No. 94-412

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

KENNETH GREENWOOD,

Plaintiff and Appellant,

-vSTEVE NELSON TRUCKING, INC.,

Defendant and CrossAppellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

1n and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Reuss, Wright, Tolliver and Guthals, Billings,

Montana

For Respondent:

Brad L. Arndorfer, Billings, Montana

Filed:

Submitted on Briefs: December 8, 1994

Decided: March 7, 1995
Justice Fred J. Weber delivered the Opinion of the Court

This is an appeal from the grant of summary judgment to Steve

Nelson Trucking by the Thirteenth Judicial District Court,

Yellowstone County. We affirm.

We consider the following issues:

I . Did the District Court err in granting summary judgment to

Steve Nelson Trucking?

II. Did the District Court err in denying Steve Nelson Trucking

its attorney's fees?

O n September 24, 1990, Kenneth Greenwood (Greenwood)

contracted with Steve Nelson Trucking (Nelson Trucking) to have

Nelson Trucking haul livestock from Nye, Montana to Glentana,

Montana. Nelson Trucking hauled the livestock on September 25,

1990 and charged Greenwood $3,174.80.

In the hauling of three loads of livestock, two calves were

injured. Greenwood alleges that Nelson Trucking agreed to charge

$946 per load and at three loads, the total would be $2,838.00.

Greenwood deducted the cost of the injured calves from the

$2,838.00 and tendered payment to Nelson Trucking of $1,972.29.

Nelson Trucking sued Greenwood in Justice Court for $1,202.51.

Greenwood did not submit an answer on Nelson Trucking's charges

until the day of trial. The Justice of the Peace sustained Nelson

Trucking's objec.tion and refused the answer. The court entered a

default judgment for Nelson Trucking ordering Greenwood to pay

$1,202.51 and $35.00 court costs. Greenwood did not appeal the

Justice Court decision.

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Greenwood then filed an action in District Court alleging that

Nelson Trucking overcharged him for hauling the cattle and that he

had two injured calves worth $865.71. Greenwood also alleged that

Nelson Trucking violated § 69-12-502, MCA, and that Greenwood

should recover :for the overcharge. Greenwood asks for treble

damages and attorney's fees.

Nelson Trucking moved the court for summary judgment arguing

that Greenwood's claims cannot be filed again, having already been

filed in Justice Court and decided. The District Court granted

summary judgment to Nelson Trucking.

Did the District Court err in granting summary judgment to

Steve Nelson Trucking?

The District Court granted summary judgment based upon its

analysis that Greenwood's action was a collateral attack on the

Justice Court's ruling. The court determined that the original

contract to haul cattle was not void because Nelson Trucking

overcharged Greenwood. According to the court, the appropriate

statute § 69-12-502, MCA, requiring a trucking company to only

charge approved rates, does not say that any contract involving

higher rates is void.

Further, the court stated that §§ 28-2-701, and 28-2-803, MCA,

only make a contract void when the contract has an illegal purpose.

Hauling cattle from place to place is not an illegal purpose, The

contract is not void; therefore, any claims brought before the

Justice Court or claims that should have been brought before the

Justice Court are res judicata.
Summary judgment should be granted if the moving party

successfully carries its burden to establish that there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Thomas v. Hale (1990), 246 Mont. 64,

802 P.Zd 1255. Once the movant has discharged this burden of

proof, then the non-moving party must come forward with substantial

evidence raising a genuine issue of material fact. Thomas, 246

Mont. at 66-67, 802 P.2d at 1257.

Greenwood argues that material issues of fact exist arguing

that his contract to haul cattle was void because the consideration

for the contract was not lawful pursuant to 5 28-2-803 and § 28-2-

701, MCA. According to Greenwood, the void contract prohibits a

finding of res judicata. Further, Greenwood argues that res

judicata is not applicable here because the issues are not the

same.

Nelson Trucking contends that only one of Greenwood's claims

was not considered by the Justice Court. Nelson Trucking argues

that Greenwood's excessive charge claim, though not considered by

the Justice Court, should have been brought and cannot now be

raised. Nelson Trucking contends that all issues are res judicata

and, therefore, it is entitled to summary judgment as a matter of

law.

Greenwood centers his arguments on unlawful consideration.

The consideration for hauling cattle was money. Money is not

unlawful consideration. "Amount of money" does not make the

consideration unlawful. Greenwood has provided us with no legal

precedent for his legal argument. His contract was not based upon

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unlawful consideration and is not void. Not being void, the

contract claims made by Greenwood must be analyzed as to whether

they are res judicata.

Res judicata requires that the parties 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 (1991), 247 Mont.

285, 806 P.2d 537. 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. Whirry

v. Swanson (1992), 254 Mont. 248, 836 P.2d 1227.

In the present action, Greenwood had an opportunity to

litigate the claims that he now charges against Nelson Trucking.

The fact that he did not file an answer until the day of trial and

suffered a default judgment does not negate the fact that he had

the opportunity to litigate all claims arising from the contract

with Nelson Trucking. Greenwood could have appealed his default

judgment but chose not to do so. Having made that decision,

Greenwood cannot now raise the same issues concerning the contract

price and Nelson Trucking's negligence. These issues are res

judicata because the parties, the issues, the subject matter, and

the parties' capacities are the same as those raised in Justice

Court.

In addition to the issues considered by the Justice Court,

Greenwood contends that he was charged an excessive amount for the

services. The materials considered in connection with the summary

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judgment show that Greenwood paid $1,972.89 of the $3,174.80

contract price. The Justice Court assessed Greenwood $1,202.51.

Because of an admitted $200 overcharge, Nelson Trucking filed a

partial satisfaction of $200 as to Greenwood. Greenwood has failed

to establish any overcharge other than the admitted $200 overcharge

for which a partial satisfaction has been given. As a result

Greenwood has no basis to contend that he paid an excess charge.

We affirm the conclusion of the District Court that Greenwood

failed to raise an issue of material fact with regard to any excess

charges.

The District Court was correct in granting summary judgment on

this issue as well as other issues, because no evidence was

presented to show that Greenwood had overpaid Nelson Trucking.

We hold the District Court correctly granted summary judgment

to Nelson Trucking because Greenwood's claims are barred by the

doctrine of res judicata.

II.

Did the District Court err in denying Steve Nelson Trucking

its attorney's fees?

Nelson Trucking filed a cross-appeal seeking its attorney's

fees because Greenwood has continued to engage in frivolous

litigation. Nelson Trucking cites State v. Frank (1987), 226 Mont.

283, 735 P.2d 290, for the proposition that equity demands such an

award. Greenwood argues that the present case does not represent

any "extreme" situation which would demand the equitable action of

grant of attorney's fees.

The Frank case involves attorney's fees awarded as costs

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because a governmental entity had acted in bad faith or pursued a

claim frivolously. -IFrank 226 Mont. at 292-293. The present case

contains no governmental entity. Nor does the present case concern

"extreme" facts as presented in Frank. Frank is not authority for

Nelson Trucking's arguments.

The general rule for award of attorney's fees is that absent

statute or contract, attorney's fees will not be awarded. Sage v.

Rogers (1993), 257 Mont. 229, 848 P.2d 1034. In isolated

instances, a district court, by using its discretion, can award

attorney's fees to make an injured party whole under its equity

powers. Goodover v. Lindeys (1992), 255 Mont. 430, 843 P.2d 765.

This case does not present one of the rare cases in which a

district court could use its equitable powers to award such fees.

We hold that the District Court did not err in denying Steve

Nelson Trucking attorney's fees.

Affirmed.
March 7, 1995

CERTIFICATE OF SERVICE

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

following named:

J. Reuss, Esq.

Wright, Tolliver and Guthals, P.C.

Box 1977

Billings MT 59103-1977

Brad L. Arndorfer

Attorney At Law

Box 412

Billings MT 59103-0412

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY: Aby&=-’

Deputy I/