Fiscus v. Beartooth Elec. Coop., Inc.

• Decision Date: 26 February 1979
• Docket Number: No. 14301,14301
• Citation: 36 St.Rep. 333,180 Mont. 434,591 P.2d 196
• Parties: Clayton R. FISCUS, Plaintiff and Appellant, v. BEARTOOTH ELECTRIC COOPERATIVE, INC., Defendant and Respondent.
• Court: Montana Supreme Court

Page 196

591 P.2d 196

180 Mont. 434

Clayton R. FISCUS, Plaintiff and Appellant, v. BEARTOOTH ELECTRIC COOPERATIVE, INC., Defendant and Respondent.

No. 14301.

Supreme Court of Montana.

Submitted Dec. 12, 1978.

Decided Feb. 26, 1979.

Berger, Anderson, Sinclair & Murphy, Billings, Richard W. Anderson (argued), Billings, for plaintiff and appellant.

Hutton & Cromley, Billings, Brent R. Cromley (argued), Billings, for defendant and respondent.

HARRISON, Justice.

Plaintiff-appellant, Clayton R. Fiscus, brings this matter to this Court, asking that, because the holding in Fiscus v. Beartooth Electric (1974), 164 Mont. 319, 522 P.2d 87, has been overruled by Piper v. Lockwood Water Users Ass'n (1978), Mont., 573 P.2d 646, 35 St.Rep. 9, 13, that he now be given his day in court. The immediate events giving rise to this appeal are as follows.

On June 10, 1974, pursuant to this Court's decision rendered in Fiscus v. Beartooth Electric, supra, the District Court entered summary judgment in favor of Beartooth and against Fiscus.

The case lay dormant on its thus dismissed status until February 3, 1978, when Fiscus moved to vacate the judgment and dismissal. Briefs were filed for and against the motion in the District Court, the Honorable Charles Luedke presiding. The court made no ruling on the motion, and on March 30, 1978, Fiscus' motion became "deemed denied" under Rule 59(d) and (g), M.R.Civ.P. Fiscus then filed this appeal.

For the fact situation, see Fiscus v. Beartooth Electric, supra.

The issue at this point is a narrow procedural one, namely, whether the doctrine of either "law of the case" or Res judicata bars appellant from pursuing a claim against Beartooth Electric.

Appellant argues that he has never had his claim adjudicated and that he has never been in court to have such made, on the merits, the factual and the legal determinations of the case. He argues that he has been procedurally barred by order of this Court dated 1974.

Appellant acknowledges that "the law of the case" and Res judicata are the legal principles generally applicable to bar those attempts by a dissatisfied litigant to reopen a matter which has been decided. He argues that all general rules, however, have their exceptions, and that under the circumstances of this case, they should be allowed under the exception of the general rule.

Black's Law Dictionary (Rev. 4th Ed., 1968), defines Res judicata thus:

"A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment . . . Rule that final judgment or decree on merits by court of competent jurisdiction is conclusive of rights of parties or their privies in all later suits on points and matters determined in former suit . . . And to be applicable, requires identity in thing sued for as well as identity of cause of action, of persons and parties to action, and of quality in persons for or against whom claim is made . . . The sum and substance of the whole rule is that a matter once judicially decided is finally decided . . ."

In Western Montana Production Credit Ass'n v. Hydroponics, Inc. (1966), 147 Mont. 157, 161, 410 P.2d 937, 939, this Court, citing Moore's Federal Practice, said:

" 'The term res judicata is often used to denote two things in respect to the effect of a valid, final judgment: (1) that such judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the same parties or those in privity with them, upon the same claim or demand; and (2) that such a judgment constitutes an estoppel, between the same parties or those in privity with them, as to matters that were necessarily litigated and determined although the claim or demand in the subsequent action is different. Under the first proposition the judgment operates as a bar * * *. Under the second proposition the judgment prevents the parties from relitigating only those matters that were determined.' 1-B Moore F.P. 621-622, § 0.405.

"The first proposition is properly called res judicata while the second is called collateral estoppel."

As to the concept "law of the case", Black's definition includes the following:

"The decision, judgment, opinion or rulings on former appeal or writ of error become 'law of the case.' . . .

"The doctrine expresses practice of courts generally to refuse to reopen what has been decided . . . (I)t expresses the rule that final judgment of highest court is final determination of parties' rights . . .

"The doctrine is generally deemed applicable whether former determination is right or wrong. . . . But some cases hold that doctrine is inapplicable where prior decision is unsound, . . . or incorrect principles were announced or mistake of fact was made on first appeal . . ."

"Law of the case" has been explained by the Montana Court thus:

" 'The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal; and this, although upon its subsequent consideration the Supreme Court may be clearly of opinion that the former decision is erroneous. * * * it is a final adjudication from the consequences of which this court may not depart, nor the parties relieve themselves (citing cases).' Carlson v. Northern Pac. R. Co., 86 Mont. 78, 281 P. 913, 914.

" 'Whether the opinion is right or wrong, it is the law of the case, was binding upon the trial court, and is binding upon us.' Anderson v. Border, 87 Mont. 4, 285 P. 174, 176." Apple v. Edwards (1949), 123 Mont. 135, 139-40, 211 P.2d 138, 140.

In contravention of the rigid standards articulated above, appellant cites the court to Perkins v. Kramer (1948), 121 Mont. 595, 600, 198 P.2d 475, 477, for the following pertinent language:

"The doctrine of res judicata, if applicable, does not prevent the court from correcting manifest error in its former judgment. Thus in Cluff v. Day, 141 N.Y. 580, 36 N.E. 182, 183, the court said. 'There is no iron rule which precludes a court from correcting a manifest error in its former judgment, or which requires it to adhere to an unsound declaration of the law. It may, for cogent reasons, reverse or qualify a prior decision, even in the same case. But the cases in which this will be done are exceptional, and the power should be sparingly exercised.'

"When the prior decision is by a divided court, as here, . . . the court will the more readily depart from it, if erroneous. (Citation omitted.)"

In Perkins, the defendants contended that the plaintiff was precluded from maintaining his action, because of the holding in a previous case, which was described as being "an appeal from the judgment entered in the trial court after reversal" by the state Supreme Court. 121 Mont. at 597-98, 198 P.2d at 476. The Court acknowledged that the question presented there was the same as that presented before, but said that it had not precluded plaintiff from relief in the earlier case. 121 Mont. at 598, 198 P.2d at 476.

Appellant also directs our attention to a recent case of this Court, State v. Zimmerman (1977), Mont., 573 P.2d 174, 34 St.Rep. 1561. We believe that he does so incorrectly because the above case is a criminal matter and the principles applying thereto cannot always be conveyed straight across the board and applied to a civil proceeding. The problem there involved related to double jeopardy, a legal concept decidedly applicable to criminal cases only. While we cited a number of civil cases in Zimmerman, in our brief discussion of the "law of the case", relying on Zimmerman is in this case ill-advised. The recitation in those cases concerning the application of the exception to the general rule is opposite to this case. The exception is that the general rule will not be applied in those cases where reversal was based on an unrelated matter. Here the issue is not unrelated. Thus the exception should not apply.

We find that Perkins is controlling in this case and that the District Court did not err in its ruling.

Next appellant argues that his constitutional right of access to the courts has been denied him. 1889 Mont. Const., Art. III, § 6, in effect at the time that he suffered his injuries. However, he does not develop this claim with case law or other authority and we find no merit to it.

Recognizing that his position in this appeal is probably defective under the Montana law on the "rule of the case" appellant argues that under federal decisions interpreting Rule 60(b), which is identical to Montana's Rule 60(b), different solutions of the case could be arrived at. Appellant, in support of his argument, cites a number of federal cases, which we will discuss individually in this opinion.

Klapprott v. United States (1949), 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, is a naturalization case and does not in our opinion meet the situation here where an appellate court overruled a later decision. There the court simply held that the plaintiff had been so extraordinarily victimized by the government that the federal rule 60(b)(6) would be invoked to cure that outrage where the government had failed to provide evidence required in a matter of law in the denaturalization process. There is no question that the plaintiff came under and deserved to come under Rule 60(b)(6). This is not a case that supports the appellant's position here which is whether to change the decisional law several years after a final judgment was entered against him and whether this constitutes a prerequisite of "any other reason justifying release from judgment".

Appellant next cites Ackermann v. United States (1950), 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207. This case like Klapprott stands for the position that only in an extraordinary case should Rule 60(b) be granted....