No. 83-115
Ill THE SUPREMECOURT OF THE STATE OF MONTANA 1983

DALTON

### E. WELLIblAN and ANNA FJELLMATJ, husband and wife, PlaintiffsandAppellants,

EDGAR G. WELLMAN and JOSIEWELLMAN, husband andwife, Defendants and Respondents.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, TheHonorable Robert C. Sykes, Judgepresiding.

COUNSEL OF RECORD: ForAppellants: E. EugeneAtherton,Kalispell,Montana

For Respondents: Warden, Christiansen, Johnson & Berg;Gary R. Christiansen,Kalispell,Montana

Submitted on Briefs: June 30, 1983 Decided: .-.8 1983

Filed: 

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- ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.
Plaintiffs, the son and daughter-in-law of d.efend.ant, Edgar G. Wellman (deceased) appeal from a judgment issued by the District Court of the Eleventh Judicial District, Flathead County,dismissing their action for an accounting of certain properties owned by both parties. In Wellman v. Wellman (1982), Mont

# . , 643 P.2d 

### - 573, 39 St.Rep. 752,we decided a similar action brought by the same plaintiffs a.gainst the same defendants. In the prior case, we decided that theplaintiffs1actionwasbarred by res judicata from a 1971default judgment. Likewise,the DistrictCourt in the case atbar decided res judicatabarred theplaintiffs1present action. The DistrictCourt alsoheld that the plaintiffs1 action was barred by the statute of limitations. In 1971,Edgar Wellman brought an action against his son and daughter-in-law to determine ownership of property held by two family corporations. Specifically, rights of ownershipwere determined to properties the parties refer to
as (1) the Madhus property; (2) Isaac Walton Hotel; (3) Bearcreek Ranch; (4) air-strip property; and (5) Wellman Enterprises, Inc. property. A default judgment was entered against the son and daughter-in-lawand a constructive trust
was imposed upon the proceeds from the property until plaintiffs received the amounts due to them. The san and daughter-in-law brought a Rule 60(b)(1)motion to set aside the default judgment, whichwas denied by the court. The present action actually was commenced in Marion County, Oregon,on July 12, 1977. In that complaint the sonand daughter-in-law sought an accounting of property interests that ha.d been determined in the 1971 action in addition to several other alleged ownershiprights. On March 2, 1981, itwas dismissed from the Oregon courtby agreement of the parties with the stipulation that the son and daughter-in-law could bring the proceeding toMontana within 90 days (by June 13, 1981). The complaint was refiled in Montana on July 2, 1981. Defendants filed a motion to dismiss arguing the actionwasbarred by res judicata. Meanwhile, this Court was deciding a similar case between the same parties. Wellman v. Wellman, supra. In that action, the plaintiffshad attempted to attack the 1971 defa.ult judgment, claiming the District Court had exceeded its jurisdiction by granting more relief than was sought in the pleadings. We affirmed the District Court determination that res judicatabarred theplaintiffs1action. The case at bar was held in abeyance by the District Courtpending our decision in theprevious actionbetween the parties. Upon the issuance of our decision that action, defendants renewed their motion to dismiss. The District Court granted the motion stating that the plaintiffs1action
was barred for four reasons: (1) the action was not filed within the time stipulated by the parties in dismissing the Oregon action; (2) the 1971decision is res judicata to all matters claimed by the plaintiffs; (3) the time allowed for bringing the action under the statute of limitations has expired;and, (4)the doctrineof laches. As a general proposition, we have held:

"The doctrine of res judicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby, as to the parties and their privies, in all other actions in the same or anyother judicial tribunal or concurrent jurisdiction." Meagher Co. Water Dist. v. Walter (1976), 169 Mont. 358, 361, 547 P.2d 850, 852. The doctrine bars consideration of an action if four elements are present: (1) the subject matter of the action must be the same; (2) the parties or their privies 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. Brannon v. Lewis and Clark County (1963), 143 Mont. 200, 207, 387 P.2d 706, 711. Appellants argue that the issues and subjectmatter of this action are different from the 1971 action because they are claiming rights to property not considered in the 1971 action. Specifically, counsel for appellants asserts in his brief that this action concerns an accounting of proceeds from the disputed properties that the respondents acquired after 1977 and, thus, the doctrine of 

### - res judicata is inapplicable. We hold that the doctrine of res judicata applies and appellants are barred from asserting their claim. This action is clearly an attempt to relitigate issues that were originally considered in the 1971 action. Although appellants argue that the case before us involves an accountingaction for events occurring subsequentto July 12, 1977, their complaint does not support that assertion. Indeed, such a cause of action could not have arisen in 1977 since the 1971 judgmenthad yet tobe satisfied. Moreover, the fact that appellants appear to name property not considered in the 1971 action does not preclude application of the doctrine of res judicata. The most important element in sustaining a plea of res judicata is identity of issues. Harris v. Harris (1980), 

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# . - I616 P.2d 1099, 37 St.Rep. 1696. The 1971 action was for an accounting of properties in dispute between the two parties. Appellants had a fullopportunity to litigate any claims they had at that time. Importantly, the doctrine of res judicata is founded upon the widely-recognized public policy that there must be some end to litigation. Wellman v. Wellman, supra. Also, it should be noted that appellants did not specifically indicate the dispute involved differentproperty until the issue of res judicatawas asserted by respondents. In addition, we hold that the statute of limitations bars appellants' cause of action. The statuteof limitations applies to suits in equity and actions at law. Mantle v. Speculation Min. Co. (1903), 27 Mont. 473, 71 P. 665. Montana's statute in this regard is section 27-2-215, MCA, which provides: "Anaction for reliefnot otherwiseprovided for must be commenced within five years after the cause of action accrues." A cause of action "accrues" when the right to sue has become vested and appellant can show that another has wrongfully infringed upon his libertyorproperty. Berginv. Temple (1941),111Mont. 539, 111P.2d 286. Appellants state in their brief that they first became
aware of business disputes with respondents upon their remarriage in 1970. The complaintwas filed in Oregon seven years later. Moreover, in 1971, appellants did not resist the action brought by respondents for an accounting of the property in dispute. Clearly, the fiveyear period began to
run in either 1970 or 1971 and appellants are barred from bringing this action. Appellants' argument that they did not become aware of their cause of action until October 1978 or 1979 is without merit since they filed their action in 1977.In addition to the doctrine of res judicata and running of the statute of limitations, appellants' action is barred by the equitable doctrine of 1a.ches. The doctrine of laches
was set forth at some length in Ril.eyv. Blacker (1915), 51 Mont. 364, 370, 371, 152 P. 758, 759, applied in Hynes v. Silver PrinceMining Co. (1929), 86 Mont. 10, 281 P. 548 and Montgomery v. Bank of Dillon (1943),114Mont. 395, 136 P.2d 760;and cited in Davisv. Steingruber (19571,131Mont. 468, 1""0 311P.2d 784 and Johnson v. Johnson (19771,172Mont. MI561

"Laches, considered as a bar independent of the statute of limitations, is a concept of equity; it means negligence in the assertion of a right; it is the practical application of the maxim, 'Equity aids only the vigilant'; and it exists when there has been an unexplained delay of such duration or character as to render the enforcement of the asserted right inequitable

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# . 'Considerations of public policy and the difficulty of doing justice between the parties are sufficient to warrant a court of equity in refusing to institute an investigation where the lapse of time in the assertion of the claim is such as to show inexcusable neglect on the part of the plaintiff, nomatter how apparently justhis claimmay be; and this is particularly sowhere the relations of the parties have been materially altered in the meantime.' [Citing cases.] What constitutes a material change of condition has been the subject of much judicial discussion and some judicial dissension; but whatever doubt there may be as to other circumstances, it never has been questioned, to our knowledge, that the death of one of the parties to the transaction is sucha change." For the above stated reasons,we affirm the judgment of the DistrictCourt.

/ JusticeWe concur: 

# %&dl psbd& Chief Justice