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 theThirteenthJudicial District, In and for the County of Carbon, HonorableMauriceR. Colberg,Jr., Judgepresiding.

COUNSEL OF RECORD: For Appellant: Tom Higham, Pro Se, Kalispell, Montana For Respondent: Gary 

### R. Thomas, City Attorney, Red Lodge, Montana RodneyT. Hartmanand DonM. Hayes;Herndon,Hartman Sweeney & Halverson, Billings, Montana

Filed: Submitted on Briefs: February 21, 1991 Decided: March 19, 1991

I CldrkChief Justice J. A. Turnage delivered the Opinion of the Court. The District Court for the Thirteenth Judicial District, Carbon County,dismissedplaintiff TomHighamtstort 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 indenyingHighamts motion tobe 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 contractwas 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 eitherperform 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 attorneywithdrew,Higham amended the complaint to include severaladditional 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 forbreach of contract,one forbreach of the implied covenant of good faithand fair dealing, and one forviolations of constitutionalrights. 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 Higham1scomplaint. Higham moved for partial summary judgment on the breach of contract claim. Higham also moved to file a third amended complaint. TheDistrict Court dismissedHigham1sconstitutional claims and bad faith claim on grounds of immunity and res judicata. Itdenied Higham leave to filea third amended complaint and deniedhismotion forpartial summary judgment. The courtthen certified for appeal its rulings on the claims which were dismissed. I Did the court err ingranting 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 amatter 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 InterstateBank (1990)

## , 241Mont. 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 resultregardless of thereasoningused by the lowercourt. Phillipsv. City of Billings (1988), 233 Mont. 249, 252, 758 P.2d 772, 774. TheDistrict Court ruledthatHigham's constitutionaland tort claims were barred under the doctrine of sovereign immunity. It also held that the doctrine of res judicata barred Higham from asserting constitutionaland tort claims arising fromconductprior 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 thatperiod. The complaint characterized the City's conduct as fraudulent, arbitrary, and capricious. Higham also alleged in that complaint that the City Itdidnot observe good faith,'' did not accord ''just and fair c~nsideration,~' committed a I1personaldiscriminatory act toward the Plaintiff,I1 and had "undertaken unfair and discriminatorypractices 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 judicataprohibits aparty fromrelitigatingamatter that theparty has already had the opportunity to litigate. First Bank



### v. Fourth JudicialDist. Court (1987), 226Mont. 515, 519, 737P.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 tobe allowed to file a third amended complaint? Highamts proposed third amended complaint would add as defendants individual city councilmembers, the city attorney, the mayor, Ray Judd,and Ray Judd Ford, Inc. As described in Highamts motion tobe allowed to amend, the added claim apparentlywould 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 Highamtsproposed claim would be barred by statutesof limitationunless itwould relateback 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 tobe set forth in the original pleading, the amendment relates back to thedate 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 bylaw for commencing theaction againsthim, the party to be brought in by amendment (1) has received suchnotice of the institutionof the action that he will not be prejudiced in maintaininghis defense on themerits, and (2) knew or should have known that, but for a mistake concerning the identity of theproper party, the action would have been brought against him. We agree with theDistrict CourtlsstatementthatHighamls proposed new claim would add a theory of conspiracy which was not present in the second amended complaint. Inparticular, 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 thetime of filingtheother complaints. We thereforehold that the courtdid not err indenying Higham1smotion tobe allowed to file a third amended complaint. Affirmed.We concur: