Duthie v. Lewiston Gun Club

• Decision Date: 03 March 1983
• Docket Number: No. 13077,13077
• Citation: 104 Idaho 751,663 P.2d 287
• Parties: J. Earl DUTHIE and Ernestine D. Duthie, husband and wife, and J. Earl Duthie as Guardian of the Person and Estate of Ernestine D. Duthie; John D. Duthie and Rosemary Duthie, husband and wife, Plaintiffs-Appellants, v. LEWISTON GUN CLUB, Its President, Alvin A. Connerley; Its Board of Directors, Robert Gregg, Raymond O'Connor, James Clayton and Roger Booth, individually, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 287

663 P.2d 287

104 Idaho 751

J. Earl DUTHIE and Ernestine D. Duthie, husband and wife, and J. Earl Duthie as Guardian of the Person and Estate of Ernestine D. Duthie; John D. Duthie and Rosemary Duthie, husband and wife, Plaintiffs-Appellants, v. LEWISTON GUN CLUB, Its President, Alvin A. Connerley; Its Board of Directors, Robert Gregg, Raymond O'Connor, James Clayton and Roger Booth, individually, Defendants-Respondents.

No. 13077.

Supreme Court of Idaho.

March 3, 1983.

Opinion on Denial of Rehearing

May 23, 1983.

James W. Givens, Lewiston, for plaintiffs-appellants.

Wynne M. Blake, of Blake, Feeney & Clark, Lewiston, Michael E. McNichols, Orofino, for defendants-respondents.

DONALDSON, Chief Justice.

This action concerns the right of the defendants-respondents, Lewiston Gun Club, its president and its board of directors, (hereinafter the Gun Club), to disconnect the plaintiffs-appellants, Duthies', waterline from the Gun Club's waterline.

The Gun Club installed at its own expense approximately 5,000 feet of domestic and irrigation water lines to supply water to property it leased from the City of Lewiston and Nez Perce County. These lines connected to the Lewiston Orchards Irrigation District pipeline. The irrigation district contracted to sell surplus water to the Gun Club. Such contracts are routinely given to users located outside the irrigation district.

Plaintiffs-respondents, John and Rosemary Duthie, started planning in 1971 to build a home on the property of John's parents, plaintiffs-respondents, J. Earl and Ernestine Duthie. This property is located near the Lewiston Gun Club. Construction of the home was started in November of 1972. In the fall of 1972, John Duthie contacted the then president of the Lewiston Gun Club, Zane Clinton, and requested permission to hook up to the Gun Club's domestic water line. Conflicting testimony was presented at the trial of the second action regarding this request. John Duthie testified that permission was granted and that his right to use the waterline was not limited in any fashion. Zane Clinton, who was called as a witness by Duthie, testified that the Gun Club's board of directors granted permission to hook up to the line "on a temporary basis until either he got water from the city or some other source." Additionally, three members of the then board of directors testified at the trial of the second action that they believed at the time the request was granted that the hookup was going to be only temporary.

Following the granting of permission, the Duthies constructed the line in March of 1973 and obtained a surplus water contract from the irrigation district. The Duthies used the Gun Club's waterline and paid their water bills directly to the irrigation district until their line was cut off by the Gun Club in October of 1977.

In 1975, the Gun Club brought the first action, Case No. 29669, in the Second Judicial District Court of the State of Idaho against the Duthies alleging that the Duthies had trespassed upon the Gun Club's property by hooking up to the Gun Club's waterline and were thereby unjustly enriched. The Gun Club sought $2,000 as a contribution to construction cost plus the sum of one-third ( 1/3) of all maintenance bills "for so long as the defendants [Duthies] are connected" to the Gun Club's line or, in the alternative, an order requiring the Duthies to disconnect their waterline from the Gun Club's waterline. On January 23, 1976, the trial court granted with prejudice the Duthies' motion for involuntary dismissal pursuant to I.R.C.P. 41(b) based on its findings that the Duthies "had permission" to hook up to the Gun Club's waterline and, therefore, were not trespassers. The Gun Club was capable of granting a license at least to the extent of its interest in the property as a lessee.

In the spring of 1976, Al Connerley, a member of the then Gun Club's board of directors discussed with the club's attorney the possibility of getting the Duthies to contribute to maintenance of the waterline. His attorney, at Connerley's request, contacted the Duthies' attorney and requested maintenance contribution. The Duthies refused. On August 2, 1977, the Gun Club's board of directors decided that the Duthies' waterline should be cut off. On October 26, 1977, Al Connerley cut and capped the Duthies' waterline precipitating this second suit.

After the waterline was cut and capped the Duthies filed a complaint and sought and received a Temporary Restraining Order from the district court. In due course, the Gun Club filed a motion to dissolve the temporary restraining order and it was granted. The Duthies' original complaint in the second action and the clerk's certificate on appeal also named as defendants the Lewiston Orchards Irrigation District, the City of Lewiston, Nez Perce County (not listed on Clerk's Certificate on Appeal), and the United States Bureau of Reclamation. The trial court granted the City of Lewiston's and Nez Perce County's motions to dismiss. The Lewiston Orchards Irrigation District, the City of Lewiston, Nez Perce County, and the U.S. Bureau of Reclamation did not participate in the trial of the second action. Additionally, the Duthies' Notice of Appeal did not indicate that notice was given to any of them.

Before the second trial began the district court heard and denied cross-motions for summary judgment. The subject of the Duthies' motion for summary judgment was the res judicata effect of Case No. 29669 on the instant case. The Duthies argued that the Gun Club should be precluded from claiming in the second action that the license was revoked because that issue of revocation should have been raised in the first action. In reviewing this issue, the trial court held that res judicata applies only to issues raised by the pleadings. After a review of the complaint and answer in Case No. 29669, the trial court found that nothing in the pleadings raised the issue of "use or continued use of the waterline in question." The motions for summary judgment were denied.

Following trial, the court found that the Gun Club was not estopped from revoking the Duthies' license and was entitled to do so. The Duthies appealed.

Firstly, on appeal, the Duthies contend that this issue of res judicata was erroneously decided. Even though we disagree with the trial court's finding that res judicata applies only to issues raised by the pleadings, where an order of the lower court is correct but based upon an erroneous theory, the order will be affirmed upon the correct theory. Foremost Insurance Co. v. Putzier, 102 Idaho 138, 627 P.2d 317 (1981).

Concerning when res judicata applies, this Court stated in Intermountain Food Equipment Co. v. Waller, 86 Idaho 94, 383 P.2d 612 (1963) that,

"We think the correct rule to be that in an action between the same parties upon the same claim or demand, the former adjudication concludes parties and privies not only as to every matter offered and received to sustain or defeat the claim, but also as to every matter which might and should have been litigated in the first suit." Id. at 98, 383 P.2d at 615 (quoting Joyce v. Murphy Land & Irrigation Co., 35 Idaho 549, 553, 208 P. 241, 242 (1922)).

Therefore, not raising the issue in the pleadings is not grounds for denying the motion because following Intermountain Food Equipment, res judicata applies to every matter which might and should have been litigated in the first suit whether or not it was raised in the pleadings. However, before reaching the issue of whether the matter might and should have been litigated in the first suit, it must first be established that the second action is between the same parties upon the same claim or cause of action.

The second suit was between the same parties and concerning what constitutes the same claim or cause of action this Court recently stated that, "The 'sameness' of a cause of action for purposes of application of the doctrine of res judicata is determined by examining the operative facts underlying the two lawsuits." Houser v. Southern Idaho Pipe & Steel, Inc., 103 Idaho 441, 446, 649 P.2d 1197, 1202 (1982). (citing Restatement (Second) of Judgments, § 61, Comment a (Tent. Draft No. 1, 1973)).

Even though two actions may arise out of the same operative facts between the same parties this Court has also stated that "[h]owever, sometimes a single trial covering all aspects of the case will be neither desirable nor feasible. Evidence bearing upon one aspect of a case may be unduly prejudicial with respect to another. Or certain matters may be ripe for trial while consideration of others would be premature." Heaney v. Board of Trustees of Garden Valley School District No. 71, 98 Idaho 900, 903, 575 P.2d 498, 501 (1978).

In this case facts occurred subsequent to the first trial that led to the filing of the second suit, i.e., the cutting and capping of the waterline. Therefore, even though the same facts may be used to determine whether the license was revocable as were used in the first action to determine whether a license existed, because facts occurred subsequent to the first trial that triggered the filing of the second suit, we hold that the issue of revocability was not ripe for trial in the first case, but rather, was premature until the license was actually revoked. Heaney, supra. Therefore, we uphold the trial court's decision that res judicata does not bar the raising of the issue of revocability in the second suit.

The remaining assignments of error have been reviewed and the Court finds they are without merit.

Judgment affirmed.

Costs to respondents.

BAKES, J., McFADDEN, J., (Ret.), and SCOGGIN, J., Pro Tem, concur.

BISTLINE, Justice, dissenting.

Eighteen months ago in sublime naivete joining the (now withdrawn) Court's opinion, I paused to add that "[t]here is an area where this Court over the years has been consistent and steadfast, and that is in upholding its doctrine of res...