No. 90-471
IN THE SUPREME COURT OF THE STATE OF MONTANA
w 1991
TOM HIGHAM, d/b/a RED LODGE
GARBAGE SERVICE,
Plaintiff and Appellant,
v.
CITY OF RED LODGE,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
Honorable Maurice R. Colberg, Jr., Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Tom Higham, Pro Se, Kalispell, Montana
For Respondent:
Gary R. Thomas, City Attorney, Red Lodge, Montana
Rodney T. Hartman and Don M. Hayes ; Herndon, Hartman
Sweeney & Halverson, Billings, Montana
Submitted on Briefs: February 21, 1991
Decided: March 19, 1991
Filed:
I
Cldrk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The District Court for the Thirteenth Judicial District,
Carbon County, dismissed plaintiff Tom Highamtstort and constitu-
tional claims against defendant, in a partial summary judgment.
It also denied Higham leave to file a third amended complaint.
Higham appeals. We affirm.
Restated, the issues are:
1. Did the court err in granting summary judgment in defen-
dant's favor on the tort and constitutional claims?
2. Did the court err in denying Highamtsmotion to be allowed
to file a third amended complaint?
On May 23, 1984, Higham entered a written contract to haul
garbage for the City of Red Lodge (City). The contract was to run
from June 1, 1984, to May 30, 1986. At a special meeting of the
Red Lodge City Council on June 7, 1984, Higham requested that he
be released from the contract and that the City either perform the
garbage hauling itself or reopen the contract to competitive
bidding. He claimed that the conduct of the city council members
toward his business had made it impossible to effectively fulfill
the contract terms.
Higham originally filed this action in July 1984, requesting
a declaratory judgment that he was released from his garbage
hauling contract. Within a month, and acting pro se after his
attorney withdrew, Higham amended the complaint to include several
additional counts for declaratory relief. Represented by new
counsel, Higham filed a second amended complaint in January 1988.
The second amended complaint abandoned the request for declaratory
relief. It asserted three counts: one for breach of contract, one
for breach of the implied covenant of good faith and fair dealing,
and one for violations of constitutional rights. Higham1sposition
in the second amended complaint is that the June 7, 1984, city
council meeting was illegal for lack of notice and that the
termination of his garbage hauling contract was unlawful and was
retaliatory for his expressed political views.
The City moved for summary judgment on all three counts of
Higham1s complaint. Higham moved for partial summary judgment on
the breach of contract claim. Higham also moved to file a third
amended complaint. The District Court dismissed Higham1sconstitu-
tional claims and bad faith claim on grounds of immunity and res
judicata. It denied Higham leave to file a third amended complaint
and denied his motion for partial summary judgment. The court then
certified for appeal its rulings on the claims which were dis-
missed.
I
Did the court err in granting summary judgment in defendant's
favor on the tort and constitutional claims?
Summary judgment is proper when there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. Rule 56(c), M.R.Civ.P. To prevail, the nonmoving
party must set forth facts demonstrating that a genuine issue of
fact exists. OIBagyv. First Interstate Bank (1990), 241 Mont. 44,
46, 785 P.2d 190, 191. This Court's standard of review is the same
as that utilized by the trial court. McCracken v. City of Chinook
(1990), 242 Mont. 21, 24, 788 P.2d 892, 894. We will affirm a
correct result regardless of the reasoning used by the lower court.
Phillips v. City of Billings (1988), 233 Mont. 249, 252, 758 P.2d
772, 774.
The District Court ruled that Higham's constitutional and tort
claims were barred under the doctrine of sovereign immunity. It
also held that the doctrine of res judicata barred Higham from
asserting constitutional and tort claims arising from conduct prior
to March 16, 1984, because his previous lawsuit based on the same
matters was dismissed with prejudice on that date.
The subject of the previous lawsuit referred to by the
District Court was Higham's entitlement to haul garbage for the
City during the period 1983 to 1988. Higham sought damages for
wrongfully being denied a contract for that period. The complaint
characterized the City's conduct as fraudulent, arbitrary, and
capricious. Higham also alleged in that complaint that the City
Itdid not observe good faith,'' did not accord ''just and fair
c~nsideration,~'committed a I1personal discriminatory act toward
the Plaintiff,I1 and had "undertaken unfair and discriminatory
practices directed against the Plaintiff." Higham asked the
District Court to require the City to award the garbage contract
to him and to award him damages including punitive damages.
Res judicata prohibits a party from relitigating a matter that
the party has already had the opportunity to litigate. First Bank
v. Fourth Judicial Dist. Court (1987), 226 Mont. 515, 519, 737 P.2d
1132, 1134. We conclude that the complaint which was dismissed
with prejudice on March 16, 1984, raised allegations which raised
or fairly could have raised any claims of bad faith or violation
of constitutional rights of Higham arising before or during the
pendency of that action. Higham had the opportunity to litigate
those issues, but in stipulating to a dismissal of the action, he
chose not to do so. When that suit was dismissed with prejudice,
all such issues were decided. Any entitlement Higham had to a
contract to haul garbage for the City or to damages based on con-
duct which was tortious or in violation of his constitutional
rights before the date of that dismissal was thereby determined
with finality.
We hold that the District Court did not err in granting
summary judgment in favor of defendant on the tort and constitu-
tional claims. Because we have concluded that the court's action
was correct based upon principles of res judicata, we need not
decide whether sovereign immunity also bars these claims.
Did the court err in denying Highamtsmotion to be allowed to
file a third amended complaint?
Highamts proposed third amended complaint would add as
defendants individual city council members, the city attorney, the
mayor, Ray Judd, and Ray Judd Ford, Inc. As described in Highamts
motion to be allowed to amend, the added claim apparently would be
that negotiations toward a September 11, 1984, lease-purchase
contract between the City and proposed defendant Ray Judd Ford,
Inc. , contributed to the City's breach of contract and breach of
the implied covenant of good faith and fair dealing.
The District Court stated that Highamts proposed claim would
be barred by statutes of limitation unless it would relate back to
the filing of earlier complaints. The court determined that the
claim did not relate back because the new claim operates on facts
different than those set forth in the second amended complaint.
Rule 15(a), M.R.Civ.P., provides that a party may amend
pleadings by leave of court and such leave shall be freely given
when justice so requires. Rule 15(c), M.R.Civ.P., provides:
Whenever the claim or defense asserted in the
amended pleading arose out of the conduct,
transaction, or occurrence set forth or at-
tempted to be set forth in the original plead-
ing, the amendment relates back to the date of
the original pleading. An amendment changing
the party against whom a claim is asserted
relates back if the foregoing provision is
satisfied and, within the period provided by
law for commencing the action against him, the
party to be brought in by amendment (1) has
received such notice of the institution of the
action that he will not be prejudiced in
maintaining his defense on the merits, and (2)
knew or should have known that, but for a
mistake concerning the identity of the proper
party, the action would have been brought
against him.
We agree with the District Courtlsstatement that Highamlsproposed
new claim would add a theory of conspiracy which was not present
in the second amended complaint. In particular, Ray Judd and Ray
Judd Ford, Inc., would have had no way of predicting from the
second amended complaint that the action would be amended to
include them as defendants. We conclude that the District Court
was correct in determining that this new claim should not relate
back to the time of filing the other complaints. We therefore hold
that the court did not err in denying Higham1smotion to be allowed
to file a third amended complaint.
Affirmed.
We concur: