Orlando v. Prewett, 88-419

Decision Date30 March 1989
Docket NumberNo. 88-419,88-419
Citation236 Mont. 478,46 St.Rep. 520,771 P.2d 111
PartiesGeorge ORLANDO, as Personal Representative of the Estate of Frank A. Donnes, Deceased, Plaintiff and Respondent, v. Lee PREWETT and Barbara Prewett, Husband and Wife, and L.R. Bretz, Defendants and Appellants. L.R. BRETZ, Plaintiff and Appellant, v. George ORLANDO, as Personal Representative of the Estate of Frank A. Donnes, Deceased, Defendant and Respondent.
CourtMontana Supreme Court

R.J. Carstensen, Billings, for defendants and appellants.

R. Russell Plath, Kelly & Halverson, P.C., Sheehy, Finn and Plath, Billings, for plaintiff and respondent.

HUNT, Justice.

L.R. Bretz appeals from an order of the District Court of the Sixteenth Judicial District, Treasure County, granting summary judgment to George Orlando, Personal Representative of the estate of Frank A. Donnes (Donnes Estate), and denying Bretz's motion to vacate and set aside a partial summary judgment previously awarded to the Donnes Estate. We affirm.

The following issues are raised on appeal:

1. Does the doctrine of res judicata render a mechanic's lien null and void when the lien was filed against real property that was the subject of a prior quiet title action against the same parties who filed the lien?

2. May a district court grant summary judgment when the non-moving party has failed to file a brief?

Frank A. Donnes was murdered in the fall of 1982. On November 16, 1982, George Orlando filed the Last Will and Testament of the deceased and a petition for probate with the Treasure County Clerk of Court. The will named Donnes' two sisters, Helen Carbone and Mabel Orlando, as the sole devisees of the entire estate, which included a 5,000-acre ranch in Treasure County.

On January 8, 1983, Donnes' niece and her husband, Barbara and Lee Prewett, filed two creditors' claims against the Estate. The first claim alleged that the Prewetts had entered into an oral agreement with Donnes, in which Donnes agreed to create a will or establish a grantor trust giving the Prewetts one-half of his ranch and the option to purchase the other half from his estate. The second creditors' claim alleged that Donnes had orally agreed to sell livestock and other personal property to the Prewetts for $12,000 but that title to the property had not passed because the Prewetts owed a remaining balance of $10,515.

On January 19, 1983, the District Court formally admitted the will into probate and appointed George Orlando as Personal Representative of the Donnes Estate. The Personal Representative filed notice of disallowance of the creditors' claims. He then filed a complaint against the Prewetts, seeking a judgment that the Donnes Estate was entitled to quiet and peaceful possession of the Frank Donnes Ranch and the personal property upon the ranch and a permanent injunction preventing the Prewetts from asserting any adverse claim against the Estate's title and ownership of Donnes' real and personal property. In response, the Prewetts counterclaimed, requesting specific performance of the two oral contracts alleged in the creditors' claims. Later, the Personal Representative amended the complaint to include an additional cause of action against the Prewetts for an accounting. Prior to trial, the District Court bifurcated the causes of action. On November 7, 1983, a bench trial proceeded only upon the Estate's quiet title actions and the Prewetts' counterclaims for specific performance of the oral agreements.

On June 4, 1984, the District Court ruled that the Donnes Estate should take nothing under the quiet title actions, and that the Prewetts were entitled to specific performance of both oral agreements. The Estate appealed the decision to this Court. In Orlando v. Prewett (1985), 218 Mont. 5, 705 P.2d 593 (Orlando I ), we reversed the District Court, holding that the oral agreement for the transfer of the Donnes Ranch was an unenforceable contract to make a will and that the Donnes Estate was entitled to a judgment quieting title in the ranch. We subsequently issued an order directing the Personal Representative to take immediate possession of the entire Donnes Estate.

On January 6, 1986, after we issued Orlando I, the Prewetts filed a mechanic's lien against the Donnes Ranch, claiming that they had provided labor from 1981 through 1984 that enhanced the ranch's value by $376,474.22. On February 6, 1986, the Prewetts assigned their rights under the mechanic's lien to L.R. Bretz for $1,000.

On July 15, 1986, Bretz filed a complaint against the Donnes Estate, seeking foreclosure of the mechanic's lien. The Estate's answer to the complaint alleged several affirmative defenses, including res judicata.

On July 16, 1986, the District Court granted the Personal Representative's motion to amend the complaint filed against the Prewetts in January, 1983, adding L.R. Bretz as a named defendant and seeking a judgment that the mechanic's lien was null and void. The Personal Representative also sought an order quieting title in the ranch to the Donnes Estate and enjoining the Prewetts and Bretz from asserting any adverse claim against the real and personal property in the estate.

On November 28, 1986, the Donnes Estate filed a motion for summary judgment on the mechanic's lien, asking for a judgment that the mechanic's lien was null and void. At the same time, the Estate filed a brief in support of summary judgment and a notice of hearing on the motion, which set a hearing date of January 2, 1987. On December 31, 1986, two days before the hearing, Richard J. Carstensen filed a notice of attorney of record for defendant Bretz and a motion for additional time to respond to the summary judgment.

The hearing was held as planned on January 2, 1987, with neither Bretz nor...

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8 cases
  • Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Mont. Twentieth Judicial Dist. Court
    • United States
    • Montana Supreme Court
    • January 26, 2021
    ...their initial litigation failed. See Fisher v. State Farm Gen. Ins. Co. , 1999 MT 308, 297 Mont. 201, 991 P.2d 452 ; Orlando v. Prewett , 236 Mont. 478, 771 P.2d 111 (1989) ; Kimpton v. Jubilee Placer Mining Co. , 22 Mont. 107, 55 P. 918 (1899). While Watchtower argues in its petition, "If ......
    • United States
    • Montana Supreme Court
    • April 29, 2003
    ...which could have been properly raised irrespective of whether the particular matter was in fact litigated." Orlando v. Prewett (1989), 236 Mont. 478, 481, 771 P.2d 111, 113, quoting Kramer v. Deer Lodge Farms Co. (1944), 116 Mont. 152, 156, 151 P.2d 483, Hall, ¶ 16. ¶ 26 We concluded that H......
  • Touris v. Flathead County, DA 10–0514.
    • United States
    • Montana Supreme Court
    • July 12, 2011
    ...must, at some point, come to an end. State v. Southwick, 2007 MT 257, ¶ 15, 339 Mont. 281, 169 P.3d 698; Orlando v. Prewett, 236 Mont. 478, 481, 771 P.2d 111, 113 (1989). In addition, res judicata promotes judicial efficiency, deterring plaintiffs from splitting a single cause of action int......
  • Tisher v. Norwest Capital Management & Trust Co., Inc.
    • United States
    • Montana Supreme Court
    • September 23, 1993
    ...Trust The doctrine of res judicata is grounded in the idea that litigation must at some point come to an end. Orlando v. Prewett (1989), 236 Mont. 478, 481, 771 P.2d 111, 113. Thus, a party is prohibited from relitigating a matter that the party has already had an opportunity to litigate. T......
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