No. 83-115 

Ill THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

DALTON E. WELLIblAN and ANNA FJELLMATJ, 

husband and wife, 

Plaintiffs and Appellants, 

EDGAR G. WELLMAN and JOSIE WELLMAN, 

husband and wife, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert C. Sykes, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

E. Eugene Atherton, Kalispell, Montana 

For Respondents : 

Warden, Christiansen, Johnson & Berg; Gary R. 

Christiansen, Kalispell, Montana 

Submitted on Briefs: June 30, 1983 

Decided : .-. 8 1983 

Filed: SEP 8 - 1983 

- 

Clerk 
Mr. 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 the plaintiffs1 action was barred 

by res judicata from a 1971 default judgment. Likewise, the 

District Court in the case at bar decided res judicata barred 

the plaintiffs1 present action. The District Court also held 

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 

ownership were 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-law and 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, which was denied by the court. 

The present action actually was commenced in Marion 

County, Oregon, on July 12, 1977. In that complaint the son 
and daughter-in-law sought an accounting of property 

interests that ha.d been determined in the 1971 action in 

addition to several other alleged ownership rights. On March 

2, 1981, it was dismissed from the Oregon court by agreement 

of the parties with the stipulation that the son and 

daughter-in-law could bring the proceeding to Montana 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 action was barred by res judicata. 

Meanwhile, this Court was deciding a similar case 

between the same parties. Wellman v. Wellman, supra. In 

that action, the plaintiffs had 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 judicata barred the plaintiffs1 action. 

The case at bar was held in abeyance by the District 

Court pending our decision in the previous action between 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 plaintiffs1 action 

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 1971 decision 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 doctrine of 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 any 
other 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 subject matter 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 

accounting action for events occurring subsequent to 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 judgment had yet to be 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), - Mont . - I 
616 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 full opportunity 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 different property 

until the issue of res judicata was asserted by respondents. 

In addition, we hold that the statute of limitations 

bars appellants' cause of action. The statute of 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: "An action for relief not otherwise provided 

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 liberty or property. Bergin v. 

Temple (1941), 111 Mont. 539, 111 P.2d 286. 

Appellants state in their brief that they first became 

aware of business disputes with respondents upon their 

remarriage in 1970. The complaint was 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 five year 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.ey v. Blacker (1915), 51 

Mont. 364, 370, 371, 152 P. 758, 759, applied in Hynes v. 

Silver Prince Mining Co. (1929), 86 Mont. 10, 281 P. 548 and 

Montgomery v. Bank of Dillon (1943), 114 Mont. 395, 136 P.2d 

760; and cited in Davis v. Steingruber (19571, 131 Mont. 468, 

1 ""0 

311 P.2d 784 and Johnson v. Johnson (19771, 172 Mont. MI 561 

"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 . . . '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, 

no matter how apparently just his claim may be; and 

this is particularly so where 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 such a change." 

For the above stated reasons, we affirm the judgment of 

the District Court. 

/ Justice 
We concur: 

%&dl psbd& 

Chief Justice