No. 94-057
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
FARMERS PLANT AID, INC.,
a Montana corporation,
Plaintiff and Appellant,
v.
MILLICENT HUGGANS,
Defendant and Respondent.
APPEAL FROM: District Court of the Twenty-first Judicial
District, In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John E. Bohyer, Phillips & Williams, P.C.,
Missoula, Montana
For Respondent:
Michael J. Alterowitz and Larry Howell,
Connell, Beers & Alterowitz,
Missoula, Montana
; Submitted on Briefs: June 23, 1994
mid Decided: August 30, 1994
AUG301994
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Farmers Plant Aid, Inc. (FPA) filed an amended
complaint in the Twenty-first Judicial District in Ravalli County
against defendant Millicent Huggans. Counts I and II alleged
tortious interference with contract and slander: Count III alleged
tortious interference with access to FPA's mining resource located
on the Huggans-Foss ranch land. The District Court ordered partial
summary judgment in favor of Huggans on Count III and dismissed the
tortious interference with access to mining claim based on Huggans'
affirmative defense of collateral estoppel. The District Court
further dismissed Counts I and II in a separate order. FPA appeals
the District Court's dismissal of Count III. We affirm the order
of the District Court.
The issue on appeal is whether the District Court erred when
it granted partial summary judgment and dismissed plaintiff's
tortious interference with mining access claim.
FACTUAL BACKGROUND
This appeal involves a parcel of land in the Bitterroot Valley
that has been subject to a long-standing dispute between two
families: the Smiths and their successors, Farmers Plant Aid,
Inc., and the Huggans and Foss families. FPA owns the mineral
rights to mine peat from the land, and the Hugganses and Fesses own
and farm the surface. In State ex rel. Foss v. District court (1968) , 152 Mont.
73, 446 P.2d 707, this Court concluded that Sam T. Foss, as
mortgagee and sheriff's sale purchaser under foreclosure, was
entitled to possess the land subject to the right of the mortgagors
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(lessors to FPA and its predecessor, the Smith family) to extract
peat and use the surface of the land as reasonably necessary to
extract peat. Foss, 446 P.2d at 709. This Court has considered
the respective rights of these parties on two occasions since that
decision. Smithv. Foss (1978), 177 Mont. 443, 582 P.2d 329; Stateexrel.
Fossv.DishictCourt (1985), 216 Mont. 327, 701 P.2d 342.
Before filing this action, FPA filed a motion on November 8,
1989, for a temporary restraining order and an application for
order to show cause why Millicent Huggans, her mother, Alice I.
Foss, and brother, John Foss, should not be held in contempt for
violation of the District Court's October 21, 1985, order which
enjoined them from interfering with FPA's access to the peat
resource.
The District Court heard testimony in support of and in
opposition to this motion on November 29, 1989, and on March 1,
1990, and issued its order on March 9, 1990. The District Court
found John Foss to be in contempt of the court's October 21, 1985,
order because he "deliberately interfered with the access to the
peat resource on the Foss property by plowing up a road and around
the peat, by removing culverts that the Smiths had placed in the
road, and by flooding the peat resource." In the same order, the
District Court found that Huggans had failed to prevent FOSS'S
conduct, but held that "[tlhese omissions are insufficient to hold
. . . Millicent Huggans in contempt of court for the acts of John
Foss."
On August 7, 1990, FPA filed a complaint against Huggans and
alleged that she slandered FPA's product and attempted to interfere
with its contractual relationship with a buyer. FPA amended its
complaint on November 20, 1990, and added a claim for damages for
intentional interference with the access to its peat resource.
Huggans filed her answer and counterclaimed with a request for an
accounting from FPA for the amount of material it removed from the
property in its peat mining operation.
On November 19, 1992, Huggans moved to dismiss Count III on
the grounds that there was no genuine issue of material fact and
that as a matter of law the doctrine of collateral estoppel barred
relitigation of the claim. The District Court granted Huggans'
motion on June 15, 1993, and on November 5, 1993, denied FPA's
motion to reconsider. The District Court granted Huggans summary
judgment and dismissed Counts I and II on October 13, 1993. FPA
appeals only the District Court's dismissal of Count III.
STANDARD OF REVIEW
When reviewing an order granting summary judgment, this Court
applies the same standard of review applied by a district court.
H&man v.4-G’sPlumbing & Heating (Mont. 1994), 872 P.2d 318, 320, 51
St. Rep. 340, 341 (citing Emetyv.FederatedFoods (1993), 262 Mont. 83,
90, 863 P.2d 426, 431). Summary judgment is proper when no genuine
issues of material fact exist and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review the
district court's conclusions of law to determine whether they are
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correct. Holtman, 872 P.2d at 320 (citing Steer, Inc. v. Deplt of Revenue
(1990) I 245 Mont. 470, 474-75, 803 P.2d 601, 603).
On December 2, 1992, FPA, in its brief in opposition to
Huggans' motion for partial summary judgment, attached an affidavit
from FPA's counsel alleging that he received a phone call in the
late summer of 1990 from Foss. According to the affidavit, Foss
stated that Huggans hired him to "plow up her field where the
Smiths were digging peat." FPA's counsel asked Foss to put this
statement in writing, which Foss did on November 9, 1990. FPA
suggests that this information, produced after the hearing,
virtually proves Huggans' culpability and renders the District
Court's decision not to hold her in contempt tainted by perjury and
fraud. FPA further suggests that Foss's statement presents a
"genuine issue of fact" with regard to Huggans' culpability, and
therefore, precludes dismissal by summary judgment. The District
Court found this argument to be without merit:
Newly discovered evidence has never been sufficient to
require relitigation unless it can be established that
the evidence could not have been discovered with due
diligence. Rule 60(b)(2), M.R.Civ.Proc. The Court notes
that three months transpired between the time of the
November 29, 1989, contempt hearing and the March 1,
1990, continuation ofthathearing allowing adequate time
for [FPA] to discover the relevant facts regarding
Huggans' participation in the . . . plowing of the road.
We agree that the statement of Foss, even if presented in
proper affidavit form, at most would have constituted new evidence
to be considered by the District Court pursuant to Rule 60(b)(2).
We conclude that the District Court properly ruled on its
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admissibility. Foss appeared prose and was available to testify at
the contempt hearings, but FPA did not call him as a witness.
Huggans testified that she simply hired Foss to plow her farm,
which did not violate the District Court's previous ruling, and
that she was not aware of his efforts to interfere with FPA's
access. The District Court, after listening to the evidence
presented by FPA in the contempt proceedings, found a failure of
proof that Huggans had actively interfered with FPA's peat mining
operation.
Other than FOSS'S statement, FPA produced no evidence to
contradict the District Court's previous finding. We conclude that
the District Court correctly proceeded to consideration of the
applicability of collateral estoppel.
We apply the following three-part test to decide when
collateral estoppel will act as a bar to litigation:
1. The identical issue raised has been previously
decided in a prior adjudication;
2. A final judgment on the merits was issued in
the prior adjudication: and
3. The party against whom the plea is now asserted
was a party or in privity with a party to the prior
adjudication.
Boydv.FirstInterstateBartk (1992), 253 Mont. 214, 218, 833 p.zd 149, 151
(citing In re Marriage of Stout (1985) , 216 Mont. 342, 349, 701 P.2d 729,
733): Smithv. Schweigert (1990), 241 Mont. 54, 58, 785 P.2d 195, 197.
See also Brault v. Smith (1984), 209 Mont. 21, 679 P.2d 236; Gesselv.Jones
(1967), 149 Mont. 418, 427 P.2d 295.
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FPA asserts that only two of three elements necessary to apply
the doctrine are present, and that as a matter of law, its claim is
not susceptible to dismissal.
FPA contends that the "identical issue" element of collateral
estoppel is not met in this case because it did not have an
opportunity to fully litigate Huggans' tort liability for damages
in the previous contempt proceeding. However, FPA confuses the
distinction between issue preclusion by collateral estoppel and res
judicata . We have previously held that:
"Collateral estoppel" . . . may be considered as a branch
of the doctrine of res judicata but is distinguishable
from the bar to litigation normally called res judicata.
The distinction is that res judicata bars the same
parties from relitigating the same cause of action while
collateral estoppel bars the same parties from
relitigating issues which were decided with respect to a
different cause of action. The bar that arises from
collateral estoppel extends to all questions essential to
the judgment and actually determined by prior valid
judgment.
Boyd, 833 P.2d at 151 (quoting Gessell, 149 Mont. at 421, 427 P.2d at
296) (citations omitted).
The issue considered by the District Court and which we review
is not whether FPA had an opportunity to litigate Huggans'
liability to it for civil damages, the issue is whether a fact
issue, which is essential to FPA's recovery in this action, has
already been adversely resolved in a prior action.
The fact that the controlling issue in this claim for damages
had already been litigated and resolved in the previous resolution
of FPA's motion to have Huggans held in contempt, is best
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illustrated by the District Court's thoughtful and well-reasoned
order dated November 4, 1993, in which it denied FPA's motion for
reconsideration. The District Court correctly pointed out that:
In order to determine whether the first prong
requiring identity of issues has been met, these issues
must be compared to the relevant issues which were
presented between Farmers and Huggans before Judge McLean
in the contempt proceedings in DV-84-355. The relevant
issues as stated by Farmers in the contempt proceedings
were as follows:
. . . [Farmers] request the court to issue an order
to show cause ordering the plaintiffs Alice Foss,
Millicent Huggans, and her [sic] John Foss to
appear and show cause why they should not be held
in contempt for plowing the road and interfering
with [Fanners'] access to the peat harvesting area.
Fanners' Motion for Temporary Restraining Order and
Application for Order to Show Cause filed November 8,
1989, in Cause No. DV-84-355, p. l-2.
Farmers contended that John Foss had interfered with
its access to the peat resource by "constructing ditches
and strips in front of the peat harvest area"; by
"plowing the road below the gate to the meadow and
digging up culverts"; by "plowing strips around the
meadow to destroy the road"; and by "constructing dikes
around the peat harvesting area, apparently in
anticipation of flooding the peat resource." Fanners'
Motion for Temporary Restraining Order and Application
for Order to Show Cause, p. 3-4. Farmers further alleged
that John Foss, Alice Foss, and Huggans had "already
flooded the peat harvesting area" and that Farmers Aid
had "already suffered significant damage by interference
of the Fosses with access to the peat resources because
of time lost in harvesting the peat and rendering the
road access unusable. Fanners' Motion for Temporary
Restraining Order and Application for Order to Show
Cause, p. 4.
The District Court also pointed out that the factual
allegations which formed the basis for Count III of Farmers'
amended complaint in this case were as follows:
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11. [Huggans] has repeatedly interfered with,
obstructed and denied Farmers Plant Aid access to the
peat resource. In the fall of 1989 [Huggans] hired her
brother John Foss to destroy the access road to the peat
resource by plowing it and removing culverts therefrom.
In addition, John Foss constructed a dike around the peat
mining area and flooded the peat with water to prevent
Farmers Plant Aid from removing peat from the property.
All of these actions took place at the direction and with
the approval of [Huggans].
12. [Huggans'] actions in hiring John Foss to
destroy the access road and otherwise interfering with
obstructing and denying Farmers Plant Aid access to the
peat resource were done maliciously, wantonly, recklessly
and with intent to harm Farmers Plant Aid.
Based on these allegations, the District Court then concluded
that:
In comparing the above cited excerpts from Fanners'
amended complaint in this case to excerpts from Farmers'
motion for temporary restraining order and application
for order to show cause in Cause No. DV-84-355, it
becomes apparent that, in order for Farmers to prevail
against Huggans in both cases, Farmers must establish
facts proving Farmers' access to the peat resource was
wrongfully interfered with and that the wrongful
interference was due to the acts of Huggans personally,
or that Huggans was legally accountable for the wrongful
acts of others.
However, the District Court correctly observed that that issue
was resolved in favor of Huggans and against FPA when the District
Judge in the contempt proceeding found that:
The evidence also shows that Millicent Huggans and
Alice I. Foss did nothing to prevent John Foss from
violating the Court's order or to report the violation of
this Court's order to proper authorities. These
omissions are insufficient to hold Alice I. Foss and
Millicent Huggans in contempt of court for the acts of
John Foss.
Based on this order, which was reduced to final judgment, the
District Court in this case concluded that:
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The above cited portions of the pleadings and the
court orders in this case and in DV-84-355 support the
conclusion reached by this Court in its June 15, 1993,
memorandum and partial summary judgment that the factual
issues are identical regarding whether Huggans could be
held legally accountable for willful interference with
Farmers' access.
We agree. Count III of FPA's amended complaint alleges a
tortious claim which depends for its success on a factual finding
that in 1989 Huggans intentionally interfered with its peat mining
operation by destroying access to the area where peat was being
mined and by flooding the area. In the previous contempt
proceedings, which were also initiated by FPA, and where FPA had an
opportunity to present evidence, the District court, after
listening to the evidence, found an absence of proof that Huggans
had intentionally interfered with FPA's mining rights. Therefore,
we conclude that the essential factual issue upon which FPA's claim
in Count III of its amended complaint depends has been previously
litigated and resolved in favor of defendant Millicent Huggans and
FPA is barred by the doctrine of collateral estoppel from
relitigating that issue in this case.
FPA argues that a different result is dictated by our decision
in Andersonv.State (1991), 250 Mont. 18, 817 P.2d 699. In that case,
a Montana Highway Patrol Officer seized the defendant's driver's
license pursuant to § 61-8-402, MCA, after concluding that he had
refused to take a breathalyzer test. After district court review
of the seizure pursuant to § 61-8-403, MCA, the district court
found he had not refused to take a breathalyzer and ordered that
his license be returned to him. He then filed a claim against the
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State claiming damages based on the wrongful seizure of his
license. He moved for summary judgment in that proceeding based on
collateral estoppel. His argument was that based on the District
Court's previous finding that he had not refused to take a
breathalyzer, and therefore, that his license had been incorrectly
seized, he was entitled to judgment on the issue of liability in
the civil lawsuit. His motion was denied and his case was
submitted to a jury on the theory of negligence. The jury found
that the State was not negligent in originally seizing Anderson's
license, but was negligent in failing to return it when ordered to
do so. However, they also found that that negligence was not the
proximate cause of injuries to Anderson.
In Anderson, we concluded that the prior finding that Anderson
had not refused to take a breathalyzer test, and therefore, that
his license should not have been seized, did not equate to a
finding that the State was negligent when it seized it. Therefore,
we concluded that the same factual issue was not being litigated in
two subsequent proceedings and that the doctrine of collateral
estoppel did not require judgment for Anderson as a matter of law
in his claim for damages.
The facts and our holding in Anderson are distinguishable from
the facts and our holding in this case. In Anderson, it was
possible for a jury to find that even though the plaintiff had not
refused to take a breathalyzer, the arresting highway patrolman was
not negligent when he interpreted his conduct as a refusal. In
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this case, the finding in the previous contempt proceeding that
Huggans had not actively interfered with FPA's mining rights, does
eliminate any factual basis for FPA's cause of action for
intentional interference with those rights.
Contrary to FPA's argument on appeal, Anderson does not stand
for the proposition that because the remedy sought in two separate
proceedings is different, factual issues common to those
proceedings can be relitigated. We find the following rule of law
persuasive and the basis for our decision:
The rule precluding the relitigation of facts or
questions formerly in issue applies . . . even though the
subsequent action is a different form of proceedings, is
upon a different cause of action, and involves a
different subject matter, claim, or demand than the
earlier action. In such cases it is likewise immaterial
that the two actions have a different scope . . . or are
instituted for different purposes, and seek different
relief.
46 Am. Jur. 2d Judgments 5 415 (1969).
Since FPA cannot prove a cause of action without relitigation
of factual issues previously resolved, we affirm the order of the
District Court granting summary judgment to defendant Millicent
Huggans and dismissing with prejudice Count III of FPA's amended
complaint.
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W e concur: