No. 90-471 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

w 1991 

TOM HIGHAM, d/b/a RED LODGE 

GARBAGE SERVICE, 

Plaintiff and Appellant, 

v. 

CITY OF RED LODGE, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, 

Honorable Maurice R. Colberg, Jr., Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Tom Higham, Pro Se, Kalispell, Montana 

For Respondent: 

Gary R. Thomas, City Attorney, Red Lodge, Montana 

Rodney T. Hartman and Don M. Hayes ; Herndon, Hartman 

Sweeney & Halverson, Billings, Montana 

Filed: 

Submitted on Briefs: February 21, 1991 

Decided: March 19, 1991 

I 

Cldrk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The District Court for the Thirteenth Judicial District, 

Carbon County, dismissed plaintiff Tom Highamts tort and constitutional claims against defendant, in a partial summary judgment. 

It also denied Higham leave to file a third amended complaint. 

Higham appeals. We affirm. 

Restated, the issues are: 

1. Did the court err in granting summary judgment in defendant's favor on the tort and constitutional claims? 

2. Did the court err in denying Highamts motion to be allowed 

to file a third amended complaint? 

On May 23, 1984, Higham entered a written contract to haul 

garbage for the City of Red Lodge (City). The contract was to run 

from June 1, 1984, to May 30, 1986. At a special meeting of the 

Red Lodge City Council on June 7, 1984, Higham requested that he 

be released from the contract and that the City either perform the 

garbage hauling itself or reopen the contract to competitive 

bidding. He claimed that the conduct of the city council members 

toward his business had made it impossible to effectively fulfill 

the contract terms. 

Higham originally filed this action in July 1984, requesting 

a declaratory judgment that he was released from his garbage 

hauling contract. Within a month, and acting pro se after his 

attorney withdrew, Higham amended the complaint to include several 
additional counts for declaratory relief. Represented by new 

counsel, Higham filed a second amended complaint in January 1988. 

The second amended complaint abandoned the request for declaratory 

relief. It asserted three counts: one for breach of contract, one 

for breach of the implied covenant of good faith and fair dealing, 

and one for violations of constitutional rights. Higham1s position 

in the second amended complaint is that the June 7, 1984, city 

council meeting was illegal for lack of notice and that the 

termination of his garbage hauling contract was unlawful and was 

retaliatory for his expressed political views. 

The City moved for summary judgment on all three counts of 

Higham1s complaint. Higham moved for partial summary judgment on 

the breach of contract claim. Higham also moved to file a third 

amended complaint. The District Court dismissed Higham1s constitutional claims and bad faith claim on grounds of immunity and res 

judicata. It denied Higham leave to file a third amended complaint 

and denied his motion for partial summary judgment. The court then 

certified for appeal its rulings on the claims which were dismissed. 

I 

Did the court err in granting summary judgment in defendant's 

favor on the tort and constitutional claims? 

Summary judgment is proper when there is no genuine issue of 

material fact and the moving party is entitled to judgment as a 
matter of law. Rule 56(c), M.R.Civ.P. To prevail, the nonmoving 

party must set forth facts demonstrating that a genuine issue of 

fact exists. OIBagy v. First Interstate Bank (1990) , 241 Mont. 44, 

46, 785 P.2d 190, 191. This Court's standard of review is the same 

as that utilized by the trial court. McCracken v. City of Chinook 

(1990), 242 Mont. 21, 24, 788 P.2d 892, 894. We will affirm a 

correct result regardless of the reasoning used by the lower court. 

Phillips v. City of Billings (1988), 233 Mont. 249, 252, 758 P.2d 

772, 774. 

The District Court ruled that Higham's constitutional and tort 

claims were barred under the doctrine of sovereign immunity. It 

also held that the doctrine of res judicata barred Higham from 

asserting constitutional and tort claims arising from conduct prior 

to March 16, 1984, because his previous lawsuit based on the same 

matters was dismissed with prejudice on that date. 

The subject of the previous lawsuit referred to by the 

District Court was Higham's entitlement to haul garbage for the 

City during the period 1983 to 1988. Higham sought damages for 

wrongfully being denied a contract for that period. The complaint 

characterized the City's conduct as fraudulent, arbitrary, and 

capricious. Higham also alleged in that complaint that the City 

Itdid not observe good faith,'' did not accord ''just and fair 

c~nsideration,~' committed a I1personal discriminatory act toward 

the Plaintiff,I1 and had "undertaken unfair and discriminatory 
practices directed against the Plaintiff." Higham asked the 

District Court to require the City to award the garbage contract 

to him and to award him damages including punitive damages. 

Res judicata prohibits a party from relitigating a matter that 

the party has already had the opportunity to litigate. First Bank 

v. Fourth Judicial Dist. Court (1987), 226 Mont. 515, 519, 737 P.2d 

1132, 1134. We conclude that the complaint which was dismissed 

with prejudice on March 16, 1984, raised allegations which raised 

or fairly could have raised any claims of bad faith or violation 

of constitutional rights of Higham arising before or during the 

pendency of that action. Higham had the opportunity to litigate 

those issues, but in stipulating to a dismissal of the action, he 

chose not to do so. When that suit was dismissed with prejudice, 

all such issues were decided. Any entitlement Higham had to a 

contract to haul garbage for the City or to damages based on conduct which was tortious or in violation of his constitutional 

rights before the date of that dismissal was thereby determined 

with finality. 

We hold that the District Court did not err in granting 

summary judgment in favor of defendant on the tort and constitutional claims. Because we have concluded that the court's action 

was correct based upon principles of res judicata, we need not 

decide whether sovereign immunity also bars these claims. 
Did the court err in denying Highamts motion to be allowed to 

file a third amended complaint? 

Highamts proposed third amended complaint would add as 

defendants individual city council members, the city attorney, the 

mayor, Ray Judd, and Ray Judd Ford, Inc. As described in Highamts 

motion to be allowed to amend, the added claim apparently would be 

that negotiations toward a September 11, 1984, lease-purchase 

contract between the City and proposed defendant Ray Judd Ford, 

Inc. , contributed to the City's breach of contract and breach of 

the implied covenant of good faith and fair dealing. 

The District Court stated that Highamts proposed claim would 

be barred by statutes of limitation unless it would relate back to 

the filing of earlier complaints. The court determined that the 

claim did not relate back because the new claim operates on facts 

different than those set forth in the second amended complaint. 

Rule 15(a), M.R.Civ.P., provides that a party may amend 

pleadings by leave of court and such leave shall be freely given 

when justice so requires. Rule 15(c), M.R.Civ.P., provides: 

Whenever the claim or defense asserted in the 

amended pleading arose out of the conduct, 

transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of 

the original pleading. An amendment changing 

the party against whom a claim is asserted 

relates back if the foregoing provision is 

satisfied and, within the period provided by 
law for commencing the action against him, the 

party to be brought in by amendment (1) has 

received such notice of the institution of the 

action that he will not be prejudiced in 

maintaining his defense on the merits, and (2) 

knew or should have known that, but for a 

mistake concerning the identity of the proper 

party, the action would have been brought 

against him. 

We agree with the District Courtls statement that Highamls proposed 

new claim would add a theory of conspiracy which was not present 

in the second amended complaint. In particular, Ray Judd and Ray 

Judd Ford, Inc., would have had no way of predicting from the 

second amended complaint that the action would be amended to 

include them as defendants. We conclude that the District Court 

was correct in determining that this new claim should not relate 

back to the time of filing the other complaints. We therefore hold 

that the court did not err in denying Higham1s motion to be allowed 

to file a third amended complaint. 

Affirmed. 
We concur: