No. 90-160
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
SOUTH GALLATIN LAND CORPORATION,
a Montana Corporation,
Plaintiff and Respondent,
GERALD P. YETTER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen L. McAlear, Bozeman, Montana
For Respondent:
J. Robert Planalp; Landoe, Brown, Planalp & Kommers,
Bozeman, Montana
Submitted on Briefs: October 11, 1990
Decided: November 15, 1990
Filed:
Clerk
. I
Justice John Conway Harrison delivered the Opinion of the Court.
In 1984 South Gallatin Land Corporation petitioned the
Eighteenth Judicial District Court, Gallatin County, for a
declaratory judgment to close a real estate contract transaction.
The court bifurcated the counterclaims of defendant, Gerald P.
Yetter, from the declaratory judgment action. The parties
stipulated to a compromise, reviewed by the court, which entered
judgment January 6, 1986, in favor of South Gallatin. Yetter
appealed a subsequent order of the District Court, and this Court
dismissed his appeal on April 23, 1987. Yetter filed further
motions which were dismissed for lack of jurisdiction. On December
19, 1989, the ~istrictCourt, because of lack of jurisdiction,
dismissed defendant's motions to allow additional counterclaims and
to compel discovery. From this order, Yetter appeals. We affirm.
The parties present the following issues:
1. Can bifurcated counterclaims be disposed of without a
hearing?
2. Did the District Court err in denying permission to file
a supplemental counterclaim on the ground that the court lacked
jurisdiction?
3. Should this appeal be dismissed because the appeal was not
timely filed?
South Gallatin Land Corporation's predecessor in interest,
Randolph S. White, agreed to purchase real estate from Gerald P.
Yetter, as evidenced by an Agreement for Sale and Purchase of Real
Property signed June 30, 1982. After White's interest was assigned
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to South Gallatin Land Corporation, Yetter refused to accept
payment and tried to back out of the transaction. South alla at in
petitioned the District Court for a declaratory judgment clarifying
the rights of the parties.
In his answer to South Gallatin's petition, Yetter
counterclaimed for damages, alleging claims which he characterized
as Ifbad faith." South Gallatin moved to bifurcate the bad faith
claims on the basis that "a decision in favor of the Plaintiff
would terminate any right the Defendant had to the counterclaim he
alleges against this Plaintiff.'' During a December 24, 1984,
hearing, the court granted the motion to bifurcate the
counterclaims.
After a two-day hearing in November 1985, the parties agreed
in writing to abide by the Agreement for Sale, with certain changes
stipulated to by the parties. The court found that South Gallatin
had not breached the Agreement for Sale and was not in default in
performance of the contract. The court stated that it had examined
the stipulation between the parties and ordered that portions of
the stipulation constitute an amendment to the contract.
Yetter still refused to complete the closing, and on August
19, 1986, the District Court ordered the public administrator to
sign the necessary deeds and other papers. The court further
ordered that "neither interest nor time for computation of annual
payments shall commence unless the Defendant acknowledges and
receives the balance of the purchase price."
On September 4, 1986, Yetter appealed that order and "from the
previous Orders entered in the case which refused to dismiss the
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case or to require the Plaintiff to tender or pay deposit in court,
the balance of the down payment and annual payments and interest
in the contract and, from the Order denying Summary Judgment to the
Defendant." This Court dismissed Yetter's appeal on the ground
that since the order from which Yetter appealed had been performed,
a controversy no longer existed.
On October 13, 1987, Yetter moved for substitution of another
judge in the case. Although Judge Gary found the motion to be
"untimely and improperly made,'@ he elected to recuse himself. On
November 15, 1988, Yetter moved for payment of real estate taxes
and delinquent payments. South Gallatin asserted that the
corporation was complying with the court's August 19, 1986, order
because Yetter refused to acknowledge receipt of the balance of the
down payment. The District Court dismissed Yetter's motions on the
basis that the court lacked jurisdiction.
Yetter then moved to amend the counterclaims originally filed
in the action and to compel discovery. Two orders were entered
denying these last motions, one on December 19, 1989, and one on
January 18, 1990. Both orders denied the motions on the same
ground: the District Court's lack of jurisdiction since the
litigation was effectively terminated by this Court's dismissal of
Yetter's first appeal. From the court's denial of the motion to
amend counterclaims, Yetter appeals.
I
Can bifurcated counterclaims be disposed of without a hearing?
Separate or bifurcated trials can be ordered by a district
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court pursuant to Rule 42(b), M.R.Civ.P.:
The court in furtherance of convenience or to
avoid prejudice may order a separate trial of
any claim, cross-claim, counterclaim, or
third-party claim, or of any separate issue or
of any number of claims, cross-claims,
counterclaims, third-party claims, or issues.
Rule 42(b) is essentially the same as Rule 42(b) of the Federal
Rules of Civil Procedure, except the federal rule provides that
separate trials shall always preserve I1inviolatethe right of trial
by jury as declared by the Seventh Amendment to the Constitution
or as given by a statute of the United state^.^^ In 1966 the
federal rule was amended by adding a condition or ground for a
grant of separate trials: "when separate trials will be conducive
to expedition and economy.I1 F.R.Civ.P., 42 (b); 9 C. Wright & A.
Miller, Federal Practice and Procedure 5 2381 (1971). However, no
difference in result exists between the federal rule and its
Mont counterpart when an order for separate trial
considered. State ex rel. Fitzgerald v. District Court (1985), 217
Mont. 106, 116, 703 P.2d 148, 155.
Yetter argues that his counterclaims, which were bifurcated
and reserved for trial by jury, were never addressed by the
district court. Often the reason for separate trials pursuant to
Rule 42(b) is that one issue may be dispositive of other claims in
the case, as noted by Wright & Miller in their discussion of Rule
42 (b), F.R.Civ.P. :
If a single issue could be dispositive of the
case, and resolution of it might make it
unnecessary to try the other issues, separate
trial of that issue may be desirable to save
the time of the court and reduce the expenses
of the parties.
9 C. Wright & A. Miller, supra 5 2388, at 280. In this case, the
parties entered into a compromise agreement regarding the contract,
and the court, after reviewing the stipulation, entered final
judgment. The stipulation Pursuant to Judgment provides:
That upon payment as decreed then the action
shall be dismissed and the parties will be
governed by this stipulation and decree and by
the contract where it has not been modified
and that contract is hereby confirmed and
satisfied.
A compromise agreement, when the basis for a final judgment, bars
all preexisting claims and causes of action. Robinson v. First
Security Bank of Big Timber (1986), 224 Mont. 138, 141, 728 P.2d
428, 430. By signing the stipulation, Yetter waived any further
claims of breach of contract occurring prior to judgment, including
bad faith claims or breach of the implied covenant of good faith
and fair dealing. Thus, the settlement of the declaratory action
was dispositive of Yetterts counterclaims, and a hearing was
unnecessary.
I1
Did the District Court err in denying permission to file a
supplemental counterclaim on the ground that the court lacked
jurisdiction?
The Stipulation Pursuant to Judgment was signed December 31,
1985, and final judgment was entered January 6, 1986. Yetterls
appeal of the District Courtts post-judgment order to the public
administrator to complete the closing of the real estate contract
was dismissed by this Court April 23, 1987. Yetter filed the
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motion to amend his counterclaims on June 28, 1989. Yetter may
not, two years after this Court's dismissal of his appeal and more
than three years after entry of final judgment, attempt to revive
the action by amending his counterclaims.
A dismissal of an appeal is made with prejudice:
The dismissal of an appeal is in effect an
affirmance of the judgment or order appealed
from, unless the dismissal is expressly made
without prejudice to another appeal.
Rule 12, M.R.App.P. Where an appellate court has unqualifiedly
affirmed a judgment of the trial court, no further or successive
appeals can be allowed. The appellate court's decision settles the
law and must be applied in all subsequent stages of the case, as
well as being res judicata in other actions as to each matter
adjudicated. Gray v. Bohart (1957), 131 Mont. 522, 524, 312 P.2d
529, 530-31. This Court's dismissal of Yetter's appeal ended the
litigation.
Even if this Court's dismissal of Yetterls first appeal is
characterized as ruling solely on the August 19, 1986, order of
the District Court, the time for appeal of the final judgment or
other orders in this action has long since passed. We find that
the District Court did not err in dismissing Yetterts motion for
lack of jurisdiction.
Should this appeal be dismissed because the appeal was not
timely filed?
The District Court entered two orders denying Yetter's motion.
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Appeal from the first order would be untimely. However, we need
not decide this issue since we affirm the District Court's
dismissal of the motions for lack of jurisdiction.
IV
In sum, the numerous motions which Yetterls counsel has made
in district court after judgment had been entered were improper and
unnecessary, and this appeal of the latest dismissal entirely
without merit and contrary to established principles of legal
procedure. Such actions constitute an abuse of the judicial
system. Appellant is attempting to re-litigate an issue to which
he twice agreed, once when he entered into the Agreement for Sale,
and again when he signed the stipulation Pursuant to Judgment.
This suit was initiated six years ago. As we have previously
stated, "It is important for the sake of the litigants and for the
judicial system that litigation will at some time be finally
ended." Lussy v. Dye (1985), 215 Mont. 90, 93, 695 P.2d 465, 466.
When an appeal is taken without substantial or reasonable
grounds, we conclude that sanctions are appropriate. Searight v.
Cimino (1989), 238 Mont. 218, 223, 777 P.2d 335. Pursuant to Rule
32, M.R.App.P., we therefore impose damages on counsel for
appellant in the amount of $500 to be paid to respondent.
Affirmed.
We concur: A