No. 85-334
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
O'NEAL, BOOTH and WILKES, P.A.,
Plaintiff and Respondent,
-VS-
MARY ANN ANDREWS ,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
J n and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Nye & Meyer, P.C.; Jerrold L. Nye, Billings, Montana
For Respondent:
English & Lee; Bruce E. Lee, Billings, Montana
Submitted on Briefs: Nov. 29, 1385
Decided: January 21, 1986
Filed: JAN 2 1 1986
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Mary Ann Andrews appeals the March 11, 1985, order of
the Thirteenth Judicial District Court of Montana, granting
summary judgment to O'Neal, Booth & Wilkes, P.A., on all
issues raised by Andrews in a counterclaim. We affirm.
While visiting Florida in December of 1983, Andrews, a
Montana resident, expressed an interest in purchasing a piece
of land near Fort Lauderdale, Florida. The real estate agent
suggested Andrews obtain the law firm of O'Neal., Booth &
Wilkes (respondent) to represent her at closing. Respondent
agreed to handle the closing for $750 in attorney's fees and
$300 for title insurance. After leaving an earnest money
deposit of $1,000 with respondent, Andrews returned to
Montana.
In mid-January, 1984, respondent notified Andrews the
seller was ready to close. Andrews flew to Florida, only to
have the seller refuse to close the transaction. Despite the
failure of the proposed transaction, respondent requested its
fees and title insurance costs. Andrews' offer to settle for
$600 was refused.
Thereafter, respondent brought suit against Andrews in
Broward County Court, Florida, seeking $2,000. Following a
trial at which Andrews was represented by counsel,
respondents were award.ed $1,500, plus costs and interest for
a total of $1,729.63. Respondents executed on and received
the $1,000 real estate deposit.
On October 10, 1984, respondent filed a complaint in the
Thirteenth Judicial District Court of Montana, seeking the
remaining amount due and owing, interest, attorney's fees and
costs. Andrews filed a counterclaim alleging, among other
things, breach of the fiduciary duty owed her, constructive
fraud, a.ctual fraud, coereion, failure to settle the fee
claim in good faith and malicious suing of Andrews in both
the Florida and the Montana courts.
Andrews submitted extensive discovery to respondent,
which went unanswered. Andrews then filed a motion to
compel. Prior to any action on Andrews' motion, respondent
filed motions for summary judgment on its complaint and
Andrews' counterclaim. A hearing was held January 1.0, 1985,
and respondent's motions were granted.
Andrews appeals, raising the following issues:
1. Can summary judgment be granted to a party who has
failed to respond to discovery necessary to determine
material facts of the case?
2. Was the principle of res judicata properly applied
in this case?
Summary judgment may not be granted to a party who has
failed to respond to discovery necessary to determine
materia.1 facts of a case. Rule 56 (c), M.R.Civ.P.
This Court has consistently held that the party
moving for summary judgment has the burden of
showing the complete absence of any genuine issue
as to all facts-which - deemed material in light
- are
of those substantive principles which entized -
- him
to - judqrnent - - matter - - (emphasis added)
- a as a of law
(citations omitted).
Farmers Insurance Exchange v. Janzer (Mont. 1985) , 697 P. 2d
460, 461, 42 St.Rep. 337, 339. If the unanswered discovery
pertains to a material issue, summary judgment may not be
granted.
However, in this case the trial judge found, and we
agree, that the unanswered discovery does not pertain to an
issue properly before the court. The discovery relates
primarily to Andrews' counterclaim against respondent. As
the trial judge held, that counterclaim is barred by the
doctrine of res judicata. Therefore, the unanswered
discovery does not pertain to any material issue and summary
judgment is not barred.
Respondent initially sued for its attorney's fees in a
Florida county court. Andrews' counterclaim involves whether
the respondent earned those fees and whether it engaged in
bad faith in its attempts to collect those fees. Since the
counterclaim arises out of the same transaction as the
underlying claim, it is a compulsory counterclaim under
Florida's and Montana's rules of civil procedure. See Rule
13 (a), M.R.Civ.P. and Rule 1.170 (a), F1.R.Civ.P. Generally,
compulsory counterclaims must be filed in the original action
or be forever lost. Rule 13, M.R.Civ.P. and Rule 1.170,
F1.R.Civ.P. Friedrichsen v. Cobb (1929), 84 Mont. 238, 250,
275 P. 267, 271.
We find no merit to Andrews' argument that the Florida
court lacked jurisdiction over her counterclaim. Pursuant to
Florida's rules of civil procedure, a counterclaim may seek
relief which exceeds that in the original pleading. Rule
1.170 (c), F1.R.Civ.P. If the counterclaim exceeds the
jurisdiction of the court in which the action is pending, the
action may be removed to a court with proper jurisdiction.
Rule 1.170 (j), F1.R. Civ. P. Therefore, Andrews' attorney in
the Florida, action should have pled this compulsory
counterclaim and had the entire a-ction transferred to a court
of proper jurisdiction.
Since Andrews failed to raise the issue at the proper
time, the doctrine of res judicata bars her from raising it
now. "Once there has been full opportunity to present an
issue for judicial decision in a given proceeding ... the
determination of the court in that proceeding must be
accorded finality as to all issues raised or which fairly
could have been raised, else judgments might be attacked
piecemeal and without end." Wellman v. Wellman (1982), 198
Mont. 42, 45-46, 643 P.2d 573, 575, quoting Royal Coachman
Color Guard v. Marine Trading & rans sport at ion (Me. 1979),
398 A.2d 382, 384. The "full. faith and credit" clause of the
United States Constitution, art. IV, 1, extends the
doctrine of res judicata to judgments of other states.
Affirmed.
We concur: