No. 83-115
Ill THE SUPREME COURT OF THE STATE OF MONTANA
1983
DALTON E. WELLIblAN and ANNA FJELLMATJ,
husband and wife,
Plaintiffs and Appellants,
EDGAR G. WELLMAN and JOSIE WELLMAN,
husband and wife,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Robert C. Sykes, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
E. Eugene Atherton, Kalispell, Montana
For Respondents :
Warden, Christiansen, Johnson & Berg; Gary R.
Christiansen, Kalispell, Montana
Submitted on Briefs: June 30, 1983
Decided : .-. 8 1983
Filed: SEP 8 - 1983
-
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Plaintiffs, the son and daughter-in-law of d.efend.ant,
Edgar G. Wellman (deceased) appeal from a judgment issued by
the District Court of the Eleventh Judicial District,
Flathead County, dismissing their action for an accounting of
certain properties owned by both parties.
In Wellman v. Wellman (1982), Mont . -, 643 P.2d
573, 39 St.Rep. 752, we decided a similar action brought by
the same plaintiffs a.gainst the same defendants. In the
prior case, we decided that the plaintiffs1 action was barred
by res judicata from a 1971 default judgment. Likewise, the
District Court in the case at bar decided res judicata barred
the plaintiffs1 present action. The District Court also held
that the plaintiffs1 action was barred by the statute of
limitations.
In 1971, Edgar Wellman brought an action against his son
and daughter-in-law to determine ownership of property held
by two family corporations. Specifically, rights of
ownership were determined to properties the parties refer to
as (1) the Madhus property; (2) Isaac Walton Hotel; (3)
Bearcreek Ranch; (4) air-strip property; and (5) Wellman
Enterprises, Inc. property. A default judgment was entered
against the son and daughter-in-law and a constructive trust
was imposed upon the proceeds from the property until
plaintiffs received the amounts due to them. The san and
daughter-in-law brought a Rule 60(b) (1) motion to set aside
the default judgment, which was denied by the court.
The present action actually was commenced in Marion
County, Oregon, on July 12, 1977. In that complaint the son
and daughter-in-law sought an accounting of property
interests that ha.d been determined in the 1971 action in
addition to several other alleged ownership rights. On March
2, 1981, it was dismissed from the Oregon court by agreement
of the parties with the stipulation that the son and
daughter-in-law could bring the proceeding to Montana within
90 days (by June 13, 1981). The complaint was refiled in
Montana on July 2, 1981. Defendants filed a motion to
dismiss arguing the action was barred by res judicata.
Meanwhile, this Court was deciding a similar case
between the same parties. Wellman v. Wellman, supra. In
that action, the plaintiffs had attempted to attack the 1971
defa.ult judgment, claiming the District Court had exceeded
its jurisdiction by granting more relief than was sought in
the pleadings. We affirmed the District Court determination
that res judicata barred the plaintiffs1 action.
The case at bar was held in abeyance by the District
Court pending our decision in the previous action between the
parties. Upon the issuance of our decision that action,
defendants renewed their motion to dismiss. The District
Court granted the motion stating that the plaintiffs1 action
was barred for four reasons: (1) the action was not filed
within the time stipulated by the parties in dismissing the
Oregon action; (2) the 1971 decision is res judicata to all
matters claimed by the plaintiffs; (3) the time allowed for
bringing the action under the statute of limitations has
expired; and, (4) the doctrine of laches.
As a general proposition, we have held:
"The doctrine of res judicata states that a final
judgment on the merits by a court of competent
jurisdiction is conclusive as to causes of action
or issues thereby, as to the parties and their
privies, in all other actions in the same or any
other judicial tribunal or concurrent
jurisdiction." Meagher Co. Water Dist. v. Walter
(1976), 169 Mont. 358, 361, 547 P.2d 850, 852.
The doctrine bars consideration of an action if four
elements are present: (1) the subject matter of the action
must be the same; (2) the parties or their privies must be
the same; (3) the issues must be the same and relate to the
same subject matter; and (4) the capacities of the persons
must be the same in reference to the subject matter and to
the issues between them. Brannon v. Lewis and Clark County
(1963), 143 Mont. 200, 207, 387 P.2d 706, 711. Appellants
argue that the issues and subject matter of this action are
different from the 1971 action because they are claiming
rights to property not considered in the 1971 action.
Specifically, counsel for appellants asserts in his brief
that this action concerns an accounting of proceeds from the
disputed properties that the respondents acquired after 1977
and, thus, the doctrine of - judicata is inapplicable.
res
We hold that the doctrine of res judicata applies and
appellants are barred from asserting their claim. This
action is clearly an attempt to relitigate issues that were
originally considered in the 1971 action. Although
appellants argue that the case before us involves an
accounting action for events occurring subsequent to July 12,
1977, their complaint does not support that assertion.
Indeed, such a cause of action could not have arisen in 1977
since the 1971 judgment had yet to be satisfied.
Moreover, the fact that appellants appear to name
property not considered in the 1971 action does not preclude
application of the doctrine of res judicata. The most
important element in sustaining a plea of res judicata is
identity of issues. Harris v. Harris (1980), - Mont .- I
616 P.2d 1099, 37 St.Rep. 1696. The 1971 action was for an
accounting of properties in dispute between the two parties.
Appellants had a full opportunity to litigate any claims they
had at that time. Importantly, the doctrine of res judicata
is founded upon the widely-recognized public policy that
there must be some end to litigation. Wellman v. Wellman,
supra. Also, it should be noted that appellants did not
specifically indicate the dispute involved different property
until the issue of res judicata was asserted by respondents.
In addition, we hold that the statute of limitations
bars appellants' cause of action. The statute of limitations
applies to suits in equity and actions at law. Mantle v.
Speculation Min. Co. (1903), 27 Mont. 473, 71 P. 665.
Montana's statute in this regard is section 27-2-215, MCA,
which provides: "An action for relief not otherwise provided
for must be commenced within five years after the cause of
action accrues."
A cause of action "accrues" when the right to sue has
become vested and appellant can show that another has
wrongfully infringed upon his liberty or property. Bergin v.
Temple (1941), 111 Mont. 539, 111 P.2d 286.
Appellants state in their brief that they first became
aware of business disputes with respondents upon their
remarriage in 1970. The complaint was filed in Oregon seven
years later. Moreover, in 1971, appellants did not resist
the action brought by respondents for an accounting of the
property in dispute. Clearly, the five year period began to
run in either 1970 or 1971 and appellants are barred from
bringing this action. Appellants' argument that they did not
become aware of their cause of action until October 1978 or
1979 is without merit since they filed their action in 1977.
In addition to the doctrine of res judicata and running
of the statute of limitations, appellants' action is barred
by the equitable doctrine of 1a.ches. The doctrine of laches
was set forth at some length in Ril.ey v. Blacker (1915), 51
Mont. 364, 370, 371, 152 P. 758, 759, applied in Hynes v.
Silver Prince Mining Co. (1929), 86 Mont. 10, 281 P. 548 and
Montgomery v. Bank of Dillon (1943), 114 Mont. 395, 136 P.2d
760; and cited in Davis v. Steingruber (19571, 131 Mont. 468,
1" 0
"
311 P.2d 784 and Johnson v. Johnson (19771, 172 Mont. M I 561
"Laches, considered as a bar independent of the
statute of limitations, is a concept of equity; it
means negligence in the assertion of a right; it is
the practical application of the maxim, 'Equity
aids only the vigilant'; and it exists when there
has been an unexplained delay of such duration or
character as to render the enforcement of the
asserted right inequitable . . . 'Considerations
of public policy and the difficulty of doing
justice between the parties are sufficient to
warrant a court of equity in refusing to institute
an investigation where the lapse of time in the
assertion of the claim is such as to show
inexcusable neglect on the part of the plaintiff,
no matter how apparently just his claim may be; and
this is particularly so where the relations of the
parties have been materially altered in the
meantime.' [Citing cases.] What constitutes a
material change of condition has been the subject
of much judicial discussion and some judicial
dissension; but whatever doubt there may be as to
other circumstances, it never has been questioned,
to our knowledge, that the death of one of the
parties to the transaction is such a change."
For the above stated reasons, we affirm the judgment of
the District Court.
/ Justice
We concur:
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Chief Justice
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