in Boucher, is based in part on 42 U.S.C. § 1983.

However, as pointed out in Boucher, the United States Circuit Courts

of Appeal are not in agreement on the question of whether resjudicata

bars a 5 1983 action in federal court where the constitutional

claims could have been raised in an earlier state court proceeding,

but were not. Boucher, 5.22 F. Supp. at 606. That court recognized

that the Ninth Circuit has held that such a failure bars a

subsequent § 1983 action in federal court. Boucher, 522 F. supp. at

606 (citing Scogginv. Schrunk (9th Cir. 1975), 522 F.2d 436).

Although the Boucher decision did not apply the bar, based on

the court's concern for manifest unfairness, its decision was based

on the unique facts of that case. We are not presented with the

same considerations in this case and conclude, as we did in Whiny,

that we are not here presented with facts which would justify

rejection of the doctrine of resjudicata based on principles of

fundamental fairness. We hold that the doctrine of resjudicata does

bar § 1983 claims in Montana's courts when the constitutional
claims could have been raised in an earlier proceeding, but were

not.

The Loves also claim that new theories of recovery, and new

facts alleged in their amended complaint in this case, preclude the

application of resjudicata. However, applying our four-part test, we

conclude otherwise.

The underlying subject matter which formed the basis for the

complaints in Love I and the current litigation are the same. In

LoveI, the Loves claimed that the Irrigation District shut off their

water in violation of their rights, Montana law, and the District's

bylaws. The amended complaint filed in this case claimed that the

District's alleged failure to provide water violated contractual

obligations, statutory duties, bylaws, 42 U.S.C. § 1983, the

covenant of good faith and fair dealing, and constituted fraud.

The underlying subject matter in the amended complaint in this case

was the District's failure to provide water. The same subject

matter that gave rise to the initial claim was the basis for the

additional causes of action.

Both actions were brought by the Loves against the Irrigation

District and its individual members. Therefore, the parties or

their privies are the same.

The third element is whether the issues in the two cases are

the same and whether they relate to the same subject matter. The

Loves contend that because new theories of recovery are alleged,

the issues are not the same.

8
However, the doctrine of resjudicata bars not only issues that

were actually litigated, but also those that could have been

litigated in a prior proceeding. Mills, 864 P.2d at 1267. A party

should not be able to litigate a matter that the party already had

the opportunity to litigate; public policy dictates that there must

be some end to litigation. Shefield Ins. Co. v. Lighthouse Properties (1992 ) ,

252 Mont. 321, 324, 828 P.2d 1369, 13 7 1; First Bank v. Fourth Judicial Dist.

Court (1987)) 226 Mont. 515, 519-20, 737 P.2d 1132, 1134-35. Once

a party has had an opportunity to present a claim, the judgment in

a previous case is final as to the issues that were raised, as well

as those that could have been raised. SeeBurgessv.Montana (1989), 237

Mont. 364, 366, 772 P.2d 1272, 1273. This notion arises from

public policy designed to prevent endless piecemeal attacks on

previous judgments. we’ellmanv. Wellman (1982), 198 Mont. 42, 46, 643

P.2d 573, 575. We conclude that the theories of recovery alleged

in this cause of action could have been litigated in the prior

proceeding.

The Loves, in another attempt to distinguish Love I from the

current case, claim that the only damages claimed in LoveI were for

lost crops in 1983, and for punitive damages. In this case, they

claim damage for 1983, 1988, 1989, and the years affected

thereafter, as well as costs of reconditioning the land. However,

their prior complaint was not dismissed until November 9, 1989.

The same damages could have been alleged by amendment of their

9
complaint in the Love I litigation, or they could have claimed

damages, as they have in this case, for 1983 and years affected

thereafter. Additional damages, like new theories, could have been

alleged in the previous proceeding. Further, had they succeeded in

their original action, they could have sought equitable relief

which would have avoided the damage now complained of.

Finally, the fourth requirement is satisfied. The Loves were

the plaintiffs, and the Irrigation District, as well as its

individual commissioners, were the defendants in both actions. The

capacities of the parties involved have not changed in relation to

the subject matter and the issues in the litigation. See First Bank,

737 P.Zd at 1135.

The petition for supervisory control is granted. The order of

the District Court which denied the Irrigation District's motion

for judgment on the pleadings based on the doctrine of resjudicata,

pursuant to Rule 12(c), M.R.Civ.P., is reversed and this case is

remanded to the District Court for entry of judgment for the

defendants.

Jus ce

We concur:

the