DA 10
- 0514 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 165 MIKE TOURIS and CHUCK SNEED, Plaintiffs and Appellants, v. FLATHEAD COUNTY, BIGFORK LAND USE ADVISORY COMMITTEE, FLATHEAD COUNTY PLANNING BOARD, FLATHEAD COUNTY BOARD OF COMMISSIONERS, FLATHEAD COUNTY PLANNING AND ZONING OFFICE, FLATHEAD COUNTY ZONING ADMINISTRATOR JEFF HARRIS and DOES 1
- 10, inclusive, Defendants and Appellees.
APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DV 08
- 355(C) Honorable Stewart E. Stadler, Presiding Judge COUNSEL OF RECORD:

For Appellants: Tammi E. Fisher, Noah H. Bodman; Fisher Law Firm, Kalispell, Montana For Appellee s: Paul J. Nicol; Office of the Flathead County Attorney, Kalispell, Montana Submitted on Briefs: May 25, 2011 Decided: July 12, 2011 Filed:

__________________________________________ Clerk July 12 20112

Chief Justice Mike McGrath delivered the Opinion of the C ourt. ¶1 Mike Touris and Chuck Sneed ( “ Touris ” ) appealf rom an order of the District Court, Eleventh Judicial District, Flathead County, granting su mmary judgment in fa vor of Flathead County, Bigfork Land Use Advisory Committee, Flathead County Plannin g Board, Flathead County Board o f Commissioners, Flathead County Planning and Zoning Office, Flathead County Zoning Administrator Jeff Harris, and Does 1
- 10, inclusive (“the County”). We affirm. ISSUES ¶2 We restate Touris’ issues on appeal: 1. Whether the District Court correctly concluded that res judicata barredTouris’ claims
. 2. Whether the County waived the defense of res judicata. BACKGROUND ¶3 On February 14, 2008, the Flathead County Board of Commissioners denied Touris ’ request for a zoning c hange. On March 7, 2008,pursuant to § 72
- 2
- 110, M CA, Touris filed a petition for judicial review, Mike Touris and Chuck Sneed v. Flathead County Board of Commissioners , DV
- 08
- 328(A) ( Touris I ), in the District Court of Flathead County
. The petition challenged the validity of the Board of Commissioners ’ decision, f

actually a lleging that( 1) Touris applied for a zoning change, (2) the Bigfork Land Use Advisory Committee denied Touris’ application, (3) the subsequent staff report from the Flathead County Planning and Zoning O f fice was inaccurate and biased, (4)3

me mbers of the Planning Board were aware of the inaccuracies and bias, (5) the Flathead County Board of Comm issioners adopted the staff report, (6) some members of the Board of C ommissioners realized that the staff report contradicted their opinions and sought
new findings of

f act, (7) the Bigfork Land Use Advisory Committee exerted undue pressure on the Board of Commissioners by writing letters to the local newspaper and a letter directly to the Board , and (8) at the sub sequent hearing, despite knowing of the inaccurate report, the Board of Commissioners voted to deny Touris’ application. ¶4 Tourisarg

ued that these facts established the Board of Commissioners ’ d ecision
was based on errant findings of f act, was contrary to the stated opinion of one commissioner, and the Board of Commissi oners had been improperly misle d by the Zoning Administrator. Touris further alleged: 22. On the foregoing bases, the decision of the Board of Commissioners was: a. Made upon unlawful procedure ; b. Affected by errors of law; c. Clearly erroneous in vie w of the reliable, probative, and substantial ev idence on the whole record; and d. Arbitrary and capricious and characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. ¶5 On Ap ril 2, 2008 , Flathead County filed an answer and mo ved for su mmary judgment
. In response, Touris argued, in part, that the Board of Commissioners’ decision
was a violation of equal protection, and substantive and procedural due process. A year later, o n April 14, 2009, Touris mo ved to dismiss Touris I with prejudice. The District Court granted Touris’ motion on April 21, 2009. ¶6 In the meantime, o n March 14, 2008, seven days subsequent to the filing of Touris4

I , T ouris filed this current action ( Touris II )
. Touris II set forth a factual scenario identical to Touris I

, save form

inor changes in paragraph structure and lang uage. The Touris II complaint asserted 11 counts: I Violation of due process by the Bigfork Land Use Advisory Committee; II negligence/n egligence p er s e by the Bigfork L and Use Advisory Committee; III vi olation of equal protection by the Bigfork Land Use Advisory Committee; IIIa negligence by

the Planning Board; IV violation of equal protection by the Board of Commissioners; V n egligenc e by

the Board of Commissioners; VI violation of substantive due processby the Board of Commissioners; VII negligent misrepresentation by the Flathead County Planning and Zoning Office; VIII violation of equal protection by the Flathead County Planning and Zoning Office; IX violation of procedural due processby Jeff Harris; and X fa ilureb y Flathead County t o adequately train and supervise employees and board members
. ¶7 On April 3 , 2008, the County moved to dismiss Touris II pursuant to M. R. Civ. P
. 12 (b)(6). On January 13 , 2009, the District Court entered an order dismissing some of the counts. The District Court left in place Touris’ simple negligence counts (II, IIIa, V), and equal protection claims (III, VIII). Additionally, the Court declinedt o d ismiss Touris’ f ailure
- to -trainc ount (X) , because it was premised on the surviving e qual protection claims. Flathead County filed an answer on February 2 , 2009
. ¶8 On December 1, 2009, Flathead County moved to amend its answer to include a defense of res judicata. The County argued it was previously unable to assert res judicata because Touris I

was pending when the original answer in Touris II was filed
. On5

February 9, 2010, the District Court granted the County’s motion. The County subsequently amende d its answer in Touris II

andinclude dres judicata as an affirmative defense. ¶9 On February 2 6 , 2010, the County moved for summary judgment on the remaining counts in Touris II

. The County asserted that Touris II was barred by res judicata . On October 4, 2010, the District Court entered an order dismissing Touris II
. Touris appeals from that dismissal. STANDARD OF REVIEW ¶10 We rev

iew a court’sg

rant of summary judgment de novo. Wiser v. Mont. Bd. of Dentistry , 2011 MT 56 , ¶ 6, 360 Mont. 1 , __ P.3d __. “ A d istrict court’ s application of res judicata is an issue of law which we review for correctness. ” Wi ser , ¶ 7. DISCUSSION ¶11 Whether the District Court correctly concluded that res judicata barred Touris ’ claims in Touris II
. ¶12 The doctrine of res judicata , or claim preclusion, bars re
- litigationof a claim that a party has already had the opportunity to litigate. Baltrusch v. Baltrusch , 2006 MT 51 , ¶ 15, 331 Mont. 281, 1 30 P.3d 1267
. Central to res judicata is the concept of finality; litigation must, at somepoint, come to an end
. State v. Southwick , 2007 MT 257, ¶ 15, 339 Mont. 281,1 69 P.3d 698 ; Orlando v. Prewett , 236 Mont. 478, 481 , 771 P.2d 111, 113 (1989)
. In addition, res judicata promotes judicial efficiency, deterring plaintiffs from splitting a sing

le cause of action into more than one lawsuit. Baltrusch , ¶ 15.6

¶13 A matter is res judicata if four elements are met: 1. The parties or their privies are the same; 2. The subject matter of the present and past actions is the same; 3. The issues are the same and rel ate to the same subject matter; and 4. The capacities of the parties are the same to the subje ct matter and issues between them. Wi ser , ¶ 9. Additionally, res judicata only applieso nce a final judgment on the merits has been entered

in an earlier action
. Baltrusch , ¶ 15; Wi ser , ¶ 9. ¶14 On appeal, Touris concedes that the first element, parties and privies, is met. Touris conc edes the fourth elementas well. Touris challenges (1) whether Touris I was a final judgment on the merits, (2) whether the subject matter of Touris I i s the same as Touris II , a nd (3) whether the issues of Touris I , are the same as Touris II and relate to the same subject matter. We address each in turn.
a. Final Judgment on the M erits ¶15 Touris I was a final judgment on the merits for th e purposes of res judicata because Touris dismissed that action with prejudice
. Voluntary dismis sal of an action with prejudicec onstitutes a final judgment on the merits. Beasley v. Flathead County, 2009 MT 121 , ¶ 19, 350 Mont. 177, 206 P.3d 915
. The f act that Touris I

was resolved withoutsubstantive resolution of themeritso f Touris’ claimsi s irrelevant for the purposes of res judicata. See Xin Xu v. McLaughlin Research Inst. for Biomedical Science, 2005 MT 209 , ¶ ¶ 32
- 36 , 328 Mont. 232, 1 19 P.3d 10 0 (res judicata barred defamation claim because it could have been brought in prior action that had b een dismissed with prejudice).7

¶16 Moreover, Touris’ assertion that res judicata applies only t o actions filed subsequent to a final judgment, is meritless. The “date of rendition of the judgment is controlling for purposes of res judicata, not the dates of commencement of the action creating the bar or the action to be affected by the bar.” United States ex rel. Barajas v. Northrop Corp ., 147 F.3d 905 , 909 (9 th Cir. 1998); see Vi nes v. Univ. of La ., 398 F.3d 700, 712 (5th Cir. 2005); see Blair v. Equifax Check Servs ., 181 F.3d 832 , 838 (7th Cir. 1999); Restatement (Second) of Judgments § 14 (1980 ) (“For the purposes of res judicata, the effective date of a fin al judgment is the date of its rendition, without regard to the date of commencement of the action in which it is rendered or the action in which it is to be given effect. ” )
. Thus, w

hen Touris I

was dismissedwith prejudiceon April 21, it became
a final judgmentf

or res judicata purposes and applied to Touris II
. To accept Touris ’ position would encourage the duplicative, piecemeal and potentially endless filings that res judicata seeksto prevent . Somont Oil Co. v. A & G Drilling, Inc ., 2008 MT 447 , ¶ 11 , 348 Mont. 12, 199 P.3d 241 ; Olympic Coast Inv., Inc. v. Wright, 2005 MT 4, ¶ 26 , 325 Mont. 307,105 P.3d 743
. b. Subject Matter ¶17 The subject matter of Touris I a nd Touris II

i s identical. This element of res judicatais concerned with whether the two act ions arise from the same underlying basi s . Wi ser , ¶¶ 12
- 13; State ex rel. Harlem Irrigation Dist. v. Montana Seventeenth Judicial Dist. Court , 271 Mont. 129 , 133
- 34, 894 P.2d 943, 945 (1995)
. At the heart of both Touris I and Touris II

i s the validity of

the decision by theF lathead County Board of8

Commissioners to deny

T ouris’ request for a zoning change. As previously noted, both actions rely on an identical factual basis. Touris makes no plausible argument that Touris I and Touris II

concern distinctsubject matter.
c. Identity of Issues ¶18 “Res judicata bars not only issues that were actually litigated, but also those that could have been litigated in a prior proceeding.” Harlem , 271 Mont. at 134, 894 P.2d at 946; accord Wi ser , ¶ 17. In the case at hand , Touris actually litigated all of Touris II’s issues in Touris I

. Touris’ numerousneg

ligencec laims in Touris II were all alleged as the factual basis for Touris I
. I n fact, h e concede s, “ Touris II does contain certain claims that seek damages for the negligent decision of the Commissioners which potentially involves a similar analysis to the claims of Touris I .” Furthermore, Tourisa lleg ed violations of equal protection in Touris I

. The District Court found that in Touris I , “Plaintiffs argued that t

heir rights to equal protection and substantive and procedural due process had

b een v iolated.”T ouris has not challenged thisf inding on appeal. F inally, the District Court concluded that the f ailure
- to - train count was derivative of Touris’ alleged equal p rotection violations , and Touris has not challenged this conclusion on appeal. Thus, a llof the claimsin Touris II were litigated in Touris I
. ¶19 Touris asserts that a p etition for judicial review is procedurally distinct from a jury trial, and that this differenceprecludes res judicata. However, this argument is beside the point. T ouris dismissed Touris I with prejudice. A

n action that is dismissed “with prejudice” is conclusive as to the rights of the parties ‘ “ as if the suit had been prosecuted9

to a final adjudication adverse to the plaintiff. ” ’ State ex rel. Torres v. Montana Eighth Judicial Dist. Court , 265 Mont. 445 , 452, 877 P.2d 1008, 1012 (1994) (quoting Schuster
v. Northern Co. , 127 Mont. 39, 45, 257 P.2d 249 , 252( 1953) )
. When Touris dismi ssed Touris I with prejudice, all of his claims that were raised were adjudicated adversely to him. Thus, there is nothing left to l itigate in Touris II
. T ouris foreclosed on that possibility when he dismissed Touris I with prejudice. ¶20 Whether the County waived the defense of res judicata
. ¶21 Touris makes a final arg ument that res judicata cannot apply because the County waived theright to assert res judicata
. Hearguesthat by allowing Touris I a nd Touris II to proceed concurrently, the County acquiesced to “split
- claims
. ”The Restatement (Second) of Judgments pr ovides that res judicata does not apply where the “parties have ag reed in term or in effect that the plaintiff ma y split his claim, or the defendant has acquiesced therein.” Restatement (Second) o f Judgments , § 26(1)(a). ¶22 Montana has never adopted § 26 of the restatement, Fisher v. State Farm Gen. Ins. Co ., 1999 MT 308 , ¶ 17, 297 Mont. 201, 991 P.2d 452 , andwe need not decide whether adoption is warranted in the case at hand
. I n Fi sher , theC ourt concluded, “this is not a ‘claim splitting’ c ase but, rather, one in which the original complaint was drafted so broadly that the judgment in that action precluded [t] his second action.” Fisher , ¶ 18. Likewise, Touris I

and Touris II

d idnot involve sp lit claims ; they involve dthe same claims
. A s noteda

bove, Touris II’s issues were raised in Touris I
. A s a result, t

he judgment in Touris I

precludes Touris II

. A plaintiff cannot continually seek re
- litigation10

of issues under the guise of “claim
- splitting.” To accept Touris’ positionwould frustrate
a purpose of res judicata, protecting defendants from repetitive lawsuits, andinstead encourageav

eritable whack
- a - mole of contemporaneously
- filed duplicative lawsuits based upon identical claims. ¶23 Affirmed. /S/ MIKE McGRATH We concur: /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JIM RICE