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, 1992 
Justice 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 for Judgment 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 Whirryls right 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 in which she admitted receiving 

the medical services and not paying for them. Whirry also filed a 

third-party complaint against Harry 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 Swanson was 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 

reckless misconduct 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 

2 
judgment in justice court. The District Court granted Swanson1s 

motions and dismissed the matter with prejudice on October 30, 

1991, Whirry appealed. 

Did the District Court err in concluding that res judicata barred 

the action before it? 

The ~istrict Court determined that the four criteria necessary 

for the application of res judicata were met and that the justice 

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 res judicata. Her arguments are without merit. 

The principle underlying the doctrine of res judicata is that 

a party is prohibited from relitigating a matter that the party has 

already had an opportunity to litigate. Higham v. City of Red 

Lodge (1991), 247 Mont. 400, 807 P.2d 195. Four substantive 

criteria for res judicata must be met: t h e p a r t i e s or their privies 

must be the same; the subject matter of the action must be the 

same; the issues must be the same and relate to the 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 left unstated, the court making the judgment 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 Swanson on both 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 subject matter 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 fundamental or essential question involved in 

the second case must have been raised and determined in the first 

case. Baertsch v. County of Lewis and Clark (1986), 223 Mont. 206, 

727 P.2d 504. 

In her justice court complaint against Swanson, Whirry claimed 

that: (1) she and Swanson were 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 against 
Swanson. 

Whirryls District Court complaint asserts that the same 

accident occurred, that Swansongs negligence 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 Whirryvs injuries. Determination of this 

issue is dispositive in both actions. The issue of Swanson's 

negligence having been raised and determined in Whirryls justice 

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 grant her relief for the total damages she suffered as a result 

of Swanson's negligence. She cites no authority for this position. 

Therefore, we note only the general rule that: 

[Wlhere a plaintiff 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 

courtls jurisdiction, he is, by operation of the judgment 

precluded from thereafter maintaining an action for the 

balance of his claim, even though the court rendering the 

former judgment had no authority to give a judgment upon 

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 Boucher 
is 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 law addressed 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 court noted a difference of 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 

test would not be met here. In addition, it must be noted that the 

Boucher court relied on federal cases, cases neither controlling 
nor 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 concluding that 

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, to prove liability, and to prove the extent 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 remanded with directions to 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 

court believed that we had already resolved the issue of liability 

in plaintiff's favor. On the second appeal, we reversed, 

concluding that defendant had had no opportunity to be heard on the 

7 
issue 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 Whirryls favor. To allow her 

to file another action based on the same facts for additional 

damages would 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. 

Af f inned. 

We concur: / 

chief Justice 

Justice William 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 in res judicata determination--that the previous judgment be 

made on the merits. Instead, it subjects itself to the ease of a 

deficient four-prong test with no concern for logic or fairness. 

The majority simply states four requisite criterion for the binding 

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 that prior judgments 

be on the merits. 

Furthermore, this case was tried in Justice Court. Thus, with 

no record before it, the District Court had no means 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 substantiate a summary judgment ruling on res 

judicata. 

The majority's result deprives the plaintiff of a full and 

fair adjudication of her rightful allegation against the defendant. 

Its ruling today is facially insufficient to pretend to support 

traditional notions of justice. I would reverse the District 
Court'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 Justice Hunt's conclusion that the majority decision is unfair 

and does not serve the purposes for which the principle of resjudicata 

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 issues that Whirry 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 element was 

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 providers who 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, and punitive 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 any basis in the pleadings for establishing that the 

Justice Court had jurisdiction to adjudicate these additional 

claims had they been presented. Pursuant to 5 3-10-301(l) (c) , MCA, 

justice courts, at the time that this case was litigated, could not 
consider 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 jurisdiction to consider all 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 causing the accident and Whirry'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 res judicata with collateral 

estoppel. The fact that one issue (negligence) was resolved in the 

previous action does not bar consideration of issues which were 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. 

I agree that the majority's conclusion is unfair. However, I 

also conclude that it is legally and logically indefensible, and 

therefore, dissent from the majority opinion. 
August 24, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

George B. Best 

Attorney at Law 

P.O. Box 278 

Kalispell, MT 59903 

Richard DeJana 

Attorney at Law 

P.O. Box 1757 

Kalispell, MT 59903-1757 

ED SMITH 

CLERK OF THE SUPREME COURT 

STAmOF MQNTANA 

BY: 

Depu