Case Information
*1 93-365 NO.
IN THE SUPREME COURT OF THE STATE OF MONTANA
ROGER HOLTMAN,
Plaintiff and Appellant,
-vs- 4-G's PLUMBING & HEATING, INC., .?R S-1$)4 a corporation, &/ J&f BL
Defendants and Respondents. CLERK OF SLjPREME COURT ="A-E OF iMoi\iTANA District Court the Fourth Judicial District, APPEAL FROM: In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles 3. Tornabene; Patterson, Marsillo, Schuyler & McKenna, Missoula, Montana Tornabene, For Respondent:
Ronald A. Bender; Worden, Thane & Haines, Missoula, Montana December 16, 1993
Submitted on Briefs: Decided: April 5, 1994 Filed:
Justice Karla M. 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 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 iudicata and collateral estoppel. Holtman asserts error only in the court's application the doctrines to his asbestos contamination claim. Because all of the elements of res 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 he discovered a partially Holtman returned to his condominium, system and alleged contamination. installed heating Holtman refused to allow further installation of the system.
The Association filed a complaint seeking an injunction require 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. *3 He alleged the Association had deprived him of property rights, invaded his privacy, and contaminated his condominium 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 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 invasion of privacy, trespass, and asbestos contamination. The Association moved for summary judgment, arguing the claims were barred by res iudicata. 4-G's Plumbing joined the Association's motion and filed a separate motion for summary judgment relying on both res iudicata and collateral estoppel. The District Court granted summary judgment for each defendant by separate order, dismissing claims against under res iudicata and claims against 4-G's Plumbing under and collateral estoppel. Holtman appeals only from the summary adjudication favor of 4-G's Plumbing.
Our standard for reviewing a grant of summary judgment same as that used by the district court. Emery v. Federated Foods (Mont. 1993), 863 P.2d 426, 431, 50 St.Rep. 1454, 1456. Initially, we determine whether there is an absence of genuine issues material fact. Minnie v. City of Roundup (1993), 257 Mont. 429, *4 431, 849 P.2d 212, 214. The party moving for summary judgment has 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, 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 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 established, we determine whether the moving party is entitled law. Minnie, 849 P.2d at 214. Here, judgment as a matter of District Court concluded 4-G's Plumbing was entitled summary judgment under the doctrines of res iudicata 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 iudicata is grounded on the principle litigation must at some point come to an end. Orlando v. Prewett (1989) r 236 Mont. 478, 481, 771 P.2d 111, 113. It bars 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 yes 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. Nor-west Capital Mgmt. (Mont. 1993), 859 P.2d 984, 987-88, 50 St.Rep. 960, 962.
Holtman asserts that his "asbestos contaminationl' claim alleges negligent workmanship on the part of 4-G's Plumbing in of the heating system. Because his prior counterclaim against contained no such claim, he argues none of the elements of is met. 4-G's Plumbing urges asserting the claims advanced in application of the doctrine, complaint do not contain an allegation negligent workmanship, but are identical those raised prior counterclaim.
Holtman's asbestos contamination reads as follows: That said defendant, 4-G's Plumbing & Heating, Inc., the process installing said hot water heating system disturbed older plumbing pipes, in Plaintiff's home, which were contaminated asbestos, resulting contamination of Plaintiff's home and personal property contained therein.
This asbestos 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 rule on an issue that was not presented the District Court. Goodover v. Lindey's, Inc. (1992), 255 Mont. 430, 441, 843 *6 P.2d 765, 772. Thus, we address the applicability of res iudicata to Holtman's asbestos contamination to the extent that claim is read to allege negligent workmanship by 4-G's Plumbing the heating system.
The "parties or their privies" element of dispositive here. It is undisputed that 4-G's Plumbing was not a party to the prior litigation. The District Court determined, however, 4-G's Plumbing and 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 determine whether 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" 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 law as to be identified 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 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 Holtman's complaint; nor did it submit any depositions, answers interrogatories, admissions or affidavits to support its motion for summary judgment. Thus, it did not provide any evidentiary basis *7 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 prior counterclaim, the order striking it with prejudice, and the findings and rulings contained in the court file relating to previous litigation. Therefore, we focus on whether these materials form a sufficient for summary judgment on the issue basis 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 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 Plumbing with regard its workmanship in the of the Thus, the court's conclusion that the Association heating system. and 4-G's Plumbing are privies, in the context the asbestos contamination claim, incorrect.
4-G's Plumbing attempts to establish a shared legal interest the asbestos claim the extent alleges negligent workmanship by arguing it acted as an agent An agency the Association installing the heating system. relationship would exist if controlled or had the right to control the physical conduct of 4-G's Plumbing *8 of the heating system. See Eccleston v. Third Jud. (1989), 240 Mont. 44, 51-52, 783 P.2d 363, 368, quoting Dist. Ct. Restatement (Second) of Agency, 5 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 it was a privy regard to the asbestos contamination claim.
4-G's Plumbing advances two other arguments, loosely tied the doctrine res iudicata, bar Holtman's Based on its assertion that Holtman could claim. have raised in the prior proceeding, 4-G's Plumbing argues that he is barred by the doctrine from doing so here.
It is true precludes claims that could have been raised 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, The preclusive effect of res iudicata, however, 113. applies only to claims raised in subsequent lawsuits between parties the original action or their privies, reflecting "parties or their privies" element of the doctrine. &.&, 783 P.2d at 386; Orlando, 771 P.2d at 113. Thus, res iudicata's preclusive effect as to claims not actually litigated does not apply 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 the prior *9 litigation. Rule 12(b), M.R.Civ.P., requires that every defense to a claim, counterclaim or third-party claim be raised responsive pleading. Holtman's claims against 4-G's Plumbing were not a defense asserted by the Association claims prior litigation. Thus, he was not required by Rule 12(b), M.R.Civ.P., file his claims against 4-G's Plumbing that action.
4-G's Plumbing has not demonstrated that the "parties or their privies" element of res iudicata is met. We hold the District Court erred in applying res iudicata to bar Holtman's claim against 4-G's Plumbing. Collateral Estoppel
Again focusing entirely on the asbestos contamination claim, Holtman asserts the District Court erred in concluding that 4- G's Plumbing was entitled to summary judgment under the doctrine collateral estoppel. He contends that collateral estoppel does not bar the because the issue of 4-G's Plumbing's negligence was not raised in his prior counterclaim.
Collateral estoppel, sometimes referred as issue While bars preclusion, is a form of res iudicata. 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 The doctrine has three Mont. 292, 294, 824 P.2d 1004, 1005. *10 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 a party 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 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 previous litigation since Holtman's counterclaim was dismissed on legal grounds prior the receipt of any evidence on the claim.
It true that Holtman's prior counterclaim against Association arose from the same events as his claim against 4-G's Plumbing and, like his present claim, sought damages for alleged contamination. Holtman's asbestos-related claim against in the prior litigation was as follows:
[The Association] did, without the knowledge or consent terminate heating service [Holtman], *11 [Holtman's] unit sometime between March, 1988 and February 5, 1989, which resulted in certain waterlines freezing, breaking and creating water leaks [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 unsafe rendered [Holtman's] unit damaged, and uninhabitable.
When this claim is compared to Holtman's
claim against 4-G's Plumbing set forth above, it is clear that the identical issue, or precise question, raised the present case was not raised and decided in the earlier litigation involving 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 this fashion, it is clear 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 read as an allegation of negligence against resulting in asbestos contamination, that claim did not raise issue of 4-G's Plumbing's negligent workmanship in the of the new heating system. A negligence action is premised, first, on the existence of a duty. Nautilus Ins. v. First National Ins. (1992) I 254 Mont. 296, 299, 837 P.2d 409, 411. 4-G's Plumbing has not established its legal duties to Holtman in installing new heating system were co-extensive the duties owed him by the Association.
We conclude the "identical issue" element of collateral before us. Therefore, estoppel is not met under the circumstances we hold the District Court erred in concluding that Holtman collaterally estopped from asserting the asbestos claim and in granting summary judgment favor of 4-G's Plumbing on that claim.
Reversed and remanded for further proceedings consistent with ^ this opinion. !
We concur:
April 5, 1994 CERTIPICATE OF SERVICE I hereby certify that the following certified order was sent by United States mail, prepaid, to the following named:
Charles J. Tornabene
Patterson, Marsillo, Tomabene, Schuyler & McKenna
103 So. 5th East
Missoula, MT 59801
Ronald A. Bender, Esq.
Worden, Thane & Haines, P.C.
P.O. Box 4747
Missoula, MT 59806
John R. Gordon, Esq.
Reep, Spoon & Gordon, P.C.
P.O. Box 9019
Missoula, MT 59807-9019
ED SMITH CLERK OF THE SUPREME COURT