author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT JOHN EKLUND, Defendant and Appellant.
    No. 93-188.
    Submitted on Briefs February 3, 1994.
    Decided April 5, 1994.
    51 St.Rep. 335.
    264 Mont. 420.
    872 P.2d 323.

      For Defendant and Appellant: Patrick D. Sherlock, Sherlock & Nardi, Kalispell.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, George Schunk, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant Robert John Eklund was found guilty of sexual intercourse without consent following a jury trial in the District Court for the Eleventh Judicial District, Flathead County. Eklund moved to dismiss the charge due to lack of a speedy trial, and moved for a mistrial contending that the court allowed the State to introduce inadmissible character evidence at trial. The District Court denied both motions. Eklund appeals.

We affirm in part, reverse in part, and remand for retrial.

The issues are:

1. Was Eklund denied a speedy trial since 197 days elapsed between his arrest and his trial?

2. Did the District Court err in allowing character evidence to be introduced during cross-examination of Eklund’s character witness?

In June 1992, a neighbor of Eklund’s estranged wife reported to the Department of Family Services that Eklund’s 13-year-old stepdaughter, J.L., had told her that Eklund had molested her. J.L. stated that the alleged offenses occurred in early April 1992, when she and Eklund’s natural children, six-year-old B.E. and five-year-old A.E., stayed two weekends at Eklund’s house. She and Eklund had slept on separate couches in the living room where the television was, while the other two children slept in another room. She alleged that before he sexually molested her he ordered her to take her clothes off, and that she complied because she was afraid he would hit her. Eklund denied that the acts took place or that J.L. slept in the living room with him during the visits. He stated that his house guest and renter, who were staying with him during the time of the alleged occurrences, would confirm his version.

On June 24, 1992, prior to his arrest for the present charges, Eklund was arrested and incarcerated on contempt charges for failing meet a release condition resulting from a conviction for driving under the influence. Therefore, on July 7, 1992, when Eklund was arrested for charges of sexual intercourse without consent, he was already incarcerated. On September 2, 1992, Eklund was arraigned and pled not guilty to the charge.

On October 29,1992, the court denied Eklund’s motion to dismiss for delay of his arraignment until September 2, 1992. Also, on January 13,1993, the court denied his motion to dismiss for lack of speedy trial after finding that he was not prejudiced by the delay. Ajury trial was held on January 19 and 20, 1993. During trial, Eklund called Dave Svinth as a character witness. Svinth testified about Eklund’s good relationship with his children and his nonviolent behavior toward them. In rebuttal to Svinth’s testimony, during cross-examination the State questioned him concerning Eklund’s numerous driving under the influence offenses, prior incarceration, alcohol abuse, and murder charges in 1974. The court denied Eklund’s objections to the evidence as inadmissible character evidence. On January 20,1993, Eklund moved for a mistrial, which the court also denied.

The jury found Eklund guilty of sexual intercourse without consent. The court classified Eklund as a dangerous offender and sentenced him to 40 years at the Montana State Prison. Eklund appeals.

ISSUE 1

Was Eklund denied a speedy trial since 197 days elapsed between his arrest and his trial?

Eklund was arrested on July 7, 1992, and was incarcerated at all times prior to his trial beginning on January 19, 1993, resulting in a delay of 197 days. Eklund argues that the delay violates his right to a speedy trial under the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution. We disagree.

Whether a defendant’s constitutional right to a speedy trial has been violated is determined by a four-part test set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed. 2d 101, 117. The four-part test was adopted by this Court in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64. A sensitive balancing of the following four factors determines whether a defendant was denied a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right by the defendant; and (4) prejudice to the defendant. State v. Thompson (1993), [263 Mont. 17], 865 P.2d 1125, 1135. All four factors are weighed by considering the facts and circumstances of each case. Thompson, 865 P.2d at 1135.

The first factor of the Barker test, length of delay, triggers further inquiry into the other three factors; it is not necessary to consider the other factors unless the length of the delay is presumptively prejudicial. Thompson, 865 P.2d at 1134. When considering the length of delay, no regard is given to which party caused the delay. Thompson, 865 P.2d at 1135. A delay of over 200 days will usually trigger further analysis. Thompson, 865 P.2d at 1135. In State v. Bartnes (1988), 234 Mont. 522, 764 P.2d 1271, this Court completed a full analysis where there was a delay of 175 days. Here, 197 days is presumptively prejudicial to Eklund, given the close proximity to the 200-day trigger. The State has the burden to provide reasonable explanation for the delay and to show that Eklund was not prejudiced by the delay. State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 306, 314. In analyzing the three remaining factors, no particular factor is determinative. Thompson, 865 P.2d at 1135.

The second factor of the Barker test, reason for the delay, is analyzed by first allocating delay to the responsible party. Thompson, 865 P.2d at 1135. Here, the State and Eklund agree that the reason for the delay was institutional due to the clogged court system. The delay is chargeable to the State, however, institutional delay “weighs less heavily against the State than does purposeful delay.” Thompson, 865 P.2d at 1135.

Both parties agree that the third factor of the Barker test, the defendant’s assertion of the right to a speedy trial, has been met.

The fourth factor of the Barker test, prejudice to the defendant, is analyzed by considering its three parts: (1) pretrial incarceration; (2) anxiety and concern; and (3) impairment of defense, the most critical factor. Thompson, 865 P.2d at 1135. After applying these three parts of the fourth factor to this case we conclude that Eklund was not prejudiced by the delay.

Eklund argues that he has met the requirement of pretrial incarceration because he was incarcerated at all times prior to his trial. The State argues that he would have been incarcerated regardless of the pending charge and trial due to his incarceration for an unrelated offense. Eklund replies that the State’s argument is weak because Eklund’s memorandum for motion to dismiss for lack of speedy trial stated that the Justice Court would release him from the sentence for his driving under the influence offense if released from the present charges. Our review of the record fails to show sufficient evidence to resolve this argument. However, based on the further discussion in this opinion we need not decide this point.

Eklund argues that he has met the next part, anxiety and concern, because anxiety and concern are inherent in the experience of being incarcerated for 197 days. He also argues that due to incarceration he was unable to locate his witnesses, and being separated from his friends caused him anxiety.

The presence of anxiety and concern is difficult for a defendant to prove, and the State is presented with the “near impossible burden of proving that it does not exist.” Curtis, 787 P.2d at 316. However, the State’s burden to show lack of anxiety lessens considerably when marginal evidence of anxiety is presented. Curtis, 787 P.2d at 316. Here, Eklund’s argument that he was unable to contact his witnesses and he missed his friends appears to us as marginal evidence.

Eklund argues that he has met impairment of defense, because he was unable to locate his house guest and renter as defense witnesses, and all his witnesses experienced memory loss due to the delay. However, he provides no evidence that his defense was impaired by the delay, and the record reveals that he did not attempt to locate witnesses until they were unavailable.

On January 13,1993, at the hearing for motion to dismiss for lack of speedy trial, Eklund testified that he knew the location of potential witnesses in July 1992, but waited until October 1992 to locate them for his defense as alibi witnesses. He also testified that he lacked evidence to prove that the witnesses’ memories were dimmed because neither he nor his attorney had contacted them.

Eklund next argues that B.E. and A.E., his children who were present in his home during the alleged offenses, had experienced memory loss due to the delay. In State v. Scott (1993), 257 Mont. 454, 459-60, 850 P.2d 286, 289, the defendant argued that due to the delay of his trial, his child witnesses were unable to remember important details concerning whether the defendant sexually assaulted another child, thus impairing his defense. However, this Court stated that the defendant had failed to show how he was prejudiced by providing details of the children’s memory loss; rather the children’s memory loss was beneficial to the defendant because they could not remember the circumstances of the offense and give testimony against the defendant that he sexually assaulted the child. Here, at the end of the trial and at Eklund’s request, B.E. and A.E. were examined by counsel and the court; after the examination neither child was called to testify. Neither of the children’s transcripts support that their testimony would have benefitted his defense, and he fails to show how he was prejudiced. We hold that the District Court did not err in denying Eklund’s motion to dismiss for lack of speedy trial.

ISSUE 2

Did the District Court err in allowing character evidence to be introduced during cross-examination of Eklund’s character witness?

On January 15, 1992, prior to trial, Eklund filed notice of the character witnesses he intended to call at trial. During the jury trial, Svinth, Eklund’s character witness, responded to questions on direct examination and testified as follows:

Q. Did you know whether or not he exhibited any harsh words or discipline toward any of the children?
A. None. In fact, maybe to the opposite. In fact, he didn’t see them as often as he would have liked, really. He was probably the opposite, you know, letting them get away with more than I would have, myself.

On cross examination, the prosecutor for the State asked the following:

Q. Why is it, do you think, that Mr. Eklund didn’t get to see his kids as much as he liked?
A. His drinking problem, I am sure, was a big factor.
Q. He would rather be out drinking and carousing around, as opposed to taking care of his family?
A: It was a factor.
EKLUND’S COUNSEL: Your Honor, I object to that question as calling for a conclusion.
THE COURT: Overruled.

The State continued to cross-examine Svinth about Eklund’s convictions for driving under the influence, and his incarceration. The State then asked the witness:

Q. Do you know what Mr. Eklund is charged with?
A. No, not really.
Q. He is accused of using threat of violence to coerce his thirteen-year-old stepdaughter into allowing him to have intercourse with her. Does it surprise you that he has threatened her with violence, that he could be violent?
A. I have never known him to be violent.
Q. How long have you known him?
A. Since the mid-seventies.
Q. And you have never known him to be violent?
A. No.
Q. Were you aware of a charge filed against him in 1974?
A. No.
EKLUND’S COUNSEL: Your Honor, I object to this question as well. Improper cross-examination.
THE COURT: Overruled.
Q. Were you aware, in 1974, that he was charged with murder?
A. Yeah, I have been filled in with bits and pieces from my sister.
Q. Did she tell you that he took a man by the name of “Fox” out hunting, shot him in the head, and dumped his body in a barrow pit?
A. I am not aware of the particulars. I don’t know if she was even

The State continued to ask questions concerning prior reports that Eklund was emotionally and physically abusive toward his children while he was intoxicated. Eklund objected to the questions as introducing new evidence which the court denied.

After trial, Eklund moved for a mistrial, contending that the State had introduced inadmissible character evidence because Eklund did not open the door to his character as to truthfulness or that he was law-abiding, but had presented testimony to show generally that he treated his children well and never hit J.L. to rebut her testimony that he threatened her. The court denied this motion by stating:

The Court is satisfied that the Rules of Evidence — for the requirement precedent to allowing the State, in this case, to produce evidence as to certain of Defendant’s character, the requirements of Rule 404, the Court is satisfied with that being opened up, first by the Defendant, since beginning with counsel's opening statement, and then various questions on cross-examination, as well as Defendant’s testimony; and the motion is denied.

The State contends that Eklund opened the door to all legitimate cross-examination of that witness when he called his character witness to support his good reputation that he was a kind, caring, and nonviolent father pursuant to Rule 404(a)(1), M.R.Evid.

Eklund argues that the court erred in overruling his objection to the state’s statement that he was charged with murder in 1974. Eklund denies that he was charged with murder in 1974. He admits that he was convicted in 1973 of manslaughter, a crime of negligence rather than of intent. He argues that the statement was highly prejudicial and inflammatory and impossible to defend against, and that he did not receive a fair and impartial trial. We agree.

A mistrial may be granted upon a demonstration of manifest necessity, along with the denial of a fair and impartial trial. This Court will not disturb a lower court’s denial of a motion for mistrial unless there is clear and convincing proof of error. State v. Dixon (1994), [264 Mont. 38], 869 P.2d 779, 781, 51 St. Rep. 135, 137.

A new trial may be granted if there is an “irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” Section 25-11-102(1), MCA.

Generally, character evidence is not admissible to prove conduct. Rule 404(a), M.R.Evid. Rule 404(a)(1), M.R.Evid., allows the prosecution to rebut the accused’s offer of a pertinent trait of character. Rule 405(a), M.R.Evid., provides the following method to prove character:

Reputation or opinion. ... proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

The State claims that the cross-examination properly rebutted Eklund’s character evidence. State v. Clark (1984), 209 Mont. 473, 682 P.2d 1339. In Clark, the defendant was charged with sexual intercourse without consent with his young stepdaughter whereby he offered character evidence that he was gentle and nonviolent with his children and others, and concerning his propensity for truthfulness. By presenting character evidence, the defendant had placed his character at issue pursuant to 404(a)(1), M.R.Evid. Using the method in Rule 405(a), M.R.Evid., the prosecution properly cross-examined the defense character witness by asking whether he knew the following: the defendant had a prior armed robbery conviction; the defendant forcibly escaped from jail by overpowering the jailer; and other violent crimes the defendant committed while serving in Vietnam. Clark, 682 P.2d at 1347. This Court found that the evidence was relevant to rebut the defendant’s good character evidence because the defendant denied the charges and denied any violent acts toward the stepdaughter; also, this Court noted that the court gave the jury a cautionary instruction. Clark, 682 P.2d at 1348.

The present case is distinguishable from Clark. The evidence in Clark concerned prior convictions that depicted the defendant’s violent character, and the probative value of the evidence outweighed the unfair prejudice to the defendant. Here, the State cross-examined Eklund’s character witness about Eklund’s prior murder charges to rebut his nonviolent character evidence; the actual conviction for these charges was for manslaughter. See State v. Benton (1992), 251 Mont. 401, 404, 825 P.2d 565, 567, where danger of unfair prejudice of evidence of charges, not a conviction, clearly outweighed the probative value.

Character is defined as the “aggregate of the moral qualities which belong to and distinguish an individual person; the general result of one’s distinguishing attributes.” Black’s Law Dictionary 232 (6th ed. rev. 1990). While the prosecution may rebut defendant’s offer of character evidence, the prosecution must present legitimate and relevant character evidence, and “the accused’s entire life should not be searched in a effort to convict him.” State v. Heine (1975), 169 Mont. 25, 29, 544 P.2d 1212, 1214.

After the court overruled Eklund’s objection to the State’s inquiry concerning murder charges, the State asked the following: “Did she tell you that he took a man by the name of “Fox” out hunting, shot him in the head, and dumped his body in a barrow pit?” This Court, in State v. Jones (1914), 48 Mont. 505, 517, 139 P. 441, 446, condemned questions in cross-examination where the question assumes the existence of facts not admissible as independent evidence, citing People v. Mullings (1890), 83 Cal. 138, 23 P. 229:

It is quite evident that the questions, and not the answers, were what the prosecution thought important. The purpose of the questions clearly was to keep persistently before the jury the assumption of damaging facts which could not be proven, and thus impress upon their minds the probability of the existence of the assumed facts upon which the questions were based.

This Court said “[w]hether or not such questions are answered or not, the putting of them is condemned by the courts and text-writers as gross misconduct.” Jones, 139 P. at 446. In the present case, the inquiry was improper and was intended to show Eklund had a violent character, and the prejudice to him outweighed the probative value under Rule 403, M.R.Evid. We conclude that Eklund has met his burden of showing clear and convincing evidence of error.

Section 46-20-701, MCA, provides that any ruling of the trial court that affects the respondent’s substantial rights will be deemed harmless unless the record shows that the error was prejudicial. The test to decide if the prejudicial error requires a reversal is “whether there is a reasonable possibility that the inadmissible evidence might have contributed to the verdict.” Brodniak v. State (1989), 239 Mont. 110, 114, 779 P.2d 71, 73, (quoting State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266). In our inquiry, we must examine the totality of the circumstances in which the error occurred. Brodniak, 779 P.2d at 74.

In the present case, the following testimony was presented by the State: J.L.’s testimony concerning the alleged offenses; J.L.’s mother who gave general testimony; the neighbor’s testimony who reported the alleged offenses; and the social worker’s and detective’s testimony who were involved in the investigation. Because the jury reached its verdict by considering the credibility of all the witnesses, the misleading evidence must have created great prejudice to Eklund for the jury to know he was charged with murder. We conclude that there is a reasonable possibility that the inadmissible evidence of Eklund’s murder charge denied him a fair and impartial trial.

Because we have found reversible error on the evidence concerning murder charges and remand for retrial, we decline to discuss further evidence concerning Eklund’s driving under the influence convictions, that he had abused alcohol, and that he had been incarcerated.

We affirm the District Court’s denial of Eklund’s motion to dismiss for lack of speedy trial, reverse the District Court’s denial of motion for mistrial, and remand for a new trial.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER, GRAY, NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    ROGER HOLTMAN, Plaintiff and Appellant, v. 4-G’s PLUMBING & HEATING, INC., a corporation, Defendants and Respondents.
    No. 93-365.
    Submitted on Briefs December 16, 1993.
    Decided April 5, 1994.
    51 St.Rep. 340.
    264 Mont. 432.
    872 P.2d 318.

      For Appellant: Charles J. Tornabene, Patterson, Marsillo, Tornabene, Schuyler & McKenna, Missoula.
    For Respondents: Ronald A. Bender, Worden, Thane & Haines, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Roger Holtman (Holtman) appeals from an order entered by the Fourth Judicial District Court, Missoula County, granting summary judgment in favor of 4-G’s Plumbing and Heating, Inc. (4-G’s Plumbing). The court determined that dismissal with prejudice of Holtman’s counterclaim in a previous lawsuit barred his trespass, invasion of privacy and asbestos contamination claims against 4-G’s Plumbing under the doctrines of res judicata and collateral estoppel. Holtman asserts error only in the court’s application of the doctrines to his asbestos contamination claim. Because all of the elements of res judicata and collateral estoppel are not met, we reverse the court’s grant of summary judgment in favor of 4-G’s Plumbing on that claim.

Holtman owned a condominium located in the Edgewater Townhouse Complex in Missoula, Montana. In February of 1989, the Edgewater Townhouse Homeowner’s Association (the Association) authorized an employee of 4-G’s Plumbing to enter Holtman’s condominium, in his absence, to repair a leak and install a new heating system. When Holtman returned to his condominium, he discovered a partially installed heating system and alleged asbestos contamination. Holtman refused to allow further installation of the system.

The Association filed a complaint seeking an injunction to require the installation of the heating system. Holtman responded by generally denying the Association’s allegations. Nearly two years later, Holtman filed a counterclaim without leave of court. He alleged that the Association had deprived him of property rights, invaded his privacy, and contaminated his condominium with asbestos. In addition to other rulings, the court dismissed the counterclaim with prejudice because the compulsory counterclaim was not timely filed under Rule 13(a), M.R.Civ.P., and Holtman had failed to obtain leave of court pursuant to Rule 13(f), M.R.Civ.P. Both Holtman and the Association appealed. We affirmed the dismissal of Holtman’s counterclaim in Edgewater Townhouse v. Holtman (1993), 256 Mont. 182, 845 P.2d 1224.

In January of 1992, Holtman filed the present action against the Association and 4-G’s Plumbing, asserting claims of invasion of privacy, trespass, and asbestos contamination. The Association moved for summary judgment, arguing that the claims were barred by res judicata. 4-G’s Plmnbing joined in the Association’s motion and filed a separate motion for summary judgment relying on both resjudicata and collateral estoppel. The District Court granted summary judgment for each defendant by separate order, dismissing the claims against the Association under res judicata and the claims against 4-G’s Plumbing under res judicata and collateral estoppel. Holtman appeals only from the summary adjudication in favor of 4-G’s Plumbing.

Our standard for reviewing a grant of summary judgment is the same as that used by the district court. Emery v. Federated Foods (1993), [262 Mont. 83] 863 P.2d 426, 431, 50 St.Rep. 1454, 1456. Initially, we determine whether there is an absence of genuine issues of material fact. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. The party moving for summary judgment has the initial burden of demonstrating a complete absence of any genuine factual issues. D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924. In order to meet this burden, the moving party must support its motion with an appropriate evidentiary basis. Minnie, 849 P.2d at 214. The moving party may draw from the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits. Rule 56(c), M.R.Civ.P.

Once an absence of genuine issues of material fact is established, we determine whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214. Here, the District Court concluded that 4-G’s Plumbing was entitled to summary judgment under the doctrines of res judicata and collateral estoppel. We do not defer to a district court’s legal conclusions, but determine whether they are correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Res Judicata

The doctrine of res judicata is grounded on the principle that litigation must at some point come to an end. Orlando v. Prewett (1989), 236 Mont. 478, 481, 771 P.2d 111, 113. It bars the relitigation of an entire cause of action once a final judgment has been entered. Marriage of Stout (1985), 216 Mont. 342, 349, 701 P.2d 729, 733. All of the following elements are necessary for res judicata to apply:

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 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.

Tisher v. Norwest Capital Mgmt. (1993), [260 Mont. 143] 859 P.2d 984, 987-88, 50 St.Rep. 960, 962.

Holtman asserts that his “asbestos contamination” claim alleges negligent workmanship on the part of 4-G’s Plumbing in the installation of the heating system. Because his prior counterclaim against the Association contained no such claim, he argues that none of the elements of res judicata is met. 4-G’s Plumbing urges application of the doctrine, asserting that the claims advanced in the complaint do not contain an allegation of negligent workmanship, but are identical to those raised in the prior counterclaim.

Holtman’s asbestos contamination claim reads as follows:

That said defendant, 4-G’s Plumbing & Heating, Inc., in the process of installing said hot water heating system in Plaintiff’s home, disturbed older plumbing pipes, which were contaminated with asbestos, resulting in asbestos contamination of Plaintiff’s home and the personal property contained therein.

This asbestos contamination claim — as alleged — is hardly a model of clarity. However, 4-G’s Plumbing did not move for summary judgment on the basis of a failure to state a claim upon which relief could be granted or challenge the claim as alleged in any other way. We decline to rule on an issue that was not presented to the District Court. Goodover v. Lindey’s, Inc. (1992), 255 Mont. 430, 441, 843 P.2d 765, 772. Thus, we address the applicability of res judicata to Holtman’s asbestos contamination claim to the extent that claim is read to allege negligent workmanship by 4-G’s Plumbing in the installation of the heating system.

The “parties or their privies” element of res judicata is dispositive here. It is undisputed that 4-G’s Plumbing was not a party to the prior litigation. The District Court determined, however, that 4-G’s Plumbing and the Association were privies because they “acted in concert.”

We previously have focused on whether a defendant’s legal right or interest has been represented by the previous litigant to determine whether the two are privies. As we stated in Brault v. Smith (1984), 209 Mont. 21, 27, 679 P.2d 236, 239, the concept of a “privy” in the context of a judgment applies to one whose interest has been legally represented at trial. We have similarly defined privies as those who are so connected in estate or in blood or in law as to be identified with the same interest and, consequently, affected with each other by litigation. Tisher, 859 P.2d at 988.

As the party moving for summary judgment, 4-G’s Plumbing had the initial burden of demonstrating the absence of a genuine issue of material fact and entitlement to judgment as a matter of law on the privity element. 4-G’s Plumbing did not file an answer to Holtman’s complaint; nor did it submit any depositions, answers to interrogatories, admissions or affidavits to support its motion for summary judgment. Thus, it did not provide any evidentiary basis for summary adjudication.

By joining the Association’s motion for summary judgment, however, 4-G’s Plumbing ostensibly adopted the Association’s evidentiary basis for summary judgment, including copies of the prior counterclaim, the order striking it with prejudice, and the findings and rulings contained in the court file relating to the previous litigation. Therefore, we focus on whether these materials form a sufficient basis for summary judgment on the issue of privity — a shared legal interest — between the Association and 4-G’s Plumbing on the asbestos contamination claim.

The materials indicate that the Association hired 4-G’s Plumbing and allowed its employee into the condominium to install the heating system, supporting the District Court’s determination that the two “acted in concert” in entering the condominium. This mutual conduct in entering the condominium, however, does not establish that the Association shared a legal interest with 4'-G’s Plmnbing with regard to its workmanship in the installation of the heating system. Thus, the court’s conclusion that the Association and 4-G’s Plumbing are privies, in the context of the asbestos contamination claim, is incorrect.

4-G’s Plumbing attempts to establish a shared legal interest in the asbestos contamination claim to the extent that claim alleges negligent workmanship by arguing that it acted as an agent of the Association in installing the heating system. An agency relationship would exist if the Association controlled or had the right to control the physical conduct of 4-G’s Plumbing in the installation of the heating system. See Eccleston v. Third Jud. Dist. Ct. (1989), 240 Mont. 44, 51-52, 783 P.2d 363, 368, quoting Restatement (Second) of Agency, § 2. Nothing in the record of the prior litigation or the present case establishes such a right of control. We conclude that the materials relied on by 4-G’s Plumbing to support summary adjudication do not establish that it was a privy of the Association with regard to the asbestos contamination claim.

4-G’s Plumbing advances two other arguments, loosely tied to the doctrine of res judicata, to bar Holtman’s asbestos contamination claim. Based on its assertion that Holtman could have raised the claim in the prior proceeding, 4-G’s Plumbing argues that he is barred by the doctrine from doing so here.

It is true that res judicata precludes claims that could have been raised in the prior lawsuit as well as those actually adjudicated. Beck v. Flathead County (1989), 240 Mont. 128, 133, 783 P.2d 383, 386; Orlando v. Prewett (1989), 236 Mont. 478, 481, 771 P.2d 111, 113. The preclusive effect of res judicata, however, applies only to claims raised in subsequent lawsuits between the parties in the original action or their privies, reflecting the “parties or their privies” element of the doctrine. Beck, 783 P.2d at 386; Orlando, 771 P.2d at 113. Thus, res judicata’s preclusive effect as to claims not actually litigated does not apply to the case before us.

Finally, 4-G’s Plumbing asserts that Rule 12(b), M.R.Civ.P., required Holtman to assert his claims against it in the prior litigation. Rule 12(b), M.R.Civ.P., requires that every defense to a claim, counterclaim or third-party claim be raised in the responsive pleading. Holtman’s claims against 4-G’s Plumbing were not a defense to the claims asserted by the Association in the prior litigation. Thus, he was not required by Rule 12(b), M.R.Civ.R, to file his claims against 4-G’s Plumbing in that action.

4-G’s Plumbing has not demonstrated that the “parties or their privies” element of res judicata is met. We hold that the District Court erred in applying res judicata to bar Holtman’s asbestos contamination claim against 4-G’s Plumbing.

Collateral Estoppel

Again focusing entirely on the asbestos contamination claim, Holt-man asserts that the District Court erred in concluding that 4-G’s Plumbing was entitled to summary judgment under the doctrine of collateral estoppel. He contends that collateral estoppel does not bar the claim because the issue of 4-G’s Plumbing’s negligence was not raised in his prior counterclaim.

Collateral estoppel, sometimes referred to as issue preclusion, is a form of res judicata. While res judicata bars parties from relitigating claims in subsequent proceedings based on the same cause of action, collateral estoppel bars the reopening of an issue in a second cause of action that has been litigated and determined in a prior suit. Linder v. Missoula County (1992), 251 Mont. 292, 294, 824 P.2d 1004, 1005. The doctrine has three elements:

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.

State v. Young (1993), 259 Mont. 371, 377, 856 P.2d 961, 965. Our analysis need not proceed beyond the first element.

Identity of issues is the most crucial element of collateral estoppel. Anderson v. State (1991), 250 Mont. 18, 21, 817 P.2d 699, 702. In order to satisfy this element, the identical issue or “precise question” must have been litigated in the prior action. Anderson, 817 P.2d at 702. To determine whether the issue raised is identical, we compare the pleadings, evidence and circumstances surrounding the two actions. Aetna Life Ins. Co. v. McElvain (1986), 221 Mont. 138, 146, 717 P.2d 1081, 1086. We note that we have only the asbestos-related allegations to examine from the previous litigation since Holt-man’s counterclaim was dismissed on legal grounds prior to the receipt of any evidence on the claim.

It is true that Holtman’s prior counterclaim against the Association arose from the same events as his claim against 4-G’s Plumbing and, like his present claim, sought damages for the alleged asbestos contamination. Holtman’s asbestos-related contamination claim against the Association in the prior litigation was as follows:

[The Association] did, without the knowledge or consent of [Holt-man], terminate the heating service to [Holtman’s] unit sometime between March, 1988 and February 5, 1989, which resulted in certain waterlines freezing, breaking and creating water leaks in [Holtman’s] unit and subsequently therewith caused the asbestos covering of certain pipes to be removed and generally distributed throughout the unit, all of which rendered [Holtman’s] unit damaged, unsafe and uninhabitable.

When this claim is compared to Holtman’s asbestos contamination claim against 4-G’s Plumbing set forth above, it is clear that the identical issue, or precise question, raised in the present case was not raised and decided in the earlier litigation involving the Association.

Holtman’s prior asbestos-related claim can be read as alleging an intentional wrongful act by the Association — the unauthorized termination of heat to the condominium — followed by all the damage that flowed therefrom, including broken waterlines and asbestos disturbance and distribution. To the extent the prior claim is read in this fashion, it is clear that the issue of the alleged negligence of 4-G’s Plumbing in the present case is not identical.

Furthermore, to the extent the prior asbestos-related claim is read as an allegation of negligence against the Association resulting in asbestos contamination, that claim did not raise the issue of 4-G’s Plumbing’s negligent workmanship in the installation of the new heating system. A negligence action is premised, first, on the existence of a duty. Nautilus Ins. v. First National Ins. (1992), 254 Mont. 296, 299, 837 P.2d 409, 411. 4-G’s Plumbing has not established that its legal duties to Holtman in installing the new heating system were co-extensive with the duties owed him by the Association.

We conclude that the “identical issue” element of collateral estoppel is not met under the circumstances before us. Therefore, we hold that the District Court erred in concluding that Holtman is collaterally estopped from asserting the asbestos contamination claim and in granting summary judgment in favor of 4-G’s Plumbing on that claim.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, HARRISON, HUNT, TRIEWEILER, NELSON and WEBER concur.


author: JUSTICE TRIEWEILER

text:
    SPAIN-MORROW RANCH, INC., a Montana corporation, and ROGER VAN DYKEN, Lessee, Plaintiffs and Respondents, v. LAWRENCE E. WEST and IRIS J. WEST, husband and wife, and CMC HEARTLAND PARTNERS, Defendants and Appellants.
    No. 93-637.
    Submitted on Briefs March 24, 1994.
    Decided April 12, 1994.
    51 St.Rep. 363.
    264 Mont. 441.
    872 P.2d 330.

      For Defendants and Appellants: Wayne Jennings, Bozeman.
    For Plaintiffs and Respondents: Edmund P. Sedivy, Jr., and Lynda S. Weaver, Morrow, Sedivy & Bennett, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiffs Spain-Morrow Ranch, Inc., and Roger Van Dyken filed a complaint in the Eighteenth Judicial District Court in Gallatin County against defendants Lawrence E. West, Iris J. West, and CMC Heartland Partners to quiet title to a parcel of land and set aside a tax deed delivered to Lawrence West and Iris West. Wests counterclaimed to quiet title in their favor. The District Court granted Spain-Morrow Ranch, Inc., and Roger Van Dyken’s motion for summary judgment and denied Wests’ motion for summary judgment. We affirm the judgment of the District Court.

The dispositive issue on appeal is whether the District Court properly concluded that plaintiffs were occupants of the abandoned railroad right-of-way, and therefore, entitled to notice of the pending issuance of a tax deed.

FACTUAL BACKGROUND

The land which is the subject of this dispute consists of 3.27 acres of railroad right-of-way abandoned in 1978 by the Chicago, Milwaukee, St. Paul and Pacific Railroad Co. The 100-foot-wide strip of land runs north and south through an agricultural parcel currently owned by Spain-Morrow Ranch, Inc., and farmed by its lessee, Roger Van Dyken. They have operated under a lease agreement since 1968.

In legal proceedings for its reorganization, the Chicago, Milwaukee, St. Paul and Pacific Railroad Co. received authority to abandon its former railroad line in Gallatin County, Montana on May 8,1978. CMC Heartland Partners is the successor in interest to the railroad, but did not claim any right, title, or interest in the property in this proceeding.

Gallatin County acquired an interest in the right-of-way by a tax sale certificate on July 12,1986. On August 3, 1992, Lawrence West and Iris West tendered $223.17 to satisfy delinquent taxes and received an assignment of the tax sale certificate from Gallatin County. On September 10, 1992, Wests filed an affidavit of proof of service of notice of pending tax deed which identified CMC Heartland Partners as an owner to whom notice was required and given. Wests further identified the right-of-way land as unoccupied. No notice was given to Spain-Morrow or Van Dyken. Gallatin County issued a tax deed to Wests on October 22, 1992.

Spain-Morrow and Van Dyken filed their complaint on January 29, 1993. They alleged that they possessed and occupied the right-of-way land and that Wests’ failure to provide them with notice upon application for a tax deed rendered the tax deed void. Spain-Morrow further alleged ownership in fee simple of the right-of-way land as evidenced by a warranty deed recorded at the Gallatin County Clerk and Recorder’s office.

The District Court filed a notice of entry of default against CMC Heartland Partners on April 22, 1993. On October 27, 1993, the District Court granted Spain-Morrow and Van Dyken’s motion for summary judgment based on its determination that Spain-Morrow and Van Dyken were “occupants” of the right-of-way and further, that Spain-Morrow was an “interested party.” The District Court con-eluded that Wests’ failure to comply with the statutory notice requirement deprived Spain-Morrow and Van Dyken of their redemption rights and declared the Wests’ tax deed void as a matter of law.

STANDARD OF REVIEW

Our review of a summary judgment order is de novo. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. The initial burden is on the moving party to establish that there is no genuine issue of material fact; and once met, the burden shifts to the party opposing the motion to establish otherwise. Thelen v. City of Billings (1989), 238 Mont. 82, 85, 776 P.2d 520, 522.

Did the District Court properly conclude that Spain-Morrow and Van Dyken were occupants of the abandoned railroad right-of-way, and therefore, entitled to notice of the pending issuance of a tax deed?

The procedure for obtaining an ownership interest in land sold for taxes is set forth in Title 15, Chapters 17 and 18 of the Montana Code Annotated. Section 15-18-111(1), MCA, provides:

[RJedemption of a property tax lien acquired at a tax sale or otherwise may be made by the owner, the holder of an unrecorded or improperly recorded interest, the occupant of the property, or any interested party within 36 months from the date of the first day of the tax sale or within 60 days following the giving of the notice required in 15-18-212, whichever is later. [Emphasis added].

Section 15-18-212(4), MCA, provides:

The notice required under subsections (1) and (2) must be made by certified mail, return receipt requested, to each interested party and the current occupant, if any, of the property. [Emphasis added].

The notice must provide “that a tax deed "will be issued to the purchaser or assignee unless the property tax lien is redeemed prior to the expiration of the redemption period.” Section 15-18-212(l)(b), MCA.

Wests contend that subsection (2) of § 15-18-111, MCA, applies in this case, rather than subsection (1). Subsection (2) pertains to “property subdivided as a residential or commercial lot” and does not give a right of redemption to “occupants.” Wests argue that since the parcel in question contains less than 20 acres, it is a subdivision according to § 76-3-103(14), MCA, of the Montana Subdivision and Platting Act, and that since it was used as a railroad right-of-way, it is commercial property. However, we note that the deed which created the right-of-way is dated March 28, 1910, and that the subdivision statute relied on by Wests was not enacted until 1973. Section 76-3-206, MCA, of the same Act provides that it is not applicable to deeds executed prior to July 1, 1974. Furthermore, the railroad abandoned the right-of-way in 1978, and there is no indication in the record that it was ever used for commercial purposes since that date. The only evidence is that it has been used for agricultural purposes. In § 15-l-101(l)(d), MCA, which defines “commercial” when used in connection with taxation, “agricultural lands” are specifically excluded. Therefore, we conclude that the land in question was not a “commercial lot,” and that subsection (1), rather than subsection (2), of the redemption statute applied and required notice to the “occupant of the property.”

Wests also argue that there are material facts in dispute which preclude dismissal of the case by summary judgment. They argue that when they inspected the railroad parcel before receiving the assignment in August 1992, it did not appear to be occupied. In an affidavit, Irene West stated that during the on-site inspection, she observed the right-of-way to be clearly distinguishable from either of the adjoining grain crops, and that the right-of-way consisted of grass and weeds which showed no signs of tilling, cultivation, plowing, or other agricultural activity. She observed no cattle in the field, but noted the irrigation wheel line stretching across the entire field, including the former right-of-way. She stated that in November 1992 she observed that someone had begun to plow the right-of-way parcel.

Spain-Morrow produced affidavits establishing that since 1978 it has removed the old railroad fence and posts and has gradually reclaimed the railroad bed through removal of rock and leveling. They stated that since 1990 Spain-Morrow and Van Dyken have treated the railroad parcel and agricultural parcels as one contiguous field for both crops and pasture. The affidavits also established that the parcel is, and during all relevant times was, enclosed by Spain-Morrow’s fence and was irrigated.

Wests introduced photographs of the property taken during the first week of November 1992, and Spain-Morrow introduced photographs taken on November 11,1992. These photographs clearly show that there were no buildings on the land; that the field, including the railroad parcel, was completely surrounded by fence; that there are cattle grazing on the entire field; and that Spain-Morrow’s irrigation equipment passes over the former right-of-way.

In his affidavit, Van Dyken accounts for the different appearance of the railroad parcel, when observed by Mrs. West, by stating that it was heavily infested with weeds, quack grass, and gravel which prevented high-yield crop production, but that in the years 1991 and 1992, the railroad parcel was seeded in barley. The barley was harvested by raising the header on the combine to leave as much of the underlying quack grass as possible. The parcel was then treated with herbicide to kill the quack grass, and later, cattle were pastured on the whole field.

The District Court found that Spain-Morrow and Van Dyken were occupants of the property during the time Wests’ applied for the tax deed based on the following visible signs:

1. Removal by plaintiffs of the old railroad fences and the leveling of the former railroad bed to integrate with plaintiffs’ adjoining lands;

2. Placement of fencing around the perimeter of the entire parcel, including the abandoned right-of-way;

3. Placement of a wheel-driven irrigation system spanning the entire parcel, including the abandoned right-of-way; and

4. Planting, harvesting, pasturing, and general farming of the abandoned right-of-way in concert with plaintiffs’ adjoining land.

We conclude that these findings were uncontroverted by substantial evidence and do establish occupancy.

Wests rely on our prior decisions in Van Voast v. Blaine County (1946), 118 Mont. 375, 167 P.2d 563, and Shumaker v. Tracy (1953), 126 Mont. 477, 253 P.2d 1053, for the proposition that agricultural use of land alone is insufficient to establish occupancy. However, the facts in those cases are distinguishable from the facts in this case.

In Van Voast, the person who claimed to “occupy” the land for which a tax deed was issued had leased the land for grazing cattle. However, there was evidence that the land was

unenclosed, unimproved, and uncultivated grazing land located in what is called “open country’ where everyone ran their livestock and that the cattle and horses of various persons, including those of plaintiff as well as those of his neighbors, roamed and grazed thereon.

Van Voast, 167 P.2d at 565. While the plaintiff had at one time erected some fencing, it did not completely enclose the subject property, and by the time in question, had deteriorated to the point of being ineffective. Furthermore, by the time in question, the lease pursuant to which Van Voast obtained his right to use the grazing land had expired. By then he had obtained other pasture land for grazing and this Court simply concluded that there was insufficient evidence to establish that he remained in possession of the property after the expiration of his lease. The facts in that case are strikingly different from those in this case where the right-of-way had been integrated with plaintiffs’ ranching operation, had been completely fenced, was irrigated, and was being used for agricultural purposes at the time that notice should have been sent. We conclude that Van Voast is not inconsistent with our holding in this case.

Likewise, in Shumaker, the evidence established that while the property may have been used for grazing, it was not completely fenced and there was no evidence of other agricultural improvements to the land. This Court held that a fence on one side of the property and occasional grazing were not sufficient indicia of occupancy to put the sheriff on notice that the person who claimed to be the occupant was entitled to be notified of the pending tax deed. Improvements to this land, on the other hand, provided clear notice that it was occupied. In fact, nine days after the tax deed was issued in this case, Lawrence West called Louis Spain, president of Spain-Morrow, to notify him he had acquired an interest in the land by tax deed and offered to sell the land to Spain-Morrow for $18,000. He advised Spain that if he was not interested in buying the strip for that amount, he would sell it to some other “s.o.b.” for building a house. Apparently after the tax deed was acquired, West had no doubt that Spain-Morrow would have an interest in continued occupation of the land. The facts in this case are significantly different than those in Shumaker.

We conclude that the uncontroverted facts were sufficient to establish that plaintiffs occupied the land for which a tax deed was issued to Wests at a time when notice was required to the property’s occupants. In recent decisions, we have required that the procedural steps set forth in tax deed statutes be strictly followed. Moran v. Robbin (1993), [261 Mont. 478], 863 P.2d 395, 50 St. Rep. 1417. Because Spain-Morrow and Van Dyken were occupants of the abandoned railroad right-of-way, they were entitled to notice of the impending tax deed. Because Wests failed to give proper notice to Spain-Morrow Ranch, Inc., or Roger Van Dyken, the District Court correctly concluded that the tax deed issued to Wests was void. Because CMC Heartland, the record owner of the property in question, failed to appear and its default was entered, the District Court correctly granted summary judgment to plaintiffs and quieted title in favor of Spain-Morrow Ranch, Inc.

Based upon our previous discussion and conclusions, we also conclude that the District Court correctly denied Wests’ motion for summary judgment.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and GRAY concur.


author: JUSTICE WEBER

text:
    LINDEY’S, INC., a Minnesota Corporation, Plaintiff and Appellant, v. PAT M. GOODOVER and GREG MARTINSEN, Defendants and Respondents.
    No. 93-406.
    Submitted on Briefs January 13, 1994.
    Decided March 28, 1994.
    51 St.Rep. 317.
    264 Mont. 449.
    872 P.2d 764.

      For Appellant: Paul Neal Cooley, Missoula.
    For Respondents: Zane K. Sullivan, Sullivan & Tabaracci, Missoula, (Goodover); Sydney E. McKenna, Patterson, Marsillo, Tornabene, Schuyler & McKenna, Missoula (Martinsen).
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a grant of summary judgment by the Fourth Judicial District Court, Missoula County, to defendant Greg Martin-sen. We affirm.

We consider the following issue on appeal:

Did the District Court err in granting summary judgment to Greg Martinsen?

This cause of action revolves around a boundary dispute concerning various lots located in the Seeley Lake area. Pat Goodover (Goodover) owns Lot 2 of the Seeley Lake Shore Sites. In an attempt to quiet title to this lot, Goodover hired Greg Martinsen (Martinsen) to locate the boundary between Lots 1 and 2. Adjoining Lot 2 are Lots 1 and 3 owned by Lindey’s, Inc. (Lindey’s)

Lindey’s relied on the survey of R. David Schurian (Schurian) which resulted in different boundary lines for Lot 2. Goodover then filed a quiet title action in an attempt to settle the boundary dispute. The trial court accepted Martinsen’s survey of Lot 2 over that of surveyor Schurian, both of whom testified at trial.

The trial court’s decision was affirmed by this Court in Goodover v. Lindey’s (1988), 232 Mont. 302, 757 P.2d 1290 (Goodover I) and again in Goodover v. Lindey’s (1990), 246 Mont. 80, 802 P.2d 1258 (Goodover II). In Goodover v. Lindey’s (1992), 255 Mont. 430, 843 P.2d 765 (Goodover III) we affirmed in part and reversed in part. We vacated a contempt order and reversed an award of attorney’s fees in Goodover v. Lindey’s (1993), 257 Mont. 38, 847 P.2d 699 (Goodover IV).

Subsequent to the trial and appeals, Lindey’s attempted to have Greg Martinsen, who had previously been hired by Goodover, survey Lots 1 and 3. Martinsen refused and Lindey’s hired Gary Johnson, P.L.S., to conduct another survey of the same area plus the south half of Lot 5. According to Lindey’s, Johnson discovered eight original monuments not found by Schurian or Martinsen. Lindey’s then hired Terry Druyvestein to check the Johnson survey.

Based upon its belief that Druyvestein confirmed the Johnson survey, Lindey’s filed suit to have the original decision regarding boundaries in this case set aside and for the court to recognize the eight newly discovered markers. Further, Lindey’s sought to have Martinsen examine the new markers and to change the filing of his own survey concerning Lot 2. Martinsen refused to do either and in Count II of its latest petition Lindey’s alleged that Martinsen was negligent — in not finding these original monuments when he previously surveyed Lot 2 for Goodover and for not revising the retracement survey of Lot 2 to include references to the newly discovered markers.

Martinsen filed a motion for summary judgment as to Count II of Lindey’s complaint and a motion to sever. The District Court granted the motion to sever as well as the summary judgment finding that the issue concerning Lot 2’s boundary was res judicata and also that Martinsen owed no duty to Lindey’s to change his original survey.

Did the District Court err in granting summary judgment to Greg Martinsen?

Summary judgment is appropriate where no genuine issues of material facts exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. It is the burden of the moving party to demonstrate that no genuine issues exist. Portal Pipe Line v. Stonewall (1993), 256 Mont. 211, 845 P.2d 746. Once this burden is met, the burden shifts to the non-moving party to show that issues of fact do exist. Richland National Bank & Trust v. Swenson (1991), 249 Mont. 410, 816 P.2d 1045. Mere denial and speculation are not enough; the non-moving party must show facts sufficient to raise a genuine issue. Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 760 P.2d 57.

Here, Lindey’s argues that Goodover’s expert witness, surveyor Martinsen, was negligent in his initial survey of Lot 2 and again more recently in not reconsidering his original investigation as to the disputed boundary lines. Martinsen argues that the issue is res judicata and that he had no duty to Lindey’s that would engender a claim of negligence. According to Martinsen, the trial court was correct in granting summary judgment.

Once again this action is before the Court in a fourth attempt to relitigate issues in a long, arduous, and protracted boundary dispute. The boundary line in question has been determined. We affirmed the trial court’s determination in prior appeals and no matter what name Lindey’s chooses to give the present action, what it seeks with this fifth appeal is another chance to have the disputed boundary line reviewed.

The District Court determined that the issue of the boundary lines of Lot 2 was res judicata. With that, the court mischaracterizes the issue. But where the result reached by the court is correct, we will uphold it on appeal regardless of the reason given for it. Kephart v. Portman (1993), 259 Mont. 232, 855 P.2d 120. Here, the court was correct that the boundary line had been determined and any re-evaluation of that boundary line was prohibited. The facts of this case more nearly mirror estoppel by judgment.

Estoppel by judgment does not require that the parties to the lawsuit be the same as do the theories of res judicata or collateral estoppel. Estoppel by judgment requires only that: (1) the party adversely affected by estoppel has had a full and fair opportunity to litigate the critical issues; (2) the assertion of estoppel by a stranger to the original judgment would create analogous results in the latter case; (3) the party affected by estoppel has sound reasons why he or she should not be bound by the previous judgment; (4) the previous judgment was the result of thorough litigation; and (5) there was an appeal from the original judgment. Beckman v. Chamberlain (Mont. 1983), 673 P.2d 480, 481.

When we consider the first element within the context of this case, we are satisfied that Lindey’s had a chance to fully and fairly litigate the issue of this boundary line. They provided their own expert at the trial who having surveyed the property testified to his conclusions. Further, element two is satisfied. Any other person not connected with that first trial would be forbidden by law to relitigate the boundary line.

Also, element three’s requirement that the party affected by estoppel have sound reasons why he or she should not be bound by the previous judgment is clearly satisfied here. Lindey’s presents what superficially appears to be legitimate reasons for a change in the previous boundary. Lindey’s argues that it is Martinsen’s professional responsibility to change his initial report for the record. This is based on the assumption that Martinsen’s initial report was in error. However, this has never been legally proven.

Element four requires that the previous judgment came about after thorough litigation. We have considered closely, on several occasions, the record of the trial litigation in this case. There the District Court considered testimony by both Lindey’s and Goodover’s experts, both of whom had surveyed the area in contention. The court chose to give more weight to Martinsen’s testimony. It was within the court’s discretion to so weigh the various testimony at trial.

Element five adds the prerequisite of an already settled appeal from the original decision. Here, Lindey’s appealed the District Court’s decision to this Court in Goodover I and attempted to do so again in Goodover II. In Goodover II we found the issue of the boundary line to be res judicata and would not consider other cleverly disguised arguments concerning it.

The difference between the theory of law in Goodover II and that in the present case is that the parties to the present action are different from those in the original litigation. Yet even though Lindey’s characterizes the current action as one in negligence by a party not mentioned in Goodover I, the current action remains an attempt to relitigate this boundary.

The District Court granted Martinsen’s motion for summary judgment and determined that Martinsen had no legal duty to Lindey’s. In order to present a cause of action for negligence, Lindey’s has to show duty, breach of duty, causation, and injury. Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 745 P.2d 1126. It was Lindey’s burden to prove that as a professional, Martinsen owed him a duty and that as a professional, Martinsen failed to live up to that duty. Merzlak v. Purcell (1992), 252 Mont. 527, 830 P.2d 1278.

Lindey’s asserts, without authority, that Martinsen has a duty to change his filed survey to include the eight relevant primary markers subsequently found by Johnson. The unsubstantiated argument here is that as a surveyor, Martinsen is negligent because he has an ongoing duty to change a survey if it is in error. First of all, the idea that Martinsen’s first survey was error is not a legally determined fact. Further, Lindey’s contends that Martinsen had a general duty to anyone affected by his survey.

As a surveyor, Martinsen’s legal duty was to complete the survey using the best evidence available to him according to accepted rules and regulations. Yellowstone Basin Properties, Inc. v. Ron Burgess (1992), 255 Mont. 341, 843 P.2d 341. The trial court considered Martinsen’s professional sources of rules and regulations and determined that his testimony concerning the survey was more accurate than that of Lindey’s expert. We affirmed this evaluation in Goodover I stating that substantial credible evidence existed for the court’s conclusion. Goodover I, 232 Mont. at 311, 757 P.2d at 1296. The District Court in the present appeal also determined that Martinsen’s evidence at trial was “the best reliable evidence.”

We conclude that Lindey’s has failed to sustain its burden to show that an issue of material facts exists or that Martinsen owed it a legal duty. If no duty exists, there can be no tort of negligence. Thornock v. State (1987), 229 Mont. 67, 745 P.2d 324. We further conclude, that the issue of the boundary line has already been litigated and estoppel by judgment will prevent its re-litigation.

We hold that the District Court did not err in granting summary judgment to Greg Martinsen.

Affirmed.

JUSTICES HARRISON, GRAY, NELSON and HUNT concur.


author: JUSTICE NELSON JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JEFFREY WALDRUP Defendant and Respondent.
    No. 93-476.
    Submitted on Briefs February 10, 1994.
    Decided April 11, 1994.
    51 St.Rep. 344.
    264 Mont. 456.
    872 P.2d 772.

      For Appellant: Joseph Mazurek, Attorney General, Barbara C. Harris, Assistant Attorney General, Helena; Larry J. Nistler, Lake County Attorney, Mitchell A. Young, Assistant Lake County Attorney, Poison.
    For Respondent: Deborah Kim Christopher, French, Mercer & Grainey, Poison.
   JUSTICE NELSON

delivered the Opinion of the Court.

The State of Montana (State) appeals an order of the Twentieth Judicial District Court, Lake County, dismissing the Information filed against the defendant/respondent, Jeffrey Waldrup, (defendant) charging him with four counts of indecent exposure, a felony pursuant to § 45-5-504, MCA. The District Court dismissed the Information on the basis that § 46-11-503, MCA, is an absolute bar to prosecution of the offenses charged in the Information. We hold that § 46-11-503, MCA, does not bar prosecution of the defendant for the four counts of indecent exposure charged in the Information. We therefore, reverse and remand for reinstatement of the charges and further proceedings.

One issue raised by the parties is dispositive in this case: Did the District Court err in granting defendant’s motion to dismiss by applying § 46-11-503, MCA, to the offenses charged in the Information, when those charges were separate transactions from the previous convictions?

On March 31, 1993, the Poison City Police Department charged the defendant with three counts of indecent exposure for incidents occurring March 20, 22, and 31, 1993. The defendant appeared in Poison City Court on April 1, 1993, where the city judge advised the defendant of his rights and the defendant waived those rights. Upon investigating one of the charges at this appearance, the city judge dismissed that charge, and the defendant pled guilty to the remaining two counts of indecent exposure. The defendant was sentenced on April 7,1993, on the two misdemeanor charges to which he had pled.

After defendant had been charged with the above mentioned three counts of indecent exposure, the police continued to investigate previous reports of a man exposing himself. The defendant was a suspect. In pursuing the investigation, the police contacted prior alleged victims to determine if they could identify the defendant as the perpetrator. Four victims were able to identify the defendant as the perpetrator from a photographic lineup. As a result of these identifications, the Lake County Attorney's Office filed an Information on April 16, 1993, charging the defendant with four counts of indecent exposure in violation of § 45-5-504, MCA. The incidents charged in the Information allegedly occurred on September 23,1992, October 15, 1992, March 22, 1993 and in September 1992, and involved four different victims.

According to the terms of § 45-5-504(2)(c), MCA, upon a third or subsequent conviction of indecent exposure, a defendant’s punishment can be enhanced to a felony. Because the defendant had been convicted of two counts of indecent exposure by pleading guilty to the two charges in City Court, he now faces felony charges for the four counts charged in the Information.

The defendant moved to dismiss the charges on the grounds that prosecution was barred under § 46-11-503, MCA, for reasons of fundamental fairness, and because the prosecution violated various constitutional provisions. After considering the parties’ briefs and oral arguments, the District Court granted the defendant’s motion to dismiss by order dated July 8, 1993. The State appeals from that dismissal.

The District Court based its order of dismissal on § 46-11-503, MCA, holding that the statute was absolute bar to the prosecution of the offenses charged in the Information. In applying § 46-11-503, MCA to the facts, the District Court reasoned that: (1) all of the facts constituting the offenses charged in the Information were contained in the Poison City Police files and were therefore known, or should have been known to the prosecutor at the time the subsequent offenses were prosecuted to conviction in the Poison City Police Court; (2) the probable cause which was found to exist at the time the Information was filed existed on the date the defendant was sentenced in City Court; (3) the incidents, which were the basis of the offenses charged in the Information were consummated prior to the incidents which were the basis of the defendant’s City Court convictions; and (4) the Poison City Court convictions of defendant had not been set aside, reversed or vacated.

The District Court did not address whether the incidents charged in the Information were part of the same transaction as the convicted offenses. However, one week after the District Court issued its order of dismissal in this case, we ruled in State v. Berger (1993), 259 Mont. 364, 856 P.2d 552, that § 46-11-503, MCA, applied only to cases involving the same transactions. Not having the benefit of the Berger decision, the District Court erroneously applied § 46-11-503, MCA, to bar the subsequent felony charges on the basis of double jeopardy.

In Berger, we ruled that the 1991 amendments to § 46-11-503, MCA, did not eliminate the “same transaction” requirement from what is now subsection (l)(b) and did not expand the protection of the statute to unrelated offenses. Berger, 856 P.2d at 553. The defendant in Berger, sold dangerous drugs to an informant. The next day, officers executing a search warrant found marijuana in the defendant’s house, and charged him with two counts of possession of dangerous drugs. The defendant pled guilty to the possession charges injustice court. Three months later an Information charging Berger with sale of dangerous drugs was filed in District Court.

Berger appealed the charge, alleging that the 1991 amendments to § 46-11-503, MCA, eliminated the same transaction requirement from § 46-ll-503(l)(b), MCA, and expanded the protection of the statute to unrelated offenses. However, this Court ruled that § 46-11-503, MCA, did not bar prosecution of the defendant for sale of dangerous drugs. “Neither the legislative history nor the Commission Comments reveal that the legislature intended to substantively change the application of § 46-11-503, MCA, from prosecutions resulting from the same transaction to unrelated prosecutions.” Berger, 856 P.2d at 554.

In the instant case, the defendant has been charged with four separate counts of indecent exposure. The incidents are not part of the same transaction, as they allegedly occurred on four different dates and involve four different victims. The term “same transaction” is defined at § 46-1-202(23), MCA (1991), as follows:

“Same transaction” means conduct consisting of a series of acts or omissions that are motivated by:
(a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective; or
(b) a common purpose or plan that results in the repeated commission of the same offense or effect upon the same person or the property of the same person.

The defendant allegedly exposed himself to different victims on different dates in each of the charged incidents. Therefore, the incidents cannot be part of a plan resulting in the repeated commission of the same offense against the same person.

Because § 46-11-503, MCA, applies only to prosecutions arising from the same transaction, this statute does not bar prosecution of the four counts of indecent exposure. Therefore, we reverse the District Court’s decision, and remand for reinstatement of the charges and further proceedings.

Defendant raised other arguments on appeal. Inasmuch as the District Court did not address those other arguments and inasmuch as the defendant has not been convictedrof or sentenced on any of the four charges at issue here, defendant’s arguments are premature. We decline to address those arguments at this time.

Reversed and remanded.

JUSTICES HARRISON, GRAY and WEBER concur.

CHIEF JUSTICE TURNAGE did not participate.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

In its opinion, the majority observes that the District Court did not have the benefit of the decision in State v. Berger (1993), 259 Mont. 364, 856 P.2d 552, and therefore, misapplied § 46-11-503, MCA. However, the District Court applied § 46-11-503, MCA, correctly. It is the majority who misapplied that section in Berger by adding language to the statute which the Legislature did not include simply because the majority thinks it ought to be there.

The majority erroneously concludes that when, in 1991, the Legislature removed the “same transaction” language from § 46-11-503, MCA, it did not mean to do so, and therefore, the majority, in its wisdom, has restored that language to the statute. In doing so, the majority has, in the Berger decision, and again in this case, greatly exceeded its judicial authority. It is Berger which should be reversed — not the District Court.

The relevant portion of § 46-11-503, MCA, is plain and clear on its face. It provides that:

(1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses lie in a single court, a prosecution is barred if:
(b) the former prosecution resulted in a conviction that has not been set aside, reversed, or vacated ....

As pointed out in my dissent to Berger, the majority held otherwise by inserting into § 46-11-503(1), MCA, the requirement that the offenses be part of the “same transaction.” In doing so, the majority violated a cardinal principle of statutory construction. Section 1-2-101, MCA, provides as follows:

In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.

While once again ignoring the plain language of the statute, the majority has based its decision on its contention that the Legislature did not mean to say what it clearly did say when it amended § 46-11-503, MCA. Therefore, the majority ignores the plain language of that section in favor of what it concludes was the Legislature’s intent. However, in doing so, the majority has violated a second rule of construction which we have previously articulated in our decisions.

In White v. White (1981), 195 Mont. 470, 473-74, 636 P.2d 844, 845-46, we held that:

The intention of the legislature must first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation. Haker v. Southwestern Railway Co. (1978), 176 Mont. 364, 578 P.2d 724; Montana Assn. of Underwriters v. State of Montana (1977), 172 Mont. 211, 563 P.2d 577. Where the language of a statute is plain, unambiguous, direct and certain there is nothing left for the court to construe. Doull v. Wohlschlager (1963), 141 Mont. 354, 377 P.2d 758; National Electric Contractors Assn. v. State Board of Education (1960), 137 Mont. 382, 352 P.2d 258; Vaughn & Ragsdale Co. v. State Board of Equalization (1939), 109 Mont. 52, 96 P.2d 420. The function of the Court in construing a statute is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. In short, it is simply the duty of the Supreme Court to construe the law as it finds it. Dunphy v. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660, and cases cited therein.

In State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333, we held that “[t]here is simply no reason for the use of legislative history to construe a statute where the language is clear and unambiguous on its face.”

Even more recently, in Dorn v. Board of Trustees of Billings School District (1983), 203 Mont. 136, 144, 661 P.2d 426, 430, we held that:

The primary tool for ascertaining intent is the plain meaning of the words used. The Court properly refers to legislative history only when intent cannot be determined from the content of the statute. The instant statute does not necessitate such an inquiry.

In this case, defendant was charged on March 31,1993, with three counts of indecent exposure which were alleged to have occurred on the dates of March 20, 22, and 31, 1993. However, on the date that he was charged with these three offenses, the Chief of Police had already received complaints regarding the four offenses with which defendant was subsequently charged on April 16,1993. An investigation had been conducted; defendant’s description had been given; and the Chief of Police admitted that based on the information in the Police Department’s investigative files, and defendant’s responses to questioning, he strongly suspected that defendant had committed the previous offenses. The only additional evidence that was obtained by the State prior to charging defendant with the additional four offenses was the victims’ positive identification in response to a photographic lineup. However, even this information was obtained by April 5, 1993, two days before defendant was sentenced on the original three charges. Therefore, I conclude, as did the District Court, that all of the necessary elements were present for the application of § 46-11-503, MCA:

1. All of the offenses which were charged on April 16, 1993, were known to the State when defendant was charged with three separate offenses on March 31, 1993;

2. There was probable cause to file all charges against defendant when the original three charges were filed, and at least before defendant was sentenced for the two charges to which he pled guilty;

3. All of the offenses which are the subject of the April 16, 1993, information were committed prior to the charges which were filed on March 31; and

4. Because a third offense of indecent exposure is punishable as a felony, jurisdiction for all offenses, if filed concurrently, would have been in the District Court.

This case is a perfect example of the reason why § 46-11-503, MCA, was enacted and should be applied as written. Section 45-5-504, MCA, provides that a first conviction of indecent exposure is punishable by a fine not to exceed $500 and imprisonment for not more that six months. A second conviction is also punishable as a misdemeanor. The fine shall not exceed $1000, and the term of imprisonment shall not be more than one year. However, subsection (c) provides that a third conviction is punishable by a fine of up to $10,000 and imprisonment for a period of up to five years, or both.

In this case, defendant was taken before the City Court without an attorney. It is true that his rights were explained to him and that he waived his right to be represented. However, the only consequences of his waiver and plea that were ever explained to him were the potential misdemeanor penalties. Defendant pled guilty to two counts of indecent exposure, not knowing that those two convictions would be the predicate for felony charges based on conduct already committed and reported, but not yet charged. In other words, whether it was by design or inadvertence on the State’s part, defendant was sandbagged.

Nine days after his plea entry to two misdemeanor charges, the State brought its motion for leave to file an information alleging four incidents of indecent exposure, all of which occurred prior to defendant’s unrepresented guilty plea, and the consequences of which could be a $40,000 fine and 20 years in prison. As pointed out, the unfairness of this whole process was recognized by the District Court, when in response to the State’s argument that defendant waived his rights in the City Court, it pointed out that:

THE COURT: But he didn’t ask for an attorney when he was charged with two misdemeanors. But because he pled guilty to the two misdemeanors, he’s now looking at 20 years in the Montana State Prison?
MR. YOUNG: But, your Honor, isn’t that the same for anyone who comes into the Court and pleads guilty to a domestic abuse, and then later is charged with a third offense?
THE COURT: If the third offense occurs later. But if he committed all three at the time he comes in and pleads guilty to two — and your file is sitting there with all the information about the third one — shouldn’t you be required to charge him with all three at the same time so he knows what he is faced with? That’s the Defendant’s argument, is that the police file contained every bit of information that is now in this felony file. The only difference was that the Sergeant drove out with the photo I.D. after he had entered the guilty plea to two offenses, and those victims then identified this Defendant.

The majority was wrong when in Berger it added language to a statute in order to accomplish what the majority concluded was the appropriate result. This case clearly illustrates the error of, and potential for unfairness from, the majority’s decision. The majority should admit its mistake and affirm the order of the District Court.

For these reasons, I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissent.