No. 88-419
IN THE SCJPREME COURT OF THE STATE OF MONTANA
1989
GEORGE ORLANDO, as Personal Representative
of the Estate of Frank A. Donnes, Deceased,
Plaintiff and Respondent,
-vs-
LEE PREWETT and BARBARA PREWETT, Husband and
Wife, and L.R. BRETZ,
Defendants and Appellants.
L.R. BRETZ,
Plaintiff and Appellant,
-17s-
GEORGE ORLANDO, as Personal Representative
of the Estate of Frank A. Donnes, Deceased,
Defendant and Respondent.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Treasure
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. J. Carstensen, Billings, Montana
For Respondent :
R. Russell Plath; Kelly & Halverson, P.C., Sheehy,
Finn and Plath, Billings, Montana
FILED Submitted on Briefs:
Decided:
Jan. 12, 1989
March 30, 1989
Filed: cdsm;fL
CLERK OF SUPREMECOURT
STATE OF FulClr iAialA { I .
. &
. ;.-j
Mr. Justice Wil-liam E. Hunt, Sr., delivered the Opinion of
the Court.
L. R. Rretz appeals from an order of the District Court
of the Sixteenth Judicial District, Treasure County, grantinq
summary judgment to George Orlando, Personal Representative
of the estate of Frank A. Donnes (Donnes Estate), and denying
Bretz's motion to vacate and set aside a partial summary
judgment previously awarded to the Donnes Estate. We affirm.
The following issues are raised on appeal:
1. Does the doctrine of res judicata render a
mechanic's lien null and void when the lien was filed against
real property that was the subject of a prior quiet title
action against the same parties who filed the lien?
2. May a district court grant summary iudgment when the
non-moving partv has failed to file a brief?
Frank A. Donnes was murdered in the fall of 1982. On
November 16, 1982, George Orlando filed the Last Will and
Testament of the deceased and a petition for probate with the
Treasure County Clerk of Court. The will named Donnes' two
sisters, Helen Carbone and Mabel Orlando, as the sole
devisees of the entire estate, which included a 5,000-acre
ranch in Treasure County.
On Januarv 8, 1983, Donnes' niece and her husband,
Barbara and Lee Prewett, filed two creditors' claims against
the Estate. The first claim alleged that the Prewetts had
entered into an oral agreement with Donnes, in which Donnes
agreed to create a will or establish a grantor trust giving
the Prewetts one-half of his ranch and the option to purchase
the other half from his estate. The second creditors' claim
alleged that Donnes had orally agreed to sell livestock and
other personal property to the Prewetts for $12,000 but that
title to the property had not passed because the Prewetts
owed a remaining balance of $10,515.
On January 19, 1983, the District Court formally
admitted the will into probate and appointed George Orlando
as Personal Representative of the Donnes Estate. The
Personal Representative filed notice of disallowance of the
creditors' claims. He then filed a complaint against the
Prewetts, seeking a judgment that the Donnes Estate was
entitled to quiet and peaceful possession of the Frank Donnes
Ranch and the personal property upon the ranch and a
permanent injunction preventing the Prewetts from asserting
any adverse claim against the Estate's title and ownership of
Donnes' real and personal property. In response, the
Prewetts counterclaimed, requesting specific performance of
the two oral contracts alleged in the creditors' claims.
Later, the Personal Representative amended the complaint to
include an additional cause of action against the Prewetts
for an accounting. Prior to trial, the District Court
bifurcated the causes of action. On November 7, 1983, a
bench trial proceeded only upon the Estate's quiet title
actions and the Prewetts' counterclaims for specific
performance of the oral agreements.
On June 4, 1984, the District Court ruled that the
Donnes Estate should take nothing under the quiet title
actions, and that the Prewetts were entitled to specific
performance of both oral agreements. The Estate appealed the
decision to this Court. In Orlando v. Prewett (1985), 218
Mont. 5, 705 P.2d 593 (Orlando -I), we reversed the District
Court, holding that the oral agreement for the transfer of
the Donnes Ranch was an unenforceable contract to make a will
and that the Donnes Estate was entitled to a judgment
quieting title in the ranch. We subsequently issued an order
directing the Personal Representative to take immediate
possession of the entire Donnes Estate.
On January 6, 1986, after we issued Orlando - theI,
Prewetts filed a mechanic's lien against the Donnes Ranch,
claiming that they had provided labor from 1981 through 1984
that enhanced the ranch's value by $376,474.22. On February
6, 1986, the Prewetts assigned their rights under the
mechanic's lien to L. R. Bretz for $1,000.
On July 15, 1986, Bretz filed a complaint against the
Donnes Estate, seeking foreclosure of the mechanic's lien.
The Estate's answer to the complaint alleged several
affirmative defenses, including res judicata.
On July 16, 1986, the District Court granted the
Personal Representative's motion to amend the complaint
filed against the Prewetts in January, 1983, adding L. R.
Bretz as a named defendant and seeking a judgment that the
mechanic's lien was null and void. The Personal
Representative also sought an order quieting title in the
ranch to the Donnes Estate and enjoining the Prewetts and
Bretz from asserting any adverse claim against the real and
personal property in the estate.
On November 28, 1986, the Donnes Estate filed a motion
for summary judgment on the mechanic's lien, asking for a
judgment that the mechanic's lien was null and void. At the
same time, the Estate filed a brief in support of summary
judgment and a notice of hearing on the motion, which set a
hearing date of January 2, 1987. On December 31, 1986, two
days before the hearing, Richard J. Carstensen filed a notice
of attorney of record for defendant Bretz and a motion for
additional time to respond to the summary judgment.
The hearing was held as planned on January 2, 1987, with
neither Bretz nor Carstensen appearing. At the hearing, the
Donnes Estate objected to Bretz's motion for additional time
and requested that summary judgment be entered. On Januarv
8, 1987, the District Court granted the Estate's motion for
summary judgment, denied Bretz's motion for additional time,
and issued judgment quieting title.
On January 27, 1987, Bretz filed a motion to vacate the
summary judgment. On the same date, the Estate filed a
motion for summary judgment on the complaint filed by Bretz.
The District Court consolidated the two actions and held a
hearing on the motions on March 6, 1987.
Thereafter, the District Court issued findings of fact,
conclusions of law, and an order granting the Estate's motion
for summary judgment and denying Bretz's motion to vacate the
previous summary judgment. From this order, Bretz appeals.
The District Court concluded that res judicata barred
the enforcement of the mechanic's lien. Bretz contests this
conclusion, arguing that the previous litigation between the
Prewetts and the Donnes Estate as well as our subsequent
decision in Orlando -- adjudicated only the question of
I
enforceability of the oral agreements entered into between
Frank Donnes and the Prewetts. Bretz contends that the
mechanic's lien cannot possibly be barred by res judicata
because the lien itself was never considered by the District
Court at trial or reviewed by the Supreme Court in Orlando L.
The doctrine of res judicata is grounded in the idea
that litigation must at some point come to an end. Thus, a
matter fully adjudicated is said to be res judicata and
cannot be relitigated by a party who has already had the
opportunity to present and plead his case. First Bank v.
District Court (Mont. 1987), 737 P.2d 1132, 1134, 44 St.Rep.
861, 864. A judgment is "binding and conclusive between all
the parties to the suit and their privies and successors in
interest, as to all matters adjudicated therein and as to all
issues which could have been properly raised irrespective of
whether the particular matter was in fact litigated." Kramer
v. Deer Lodge Farms Co. (1944), 116 Mont. 152, 156, 151 P.2d
483, 484.
In January, 1983, the Donnes Estate instituted a quiet
title action in which it claimed that the Prewetts and their
successors had "no right, title, estate, lien or interest" in
the real or personal property of Frank Donnes. The Estate's
pleadings put directly in issue all adverse claims the
Prewetts had against the Donnes Ranch. The Prewetts were
therefore required by Rule 13(a), M.R.Civ.P., governing
compulsory counterclaims, to assert all claims they may have
had against the Donnes property. Any counterclaims that were
omitted from the action are barred by res iudicata from being
raised in subsequent litigation. Taggart v. Rutledge
(D.Mont. 1-987), 657 F.Supp. 1420, 1431.
The mechanic's lien in question is a claim against the
Donnes Ranch and is therefore precisely the type of
counterclaim the Prewetts were required to raise in the
previous adjudication. By failing to pursue the mechanic ' s
lien prior to the conclusion of the quiet title action, the
Prewetts forever lost the opportunity to litigate its merits;
res judicata precludes them from raising it now.
Bretz argues that because the District Court bifurcated
the issues and proceeded to trial only on the quiet title
actions of the Estate and the specific performance claims of
the Prewetts, the action remains open to further litigation
on the mechanic's lien.. This is not so. The Prewetts had
the opportunity to litigate all claims against the Donnes
Ranch in the trial held on the quiet title and specific
performance actions. They are not entitled to another chance
to litigate issues that should have been put before the
District Court previously merely because a wholly independent
action for an accounting is still pending.
Res judicata applies to both final judgments and orders
that are intended to be final in nature. Lien v. Murphy
Corp. (1982), 201 Mont. 488, 493, 565 P.2d 804, 806. Because
our opinion in Orlando - finally decided the quiet title
I
action, any additional claims the Prewetts or their
successors may have against the Frank Donnes Ranch are barred
by res judicata. Therefore, the mechanic's lien filed after
Orlando - is null and void.
I Bretz, as the assignee of the
claim, is precluded by res judicata from foreclosing upon it.
Next, Bretz argues that a summary judgment cannot be
granted for a party's failure to file a brief. We need not
consider this question, however, as any error the District
Court may have committed in granting the Donnes Estate's
motion for summary judgment on January 8, 1987, for the
reason that Bretz had failed to file a brief was rectified
when, on March 6, 1987, the court considered both Bretz's
motion to vacate the summary judgment and the Estate's motion
for summary judgment on Rretz's complaint. The March 6,
1987, hearing gave Bretz an opportunity to present any
genuine issues of material fact. He failed to do so.
Summary judgment was proper.
We affirm the District Court. ,