Kullick v. Skyline Homeowners Ass'n, Inc.

Decision Date12 May 2003
Docket NumberNo. 02-679.,02-679.
Citation316 Mont. 146,69 P.3d 225,2003 MT 137
PartiesRonald H. KULLICK and Susan J. Kullick, Plaintiffs and Appellants, v. SKYLINE HOMEOWNERS ASSOCIATION, INC., Theodore O. Maxwell and Collette Maxwell, Lynn Hellman and Patricia Hellman, Rick B. Rocheleau and Karla L. Rocheleau, Deborah A. Peterson, Jacqueline J. Kearns, James H. Walsworth, Bruce D. Jones and Roberta F. Jones, Earl Vercruyssen and Barbara Vercruyssen, James D. Mildenberger and Ann G. Mildenberger, Judith V. Stauter, Charles H. Recht and Elizabeth M. Recht, Michael A. Gray and Debra A. Gray, Trustees of the 1998 Gray Family Trust, Dated August 19, 1998, Gary L. Smith and Racheal E. Smith, Brett G. Mildenberger and Kellie D. Mildenberger, Jeffrey S. Johnson and Robin L. Johnson, Pasquale A. Santarone, Harold Mildenberger, Art A. Gussa and Betty I. Gussa, as Trustees of the Art A. and Betty I. Gassa Family Revocable Living Trust u/a/d February 4, 1997, Defendants and Respondents.
CourtMontana Supreme Court

Jeffrey B. Hays, Hays and Hayes, Hamilton, Montana, For Appellants.

Martin S. King, Worden, Thane & Haines, Missoula, Montana, For Respondents.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Ronald and Susan Kullick appeal from the opinion and order of the Twenty-First Judicial District Court, Ravalli County, granting summary judgment to Skyline Homeowners Association. We affirm.

¶ 2 The following issues are raised on appeal:

¶ 3(1) Whether the District Court correctly determined that the Kullicks do not have an implied easement by existing use over Skyline Drive;

¶ 4(2) Whether the District Court correctly determined that the Kullicks do not have an implied easement by necessity over Skyline Drive; and

¶ 5(3) Whether Skyline Homeowners Association is entitled to costs and attorney fees pursuant to Rule 32, M.R.App.P.


¶ 6 This appeal concerns the Kullicks' claim that they hold an easement for ingress and egress over and across Skyline Drive, a road located in the Skyline Development east of Hamilton. Defendant and Respondent, Skyline Homeowners Association, is a corporation vested with authority over roads within the development.

¶ 7 In 1973, Harold and Marilyn Mildenberger purchased several hundred acres of ranch land from a Mr. Mahoney. The Mildenbergers then sold a 216-acre section of the property to Dee Shook and James Mildenberger. Shook and Mildenberger used the property to create the Skyline Development, a residential development that currently consists of 24 tracts. The development is bordered to the north by a state highway, to the east by the Ward Ranch, and to the west by the Arrowhill Ranch. The Ward and Arrowhill ranches are the remaining parcels owned by the Mildenbergers.

¶ 8 In 1991, the Mildenbergers sold approximately 13 acres of the Ward Ranch to the Kullicks on a contract for deed. The northwest corner of the Kullicks' property terminates at the southeast corner of the Skyline Development. Skyline Drive ends at a cul de sac located at this junction. The Kullicks access Skyline Drive at the cul de sac and use Skyline Drive to access the state highway. In 1994, the Kullicks and the Skyline Homeowners Association entered into a one-year revocable license agreement, under which the Kullicks were permitted to use Skyline Drive for residential ingress and egress to their property for consideration of $100. The Kullicks executed one-year renewals of the license in 1995 and 1996. The license expired in 1997.

¶ 9 The Kullicks' contract for deed contains a clause, which provided for the creation, by the Mildenbergers, of an alternative access route to the Kullicks' property in the event that the Kullicks' access to Skyline Drive was lawfully challenged and terminated within six years of the date of the contract. This guarantee expired in 1998. Currently, there are several dirt roads connecting the Kullicks' property to the Ward Ranch and the ranch to the state highway.

¶ 10 Skyline Homeowners Association sued the Mildenbergers in 1994, claiming that the Mildenbergers did not have an easement to use Skyline Drive as a matter of law. Although the Kullicks were also using Skyline Drive pursuant to the license agreement, they were not named as defendants in the suit. In 1996, the Twenty-First Judicial District Court, Ravalli County, held that no express or reserved easement existed, and permanently enjoined the Mildenbergers from using Skyline Drive. ¶ 11 Following the expiration of their license agreement in 1997, the Kullicks sued the Homeowners Association, claiming that they were the owners of an easement for ingress and egress over Skyline Drive by virtue of written grant, necessity, and/or estoppel. The Homeowners Association filed an answer and counterclaim, requesting a declaratory judgment that the Kullicks did not have an easement to use Skyline Drive. Following subsequent filings, the Homeowners Association moved for summary judgment on grounds that the Kullicks' action was barred under the doctrines of res judicata and collateral estoppel by the District Court's 1996 judgment against the Mildenbergers, in which the court determined that the Mildenbergers did not have an easement over Skyline Drive. In addition, the Association argued that the Kullicks' various theories for the existence of an easement were without merit. The Kullicks filed a response and argued that the doctrines of res judicata and collateral estoppel were irrelevant, and that the existence of an easement was supported by substantial evidence.

¶ 12 The District Court granted the Association's motion and dismissed the Kullicks' easement claim. The court also permanently enjoined the Kullicks from using Skyline Drive. The Kullicks appeal from that portion of the judgment dismissing their claim for an implied easement.


¶ 13 The standard of review for a grant of summary judgment is de novo. This Court will apply the same evaluation as the trial court under Rule 56, M.R.Civ.P. The moving party must establish both the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Gonzales v. Walchuk, 2002 MT 262, ¶ 9, 312 Mont. 240, ¶ 9, 59 P.3d 377, ¶ 9. Once the moving party has met its burden, the opposing party must, in order to raise a genuine issue of material fact, present substantial evidence essential to one or more elements of its case rather than mere conclusory or speculative statements. Gonzales, ¶ 9. In addition, our standard of review of a question of law is whether the trial court's legal conclusions are correct. Gonzales, ¶ 9.

Issue One

¶ 14 First, we consider whether the Kullicks have an implied easement by existing use over Skyline Drive. We conclude that under the doctrines of res judicata and collateral estoppel, the Kullicks' claim that such an easement exists is barred because this issue was litigated and ultimately resolved by the District Court in the 1994 action between Skyline Homeowners Association and the Mildenbergers.

¶ 15 In Hoyem Trust v. Galt, 1998 MT 300, ¶ 22, 292 Mont. 56, ¶ 22, 968 P.2d 1135, ¶ 22, we stated that "an easement implied from existing use, arises only if, prior to the time the title or tract is divided, a use exists on the `servient part' that is reasonably necessary for the enjoyment of the `dominant part,' and a court determines that the parties intended the use to continue after division of the property." We noted that "[f]or a use to give rise to an implied easement from existing use, it must be apparent and continuous at the time the tract is divided." Hoyem Trust, ¶ 23.

¶ 16 The District Court rejected the Kullicks' claim for an implied easement by existing use on grounds that the issue was litigated in the prior action brought by Skyline Homeowners Association against the Mildenbergers in 1994, and that the Kullicks' claim was, therefore, barred by the doctrines of res judicata and collateral estoppel. According to the court, the Kullicks' proposed implied easement by existing use could only have existed if the Mildenbergers had established, in 1994, that an easement existed over Skyline Drive for their own benefit. The Mildenbergers, however, were unsuccessful in their attempt to establish such an easement in 1994.

¶ 17 Res judicata and collateral estoppel are based on a judicial policy favoring a definite end to litigation. Rausch v. Hogan, 2001 MT 123, ¶ 14, 305 Mont. 382, ¶ 14, 28 P.3d 460, ¶ 14. Res judicata bars a party from relitigating a matter that the party has already had an opportunity to litigate. Olson v. Daughenbaugh, 2001 MT 284, ¶ 22, 307 Mont. 371, ¶ 22, 38 P.3d 154, ¶ 22. Res judicata applies if the following four elements have been satisfied: (1) the parties or their privies are the same; (2) the subject matter of the present and past actions is the same; (3) the issues are the same and relate to the same subject matter; and (4) the capacities of the persons are the same in reference to the subject matter and to the issues between them. Hall v. Heckerman, 2000 MT 300, ¶ 13, 302 Mont. 345, ¶ 13, 15 P.3d 869, ¶ 13.

¶ 18 Collateral estoppel is a form of res judicata, and bars the reopening of an issue that has been litigated and resolved in a prior suit. Finstad v. W.R. Grace & Co., 2000 MT 228, ¶ 28, 301 Mont. 240, ¶ 28, 8 P.3d 778, ¶ 28. Collateral estoppel has three elements: (1) the identical issue raised was 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. Finstad, ¶ 28.

¶ 19 The Kullicks' claim for an implied easement by existing use is derivative of the Mildenbergers' 1994 easement claim. The Kullicks continue to argue that Skyline Drive was the existing access between the state highway and the...

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