No. 14612
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
VOGA HOPPER,
Plaintiff and Respondent,
-vs-
EDWIN S. HOPPER,
Defendant and Appellant.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable Jack Shanstrom, Judge presiding.
Counsel of Record:
For Appellant:
Hoyt and Lewis, Great Falls, Montana
For Respondent:
Lyman H. Bennett, 111, Bozeman, Montana
Submitted on briefs: July 5, 1979
Decided: SEF L ; 1979
Mr. J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e C o u r t .
his i s an a p p e a l from a f i n a l judgment of t h e D i s t r i c t
C o u r t o f t h e E i g h t e e n t h J u d i c i a l D i s t r i c t , d a t e d September
1 9 , 1978. The D i s t r i c t C o u r t upheld i t s p r e v i o u s d e n i a l of
a p p e l l a n t Edwin Hopper's a l t e r n a t i v e m o t i o n s t o v a c a t e and
s e t a s i d e a p r o p e r t y s e t t l e m e n t and s u p p o r t agreement i n c o r -
p o r a t e d i n t h e J u l y 1 9 , 1976 d e c r e e d i s s o l v i n g t h e m a r r i a g e
o f Edwin and Voga Hopper. This Court ordered t h e matter
s u b m i t t e d on t h e b r i e f s and d e c i d e s t h e c a s e w i t h o u t o r a l
argument.
The p a r t i e s t o t h i s a p p e a l w e r e m a r r i e d i n t h e S t a t e o f
Idaho i n 1969. I n t h e f a l l of 1975 t h e p a r t i e s , r e s i d i n g i n
Bozeman, Montana, d e c i d e d t o o b t a i n a d i s s o l u t i o n of t h e
m a r r i a g e and o r a l l y a g r e e d between t h e m s e l v e s t o a d i v i s i o n
of t h e i r property. Out o f t o t a l assets o f a v a l u e o f a p p r o x i -
m a t e l y $200,000, v i r t u a l l y a l l o f which had been c o n t r i b u t e d
t o t h e m a r r i a g e by Edwin, Voga was t o r e c e i v e $50,000 c a s h
p l u s an a u t o m o b i l e and c e r t a i n f u r n i s h i n g s from t h e house.
A t t h e t i m e Edwin had been employed f o r some 1 4 y e a r s a s t h e
e x c l u s i v e s a l e s r e p r e s e n t a t i v e f o r Tony Lama Boot Company
f o r a t e r r i t o r y encompassing s e v e r a l w e s t e r n s t a t e s , a j o b
which r e q u i r e d e x t e n s i v e t r a v e l i n g . Shortly a f t e r Christ-
m a s , Edwin l e f t Bozeman i n c o n n e c t i o n w i t h h i s b u s i n e s s , and
Voga, who was n o t employed o u t s i d e t h e f a m i l y home, con-
s u l t e d an attorney regarding the dissolution. Edwin t e s t i -
f i e d t h a t a f t e r t h i s c o n s u l t a t i o n , Voga i n c r e a s e d h e r s e t t l e -
ment demands t o $85,000 c a s h p l u s t h e o t h e r p r o p e r t y ,
S u b s e q u e n t l y , Edwin and Voga t o g e t h e r m e t w i t h h e r a t t o r n e y
a t which t i m e t h e p a r t i e s were a d v i s e d t h a t i f t h e y c o u l d
a g r e e upon a p r o p e r t y s e t t l e m e n t and a n u n c o n t e s t e d d i s s o l u -
t i o n , t h e y would s a v e on e x p e n s e s f o r a t t o r n e y f e e s . It was
d e c i d e d t h a t h e r a t t o r n e y would r e p r e s e n t b o t h p a r t i e s i n
t h e d i s s o l u t i o n proceedings.
Edwin and Voga t h e r e a f t e r n e g o t i a t e d t h e t e r m s o f a
p r o p e r t y agreement and c o n s u l t e d w i t h Edwin's f i n a n c i a l
advisor, M r . T e r r y Lynn, r e g a r d i n g t h e t a x consequences o f
t h e i r proposed s e t t l e m e n t . Their a t t o r n e y d r a f t e d a w r i t t e n
p r o p e r t y s e t t l e m e n t and s u p p o r t agreement t o r e f l e c t t h e
agreement r e a c h e d by t h e p a r t i e s . The agreement was reviewed
and s l i g h t l y m o d i f i e d by T e r r y Lynn and t h e n r e t u r n e d t o t h e
a t t o r n e y who p r e p a r e d t h e f i n a l d r a f t . Edwin s i g n e d t h i s
f i n a l d r a f t without reading it.
A p e t i t i o n f o r d i s s o l u t i o n o f m a r r i a g e was f i l e d by
Voga i n t h e D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s -
t r i c t on A p r i l 9, 1976, and a summons s e r v e d on Edwin A p r i l
1 6 , 1976. Edwin f a i l e d t o a p p e a r a t t r i a l , and h i s d e f a u l t
w a s e n t e r e d by t h e D i s t r i c t C o u r t i n a J u l y 1 9 , 1976, d e c r e e
g r a n t i n g t h e d i s s o l u t i o n and i n c o r p o r a t i n g t h e t e r m s of t h e
p r o p e r t y s e t t l e m e n t and s u p p o r t agreement. The D i s t r i c t
C o u r t made t h e f o l l o w i n g f i n d i n g of f a c t :
"IX. T h a t t h e p a r t i e s t o t h i s a c t i o n have r e a c h e d
a p r o p e r t y s e t t l e m e n t and s u p p o r t agreement and
f i l e d t h e s a m e t o be i n c o r p o r a t e d i n t h i s Decree,
and t h e same i s n o t u n c o n s c i o n a b l e . "
Under t h e t e r m s o f t h i s p r o p e r t y s e t t l e m e n t and s u p p o r t
agreement, Voga was t o r e c e i v e v a r i o u s a s s e t s of t h e mar-
riage. F u r t h e r m o r e , Edwin was o b l i g a t e d t o pay h e r t h e sum
o f $64,632 a m o r t i z e d o v e r a p e r i o d of 1 2 1 months i n monthly
i n s t a l l m e n t s of $850, w i t h i n t e r e s t a t 1 0 p e r c e n t a n n u a l l y .
H e w a s a l s o r e q u i r e d t o p r o v i d e s e c u r i t y f o r t h e payment o f
t h i s obligation.
The D i s t r i c t C o u r t awarded t h e a t t o r n e y $2500 a s r e a s o n -
a b l e a t t o r n e y f e e s and made a f u r t h e r f i n d i n g of f a c t t h a t :
"IV. The plaintiff is unemployed and is not
trained for any employment other than the keep-
ing of the records of the parties with respect
to property of the parties . . ."
Somewhat at odds with this finding is the fact that Voga
began work as a receptionist in a dentist's office at a
salary of $450 per month the day following the date of the
decree, a position she acknowledged she had obtained a short
time prior to the dissolution of marriage.
Edwin first obtained separate counsel in November 1976
after the law firm that represented the parties in their
dissolution attempted to execute on his property to collect
attorney fees awarded in the decree. This dispute was
settled out of court. Edwin regularly made the designated
monthly payments to his former spouse and nothing further
was done by either party in connection with the decree until
September 1, 1977, when Voga filed an affidavit charging
Edwin with contempt of court for failure to provide security
for payment of the sum required to be paid to her under the
property settlement agreement and decree. An order to show
cause why he should not be held in contempt was issued by
the Honorable W. W. Lessley on September 6, 1977. The
Honorable Jack D. Shanstrom assumed jurisdiction on Septem-
ber 13, 1977, pursuant to an order granting Edwin's motion
for disqualification. On November 7, 1977, Edwin filed an
answer to the order to show cause and a motion for relief
from the July 19, 1976 decree, together with an affidavit
alleging that the terms of the property settlement and
support agreement incorporated into the decree were uncon-
scionable.
Following several continuances, a hearing was held on
the order to show cause on December 9, 1977. During the
examination of Voga Hopper as an adverse witness, counsel
for appellant initiated an inquiry touching upon elements of
fraud allegedly committed upon the District Court at the
time of the dissolution proceeding. This line of question-
ing was objected to by counsel for Voga on the grounds that
no specific allegations of fraud had been previously alleged
in any of the pleadings. Following oral argument by counsel,
the District Court continued the hearing allowing Edwin to
file additional pleadings setting forth specific allegations
of fraud.
On April 12, 1978, Edwin, appellant herein, filed
alternative motions pursuant to Rule 60(b), M.R.Civ.P.
These motions requested the District Court to set aside that
portion of the decree of dissolution relating to the property
settlement and support agreement on grounds of fraud on the
court, fraud in the inducement, and change of circumstances
rendering the provisions unconscionable. Respondent's
attorney then filed a motion asking the District Court to
overrule appellant's motions for the reason that appellant's
motions were not filed within 60 days after judgment as
required by Rule 60(b), M.R.Civ.P., and for the further
reason that no hearing was held on appellant's motions
within ten days after the filing of the alternative motions,
as is required by Rule 60 (c) and Rule 59 (d), M.R.Civ.P.
Respondent's motion also requested a determination of the
issues before the court.
The District Court issued an order on July 15, 1978,
denying appellant's alternative motions. On August 4, 1978,
appellant's attorney filed a motion, supported by affidavit,
to vacate the order or judgment as there had been no hearing
on the matter. The motion to vacate was then set for a
hearing on the merits and the hearing was held on August 31,
1978. At the commencement of this hearing, counsel for
respondent contended that the issue of fraud was not properly
before the District Court because the court lacked jurisdic-
tion to hear the issue by virtue of Rule 60(b), M.R.Civ.P.
The District Court permitted the testimony, as witnesses had
been brought in from outside the area, and counsel for
respondent participated in the hearing, preserving his
jurisdictional challenge. Thereafter, on September 19,
1978, the District Court issued findings of fact and conclu-
sions of law as proposed by counsel for respondent. Edwin
Hopper appeals from these findings of fact and conclusions
of law upholding the denial of his alternative motions to
vacate the property settlement provisions of the decree of
dissolution.
The issues presented may be summarized as follows:
1. Is paragraph I1 of the "property settlement and
support agreement" a provision for the disposition of prop-
erty or a provision for the payment of maintenance and
support?
2. Did the District Court have jurisdiction to con-
sider whether fraud had been committed upon the court?
3. Was the District Court's conclusion that no fraud
had been committed upon the court supported by substantial
evidence and the law?
4. Did the District Court have jurisdiction to con-
sider whether fraud had been committed upon the appellant?
5. Did the ~istrictCourt have jurisdiction to deter-
mine the conscionability of the provisions of the property
settlement and support agreement?
The parties executed a written separation agreement
which was incorporated into the decree of dissolution.
Appellant contends that paragraph I1 of this instrument, set
forth below, is a provision for the maintenance of his
former spouse. Respondent argues that the provision contern-
plates a distribution of property. The agreement provides
in pertinent part:
"Additionally, in full and final settlement of
the Second Party's obligation to support and main-
tain the First Party, the Second Party shall pay
to the First Party or her designated beneficiary,
the sum of Sixty Four Thousand Six Hundred Thirty
Two and no/100 Dollars ($64,632.00) to be amor-
tized over a period of one hundred twenty one
(121) months, bearing interest at the rate of ten
percent (10%) per annum and payable in monthly
installments of Eight Hundred Fifty and no/100
Dollars ($850.00)." (Emphasis added.)
Appellant argues that the language employed by the
parties governs, so that the payments, as designated, are to
be made "in full and final settlement of the Second Party's
obligation to support -- maintain the First Party
and . . ."
Furthermore, appellant contends that if this language is
ambiguous, it should be construed most strongly against
respondent as the drafting party.
While we agree that the language employed is ambiguous
when read in light of the entire agreement, this language
was drafted in final form by counsel for both parties. We
agree with respondent that this language is in substance a
provision for the distribution of property, notwithstanding
the fact that it is couched in terms of support and main-
tenance. In a case decided prior to the enactment of the
Uniform Marriage -and Divorce Act in this state, the wife
gave up the right to any future support, relinquished claims
against property owned by the husband, and agreed to assume
some of the husband's liabilities as consideration for
payments of $750 a month for nine years. We held that:
"In the property settlement agreement, the pay-
ments to the wife for nine years were labeled as
'alimonyt,but, as is apparent from the agreement,
the payments were not in fact alimony per se, and
the use of the term 'alimony' was only a label."
Washington v. Washington (1973), 162 Mont. 349,
354, 512 P.2d 1300.
See also, blovius v. Movius (1974), 163 Mont. 463, 517 ~ . 2 d
Under the principles expressed in Washington, this
Court will look past mere labels to the substance of the
partiest agreement to determine whether particular provi-
sions are maintenance payments to the former spouse or part
of a property settlement. This rationale has been followed
in a recent case decided under the Uniform Marriage and
Divorce Act where the wife relinquished her right to the
family residence in consideration for payments, labeled
alimony, which were held to be part of the property settle-
ment. In re Marriage of Reilly (1978), - Mont . , 577
The present case involves a provision for the payment
of a lump sum, bearing interest, over a period of time,
payable to the wife or to her designated beneficiary. The
husband is required to provide security for payment of the
principal and the sum of the unpaid balance becomes immedi-
ately due and payable upon his death or permanent disability.
The agreement was drafted with the purpose of making the
payments qualify as periodic payments for income tax pur-
poses. The wife released all claims to any other property
of the parties. Under the foregoing circumstances, it is
clear that the paragraph in question is a provision for the
distribution of property, rather than a provision for main-
tenance or support.
Turning to the second issue, we conclude that it was
within the District Court's jurisdiction to determine whe-
ther fraud had been committed upon the court. The Uniform
Marriage and Divorce Act, section 40-4-208(1) MCA, provides
pertinent part :
"(b) ... The provisions as to property disposi-
tion may not be revoked or modified by a court,
except:
"(ii) if the court finds the existence of condi-
tions that justify the reopening of a judgment
under the laws of this state."
Rule 60(b), M.R.Civ.P., states that fraud is adequate
grounds for granting relief from a judgment or order:
"On motion and upon such terms as are just, the
court may relieve a party or his legal represen-
tative from a final judgment, order, or proceeding
for the following reasons: ...
(3) fraud (whe-
ther heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an ad-
verse party . . .
The motion shall be made within
a reasonable time, and for reasons (1), (2) and ( 3 1
when a defendant has been personally served .
. .
not more than 60 days after the judgment, order
or proceeding was entered or taken . ..
This rule
does not limit the power of a court to entertain
an independent action to relieve a party from a
judgment, order or proceeding ...
or to set
aside a judgment for fraud upon the court."
Respondent contends that the District Court lacked jurisdic-
tion to rule on appellant's motion because he failed to
comply with the 60-day time limitation set forth in Rule
60 (b), M.R.Civ. P. The last sentence of Rule 60 (b) fore-
closes any possibility that the time limitations for making
a motion under the Rule have any application where fraud has
been committed upon the court: "This rule does not limit
the power of a court . . . to set aside a judgment for fraud
upon the court. "
The law in this state is settled:
"The power of the court to set aside a judgment
on the basis of fraud upon the court is inherent
and independent of statute, and the timeliness
of proceedings to set aside a prior judgment so
obtained is not subject to the six months time
limitation in Rule 60(b), M.R.Civ.P., but must
ultimately depend upon equitable principles and
the sound discretion of the court." In re Julia
Ann Bad Yellow Hair (1973), 162 Mont. 107, 111,
509 P.2d 9, 12.
In Selway v. Burns (1967), 150 Mont. 1, 429 P.2d 640, 645, a
case involving fraud committed upon the court, this Court
stated:
"It was also argued that Mrs. Suthard's motion was
not timely. If this argument is based on the re-
quirements of Rule 60(b), it cannot be accepted
because the power invoked by the court in this
matter does not depend on statute."
The only limitation that has been placed upon the
exercise of this power is that the investigating court must
observe the usual safeguards of the adversary process by
granting notice to affected persons and by conducting a fair
hearing on the existence of the fraud. Selway v. Burns,
supra, 429 P.2d at 644. See also Pilati v. Pilati (19791,
Mont. , 592 P.2d 1374, 36 St.Rep. 619. In light
of the foregoing, we hold that the question of whether fraud
was practiced upon the court was properly before the Dis-
trict Court.
We now turn to the question of whether the District
'
Court holding was supported by substantial evidence and by
the law. The District Court reached a conclusion of law:
"IV. That no fraud was committed on the Court
during the plaintiff's presence before the Honor-
able W. W. Lessley on the 19th day of July, 1976,
...
It
This conclusion, coupled with the District Court's
holding that appellant's alternative motions were properly
denied for failure to comply with the time limitations of
Rule 60(b), M.R.Civ.P., indicates that the District Court
properly considered applicable law and that its ruling is
supported by the law. Because the District Court heard
testimony on the issue and reached the conclusion of law
quoted above, we must assume that the District Court con-
sidered this issue on the merits. Having concluded that no
fraud had been committed upon the court, the District Court
properly denied appellant's motions as being untimely under
Rule 60 (b), M.R.Civ.P.
Our standard for review has been stated as follows:
"When reviewing findings of fact and conclusions
of law of a district court, sitting without a
jury, this Court has repeatedly held such find-
ings and conclusions will not be disturbed if
supported by substantial evidence and by the law."
Arrowhead, Inc. v. Safeway, Inc. (1978),
Mont . , 587 P.2d 411, 413, 35 St.Rep. 1830,
1832.
Appellant relies largely on the wife's failure to
disclose that she had secured employment as establishing a
fraud upon the court. Respondent began employment as a
receptionist for a dentist at a salary of $450 per month on
the day after the date of the decree of dissolution, having
obtained that position some days prior to the dissolution.
Yet the decree recited that she was "unemployed and not
trained for any employment." Unfortunately, there is no
transcript of the testimony taken at the dissolution pro-
ceedings of July 19, 1976, when this alleged fraud upon the
court occurred.
This Court has held that "[flraud upon the court ...
may consist of affirmatively misrepresenting facts to the
court or of concealment of material facts by a person who is
under a legal duty to make a full disclosure to the court."
In re Julia Ann Bad Yellow Hair (1973), 162 Mont. 107, 111,
509 P.2d 9, 12, citing Selway v. Burns, supra.
The same issues were raised in a recent case where a
former spouse petitioned to set aside a decree of dissolu-
tion and property settlement on grounds of fraud. Pilati v.
Pilati (1979), Mont . , 592 P.2d 1374, 36 St.Rep.
619. ,Pilati involved a situation where the husband failed
to make a full and accurate disclosure of all the assets of
the parties to either his spouse or to the court, with the
result that the wife received a grossly inadequate property
settlement under the terms of a settlement agreement incor-
porated in the decree. We held that his nondisclosure
constituted an extrinsic fraud and a fraud upon the court so
as to justify relief. There was no intentional concealment
of material assets from the court in the present case as
there was in Pilati. Likewise, this case does not involve a
misrepresentation to the court preventing a fair submission
of the controversy, as was the case in Selway, where the
testator's executor represented to the District Court that
the testator's daughter had consented to a stipulated judg-
ment against her mother's estate when in fact the daughter
had not so consented and was not even aware of the suit.
Furthermore, the District Court had before it and incorpor-
ated into its decree a property settlement agreement that
had been reached by the parties; it was not adjudicating a
property settlement nor determining a maintenance award that
would be affected by the future employment or employability
of the parties.
The District Court could well have concluded that there
was no affirmative misrepresentation or concealment by
respondent or by counsel when he submitted the decree to the
court and that any error as occurred when the court adopted
the finding that Voga was unemployed and not trained for any
employment was inadvertent. Alternatively, the District
Court may have concluded that the wife's employment status
was not a material fact in view of the parties' property
settlement agreement and that it did not substantially
affect the merits of the case. That being so, we are unable
to say that the District Court's holding was not supported
by substantial evidence and the law.
There is no record of the dissolution proceedings of
July 19, 1976, available to assist this Court in our review
of the District Court's ruling. Furthermore, in balancing
interests this Court has recognized a public interest in the
finality of judgments. Although a different balance was
struck under the differing facts of that case, the proper
rule was stated in Selway:
". .. Any time limitations that may be involved
in this case require that a balance be struck
between the public interest in putting an end to
litigation at some point and the public interest
in keeping its judicial system free of corrup-
tion. For this reason the timeliness of the mo-
tion to vacate must ultimately depend upon equi-
table principles and placed within the sound
discretion of the court .. ."
429 P.2d at 645.
Under all of the circumstances of the present case, we are
constrained to uphold the ruling of the trial court.
The next issue is whether the District Court had juris-
diction to consider whether appellant had been defrauded
into executing the property settlement agreement which was
incorporated in the decree of dissolution.
Prior to the enactment of Rule 60(b), M.R.Civ.P., the
now repealed predecessor statute, section 93-3905 R.C.M.
1947, provided that:
". .
. [TIhe court may . ..
relieve a party or
his legal representative from a judgment, order
or other proceeding taken against him through
his mistake, inadvertence, surprise, or excus-
able neglect; provided, that application there-
for be made within a reasonable time, but in no
case exceeding six months after such judgment,
order, or proceeding was taken."
Because this predecessor to Rule 60(b), M.R.Civ.P., did not
provide for relieving from judgment fraud, this
Court in several cases arising prior to enactment of Rule
60(b) relied on the inherent power of a court to grant
relief from a judgment obtained by extrinsic fraud.
"The power of a court of equity to grant relief
from a judgment obtained by fraud is inherent;
it does not depend upon statute." Bullard v.
Zimmerman (1930), 88 Mont. 271, 277, 292 P. 730,
732.
The statutory time limitation the former statute did
not apply to fraud:
". . . a court of general jurisdiction has the
right, entirely independent of statute, to grant
relief against a judgment obtained by extrinsic
fraud, and may grant that relief either on mo-
tion in the original cause or upon a separate
equity suit, and after - period proscribed &
the
the statute . . ." Cure v. Southwick (1960),
137 Mont. 1, 349 P.2d 575, 579, citing Gillen
v. Gillen (1945), 117 Mont. 496, 159 P.2d 511.
(Emphasis added.)
This rule applied only to fraud which could be classified as
"extrinsic fraud":
"Not every fraud committed in the course of a
judicial determination will furnish ground for
such relief. The acts for which a judgment or
decree may be set aside or annulled have refer-
ence only to fraud which is extrinsic or colla-
teral to the matter tried by the court, and not
to fraud in the matter on which judgment was
rendered ..
. [Fraud] is extrinsic or collateral
within the meaning of the rule, when the effect
of it is to prevent the unsuccessful party from
having a trial or from presenting his case fully."
Bullard v. Zimmerman, 88 Mont. at 277, 292 P.
at 732, citing Clark v. Clark (1922), 64 Mont.
386, 210 P. 93, 94.
Rule 60(b), M.R.Civ.P., unlike its predecessor section
93-3905, specifically enumerates fraud as a ground for
relief from a judgment:
"On motion and upon such terms as are just, the
court may relieve a party or his legal represen-
tative from a final judgment, order, or proceeding
for the following reasons: . ..
(3) fraud (whe-
ther heretofore denominated intrinsic or extrinsic)
* . .
II
Moreover, Rule 60(b) establishes a time limitation within
which the motion must be made:
"The motion shall be made within a reasonable
time, and for reasons (I), (2) and (3) when a
defendant has been personally served .
. not .
more than 60 days after the judgment, order or
proceeding was entered or taken ..
."
This time limitation, however, does not apply to an
independent action for relief from a judgment, as distin-
guished from a motion for such relief. The last sentence of
Rule 60 (b), M.R.Civ.P., states that " [t]his rule does not
limit the power of a court to entertain an independent
action to relieve a party from a judgment. . ."
In a recent case decided under Rule 60(b), we followed
the established rule that the courts of this state have
inherent power to set aside a judgment for extrinsic fraud,
independent of statute and statutory time limitations, where
one of the parties brought an independent action for relief.
Pilati v. Pilati (1979), Mont . , 592 P.2d 1374,
36 St.Rep. 619. Appellant in the present case attempted to
raise the issue of extrinsic fraud - motion after the 60-
on
day time limitation of Rule 60tb) had expired, rather than
by an independent action for relief from the judgment. He
is barred from proceeding on motion under Rule 60(b), and
the District Court properly denied his alternative motions
in this regard.
The final issue in this case is whether or not the
District Court had jurisdiction to determine the conscion-
ability of the property settlement agreement where the court
had earlier, in the decree of dissolution, found the agree-
ment to be not unconscionable. The District Court held that
a determination of conscionability was prevented by the
doctrine of - judicata.
res We agree.
"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 litigated, as to the parties
and their privies, in all other actions in the
same or any other judicial tribunal of concurrent
jurisdiction." Meagher County Newlan Creek Water
Dist. v. Walter (1976), 169 Mont. 358, 361, 547
P.2d 850, 852.
". . . [Flour criteria exist in Montana law
which must be met before a plea of res judicata
can be sustained. These criteria are: (1) the
parties or their privies must be the same; (2)
the subject matter of the action must be the
same; (3) the issues must be the same, and must
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 is-
sues before them." Smith v. County of Mussel-
shell (1970), 155 Mont. 376, 378, 472 P.2d 878,
880.
All these criteria are satisfied in the present case.
In view of the foregoing, it is unnecessary for us to
decide whether or not appellant's motions were also untimely
for the reason that no hearing was held on the motions
within ten days after filing, as is required by Rule 60(c)
and Rule 59 (d), M.R.Civ.P.
The judgment of the District C0urt.s affirmed.
We concur:
A Chief Justice