c NO. 91-608 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

JUDY LORENE WHIRRY, Plaintiff and Appellant,-vsHARRY FRANKLIN SWANSON, Defendant and Respondent.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Leif B. Erickson, Judge presiding.

COUNSEL OF RECORD: For Appellant: George B. Best,Attorney at Law,Kalispell,Montana For Respondent: Richard DeJana,Attorney at Law,Kalispell,Montana

Submitted on Briefs: Decided: April 30, 1992 August 24, 1992Justice Karla M. Gray delivered the Opinion of the Court.
This is an appeal from an Order of the Eleventh Judicial District Court, Flathead County, granting defendant/respondentls Motion forJudgment on the Pleadings and dismissing the action with prejudice. We affirm. The issues on appeal are: 1. Did the District Court err in concluding that res judicata barred the action before it? 2. Did the District Court's application of res judicata violate Whirrylsright to due process? ABC Collectors brought an action in justice court against appellant Judy Whirry (Whirry) for payment of a medical debt owed by Whirry. Whirry filed an answer inwhich she admitted receiving the medical services and not paying for them. Whirry also filed a third-party complaint againstHarry Swanson (Swanson) alleging that she incurred the medical debt as a result of injuries received in

an automobile accident in which Swanson was negligent; on that basis, she asserted that Swansonwas solely liable for any judgment against her. Whirry subsequently moved for summary judgment against Swanson on her third-party complaint. The court granted summary judgment to Whirry. Whirry then filed a complaint in District Court seeking recovery for all damages she incurred through the negligent and recklessmisconduct of Swanson during the same accident. Swanson filed a Motion for Judgment on the Pleadings and for Dismissal claiming Whirry's District Court action was barred by her summary 2judgment injustice court. The District Court granted Swanson1s motions and dismissed the matter with prejudice on October 30, 1991, Whirry appealed.

Didthe District Court err in concluding that res judicata barred the action before it? The ~istrict Courtdetermined that thefourcriterianecessary for the application of res judicata were met and that thejustice court necessarily determined Swanson's negligence in order to assign liability for Whirryrs medical bills. Whirry argues that

none of the res judicata criteria were met and that the justice court was not a court of competent jurisdiction as also required for application of resjudicata. Her arguments are withoutmerit. The principleunderlying the doctrine of resjudicata isthat

a party isprohibited from relitigatinga matter thatthepartyhas already had an opportunity to litigate. Higham v. City of Red Lodge (1991), 247 Mont. 400, 807 P.2d 195. Four substantive criteria forres judicata must be met: t h e p a r t i e sortheirprivies must be the same; the subject matter of the action must be the same; the issues must be the same and relate tothe same subject matter; and the capacities of the persons must be the same in reference to the subject matter and to the issues. Filler v. Richland County (lggl), 247 Mont. 285, 806 P.2d 537. Finally, although often leftunstated, thecourtmaking thejudgment must be

a court of competent jurisdiction. Hughes v. Salo (1983), 203 Mont. 52, 659 P.2d 270, citing Southern Pacific R. Co. v. United States (1897), 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355,377. The four criteria required for res judicata are met here. First, the parties are the same in both actions insofar as Whirry filed against Swansononboth occasions. The fact that the justice court action also involved another party is not relevant since there is no requirement for perfect identity of all parties. Second, the subjectmatter of both of Whirry's complaints against Swanson is the same, namely, the accident caused by Swanson's alleged negligence and Swanson's liability for Whirry's resulting damages. The fourth required criterion is also satisfied: Whirry

was the tort plaintiff and Swanson the tort defendant in both actions involving the parties and both acted in their individual capacities. The third res judicata criterion--whether the issues are the same--is the key element here. In order to determine that the criterion is met, the fundamentalor essential question involved in the second case must have been raised and determined in the first

case. Baertschv. County of Lewis and Clark (1986), 223 Mont. 206, 727 P.2d 504. Inher justice courtcomplaint against Swanson,Whirry claimed that: (1) she and Swansonwere involved in an automobile accident in 1989; (2) the accident was caused by Swanson's negligence; (3) the negligence caused her damage and injury; and (4) as a result, Swanson was solely responsible for the medical services debt she incurred as an outgrowth of the accident. The justice court granted Whirry's motion for summary judgment on her claim againstSwanson. Whirryls District Court complaint asserts that the same accident occurred, that Swansongsnegligence and recklessness caused the accident, that she was injured, and that she incurred medical expenses and other damage as a result. She prays for compensation for all injuries, detriment and damage. It is clear that the essential and fundamental issue in both Whirry complaints against Swanson 

### is Swansonls negligence in causing the accident and Whirryvsinjuries. Determination of this issue is dispositive in both actions. The issue of Swanson's negligence having been raised and determined in Whirrylsjustice court action,we conclude that the identity of issues required 

### for application of res judicata is met. Whirry also argues that justice court was not a court of competent jurisdiction for xes judicata purposes because it could not granther relief for the total damages she suffered as a result of Swanson's negligence. She cites no authority for thisposition. Therefore, we note only the general rule that: [Wlhereaplaintiff who has 

### a claim

### which in 

### its 

### entirety exceeds in amount the courtls jurisdiction brings an action and recovers judgment for an amount within the courtlsjurisdiction,he is,by operation of the judgment precluded from thereaftermaintaining 

### an action for 

### the balance 

### ofhis 

### claim,even though the court renderingthe former judgmenthad no authority to give a judgmentupon this balance.

Whirry

## 's "court of competent juri~diction~~ argument is, in reality, a fairness argument for which she relies on Boucher 

### v. Dramstad (D.Mont. l98l), 522 F.Supp. 604. Her reliance on Boucheris misplaced. Boucher originally involved an action under the Montana Tort Claims Act. Following an unfavorable result on appeal based on a somewhat technical rule of lawaddressed for the first time in that

case by this Court, Boucher filed a federal civil rights action based on the same facts as his state court claim. The defendants raised res judicata as a bar. The federal district courtnoted a differenceof opinion among the Circuit Courts of Appeal on the question of whether res judicata barred a 1983 action in federal courts where the constitutional claims underlying the action could have been raised in an earlier state court proceeding, but were not. Citing the Ninth Circuit's rule that res judicata would bar Boucher's 5 1983 action, the federal district court nonetheless found that, on the facts before it,application of the doctrine of res judicata would result in manifest unfairness to the plaintiff. Boucher, 522 F.Supp. at 607. The court expressed its concern that res judicata would result in plaintiff never having had an opportunity to have his claim evaluated by a court. Neither the facts nor the law in Boucher is applicable here. Most importantly,Whirry has had an opportunity to have her claim of negligence against Swanson evaluated; indeed, she prevailed on that claim in justice court. Thus, even if "manifest unfairness"

were the test for application of res judicata by this Court, that testwould not be met here. Inaddition, itmust be noted that the Boucher court relied on federal cases, cases neither controllingnor persuasive under the facts before us. We conclude that the justice court was a court of competent jurisdiction for determining Whirry's third-party claim against Swanson. We hold that the District Court did not err in concludingthat

res judicata barred the action before it.

Did the District Court's application of res judicata violate Whirry's right to due process? Whirry argues that the District Court violated her right to due process by denying her right to raise issues and litigate her action,toprove liability, and toprove theextent of her damages. Whirry relies on our conclusion in Boyer v. Kargacin (1982), 202 Mont. 54, 656 P.2d 197, that a grant of summary judgment to plaintiff in that case foreclosed the opportunity for a hearing on the merits of defendant's case and violated his right to due process. Bover is inapposite here. In Bover, the plaintiff was granted a temporary restraining order against defendant who parked his car across the ingress to plaintiff's business. The temporary order evolved into a continuing restraining order. On appeal of that order, this Court upheld the order but remandedwith directionsto expedite the trial of the cause for damages. On remand, the district court granted plaintiff summary judgment on the issue of defendant's liability due to its misinterpretation of our instructions on remand; the courtbelieved thatwe had already resolved the issue of liability in plaintiff's favor. On the second appeal, we reversed, concluding that defendanthad had no opportunitytobe heard on the 7issue of liability and, therefore, that his right to due process
was violated. In Bover, the issue of defendant's liability was never heard

or resolved on the merits at any stage. Here, plaintiff pleaded Swanson's negligence in justice court and moved for and was granted summary judgment on that basis. Whirry is correct that she may have had a more extensive recovery had she filed her action in the District Court in the first instance. But she chose to file against Swanson in justice court for the total amount of $470.80. The justice court ultimately entered final judgment in Whirrylsfavor. To allowher to file another action based on the same facts for additional damageswould permit her to relitigate her case. Due process does not require such a result. We hold that the District Court's application of res judicata did not violate Whirryls right to due process. Affinned.

We concur: 

# /

chief Justice

### JusticeWilliam E. Hunt, Sr., dissenting. I 

### dissent. The pursuit of justice has always been a pursuit of fairness within logical parameters. Today's decision instead ignores this goal of jurisprudence and reflects inherent unfairness. The majority opinion fails to recognize a crucial factor inres judicata determination--that the previous judgmentbe made on the merits. Instead, it subjects itself to the ease of a deficient four-prong test with no concern for logic or fairness. Themajority simply states four requisite criterion forthebinding effect of res judicata and satisfies itself without a deeper inspection of the larger issues of justice underlying the plaintiff's claim. Most jurisdictions require thatprior judgments be on the merits. Furthermore,this casewas tried inJusticeCourt. Thus,with no recordbefore it,the DistrictCourthad nomeans of recognizing exactly what was adjudicated on the merits. It could not have known at all whether or not the case was tried on the merits. At most, the District Court was presented with a general ruling from below, not enough to substantiatea summary judgment ruling on res judicata. The majority's result deprives the plaintiff of a full and fairadjudication of her rightful allegation against thedefendant. Its ruling today is facially insufficient to pretend to support traditional notions of justice. I 

### would reverse the DistrictCourt's ruling and remand for a proper determination of the plaintiff's claim.Justice Terry N. Trieweiler dissenting. I also dissent from the opinion of the majority. I concur with JusticeHunt's conclusionthat themajoritydecision isunfair and does not serve thepurposes forwhich theprinciple ofresjudicata

was established. However, the majority opinion is also legally incorrect. The majority concedes that in order to prove that Whirry's claim is barred by resjudicata Swanson had to establish, among other things, that the issues adjudicated in the Justice Court were the same issuesthatWhirry sought to adjudicate in the District Court. Swanson also had to establish that the prior judgment came from a court of competent jurisdiction. In this case,neither elementwas proven. Whirry's action in the Justice Court was solely for the purpose of seeking indemnity for a medical bill from one of the health care providerswho had treated her. In the District Court, she sought damages for the remainder of her medical expenses, loss of wages and future earning capacity, pain and suffering, loss of her established course of life,andpunitive damages. These claims all presented issues different from those which were litigated in the Justice Court action. Additionally, there was no proof by the defendant, nor anybasis in the pleadings for establishingthat the Justice Court had jurisdiction to adjudicate these additional claimshad they been presented. Pursuant to 5 3-10-301(l) (c)

## ,MCA, justice courts, at the time that this casewas litigated,could notconsider claims based on injury to the person where the amount in dispute exceeded $3500. In order to grant judgment on the pleadings, it had to be plain from the pleadings that plaintiff's claim did not exceed that amount in order to establish that the Justice Court had jurisdictionto considerall the issues raised in the District Court action. The majority concludes that: It is clear that the essential and fundamental issue in both Whirry complaints against Swanson is Swanson's negligence in causingthe accident andWhirry's injuries. Determination of this issue is dispositive in both actions. The issue of Swanson's negligence having been raised and determined in Whirry's justice court action, we conclude that the identity of issues required for application of res judicata is met. The majority's conclusion confuses resjudicata with collateral estoppel. The fact that one issue (negligence)was resolved in the previous actiondoes not bar considerationof issues whichwere not resolved in a subsequent action. It simply means that the defendant is collaterally estopped from denying liability in the second action. The fact that the issue of negligence was previously raised and determined does not address the issue of Whirry's damages and should not preclude her from raising those issues in a court of competent jurisdiction. Iagree that themajority's conclusion is unfair. However, I also conclude that it is legally and logically indefensible, and therefore, dissent from the majority opinion.August24, 1992 CERTIFICATE

### OFSERVICE Iherebycertifythatthefollowingorderwassentby UnitedStatesmail,prepaid,tothefollowing named: GeorgeB.Best AttorneyatLaw P.O. Box278 Kalispell,

### MT 59903 RichardDeJana AttorneyatLaw P.O. Box1757 Kalispell,MT 59903-1757 

### EDSMITH CLERK

### OFTHESUPREMECOURT STAmOFMQNTANA 

### BY: Depu