Wellman v. Wellman

                                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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