HOLTMAN v 4-G S PLUMBING HEATING
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93-365 NO. IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 ROGER HOLTMAN, Plaintiff and Appellant, -vs4-G's PLUMBING & HEATING, a corporation, Defendants APPEAL FROM: INC., .?R S-1$)4 and Respondents. &/ J&f BL CLERKOFSLjPREME COURT ="A-E OF iMoi\iTANA District Court of the In and for the County The Honorable Douglas Fourth Judicial District, of Missoula, G. Harkin, Judge presiding. COUNSEL OF RECORD: For Appellant: Charles 3. Tornabene, For Tornabene; Patterson, Schuyler & McKenna, Montana Respondent: Ronald A. Missoula, Bender; Montana Submitted Worden, Thane on Briefs: Decided: Filed: Marsillo, Missoula, & Haines, December 16, April 1994 5, 1993 Justice Karla M. Gray delivered Roger Holtman Fourth Judicial judgment in Plumbing). District favor of of privacy Plumbing under estoppel. and asbestos the doctrines the elements we reverse to his asbestos dismissal the court's Montana. Townhouse Homeowner's contamination claims against res only of trespass, and 4-G's collateral application of Because all claim. of estoppel are not met, in favor Association (the to enter absence, to repair a leak and install Holtman returned to heating his The Association filed the installation and Holtman's of 4-G's a complaint of the heating by generally denying the years Holtman filed Association's a counterclaim 2 authorized condominium, asbestos system. contamination. system. an injunction Holtman allegations. without When a partially of the seeking an in his system. he discovered installation Townhouse the Edgewater a new heating alleged further of 1989, Association) condominium, system to allow in the Edgewater In February Plumbing later, iudicata in the court's located of 4-G's require prejudice his employee refused (4-G's claim. Complex in Missoula, Holtman summary Inc. with of summary judgment Holtman owned a condominium installed granting barred and collateral grant by the lawsuit contamination of res iudicata on that that of error County, entered and Heating, in a previous Holtman asserts the doctrines Plumbing determined of the Court. from an order Missoula 4-G's counterclaim invasion appeals Court, The court Holtman's Plumbing (Holtman) the Opinion responded Nearly leave to two of court. He alleged rights, that the invaded asbestos. In counterclaim not his with to obtain to Holtman other and Rule of the of Holtman (1993), court 256 Mont. January of In Holtman's the Association privacy, moved for res iudicata. and filed res iudicata 4-G's claims claims estoppel. 4-G's 4-G's (Mont. 1993), we determine material fact. M.R.Civ.P. We affirmed the Townhouse present action claims of The the invasion judgment under barred res on both Court granted dismissing iudicata and by motion relying order, of Association Association's by separate and res from v. against were The District under only 13(f), iudicata the summary adjudication summary judgment the collateral in Plumbing. Our standard same as that appeals had Holtman claims summary Association Plumbing was the in defendant the 1224. that estoppel. the Holtman of for dismissed Edgewater the joined with and contamination. arguing property counterclaim Rule asserting asbestos each against against favor Plumbing, motion for in filed Plumbing court appealed. Holtman and collateral judgment to 845 P.2d judgment, a separate summary the and summary pursuant of condominium M.R.Civ.P., 182, and 4-G's his compulsory counterclaim 1992, trespass, 13(a), him the the Association dismissal deprived rulings, because under leave had and contaminated prejudice filed Both privacy, addition timely failed Association used for reviewing by the a grant district 863 P.2d 426, 431, whether there is Minnie v. City of court. 50 St.Rep. an of 3 absence Roundup Emery v. is Federated 1454, 1456. genuine issues Foods Initially, of the (1993), 257 Mont. of 429, 431, 849 P.2d 212, 214. the initial genuine 435, burden factual 442, moving of party basis. 924. and admissions its Minnie, draw from the pleadings, v. to together absence of any 240 Mont. with appropriate an the The moving party answers with of burden, 849 P.2d at 214. on file, has meet this motion depositions, absence Swanson (1990), In order support summary judgment a complete D'Agostino 919, must moving for demonstrating issues. 784 P.2d evidentiary The party may to interrogatories, any affidavits. Rule 56(c), M.R.Civ.P. Once an established, judgment District we determine as a matter Court estoppel. whether Revenue (1990), 245 Mont. Plumbing court's are correct. 470, fact is is entitled to was of res iudicata to a district they material 849 P.2d at 214. 4-G's under the doctrines whether of the moving party that We do not defer determine issues Minnie, of law. concluded summary judgment but genuine 474-75, the entitled to and collateral legal Steer, Here, conclusions, Inc. v. 803 P.2d 601, Dep't of 603. Res Judicata The doctrine litigation (1989) r of res iudicata must at some point 236 Mont. relitigation 478, of an entire been entered. Marriage P.2d 729, 733. All judicata 481, is grounded come to an end. 771 P.2d cause of action of Stout (1985), of the following to apply: 4 111, on the principle Orlando 113. once a final 216 Mont. elements that v. Prewett It bars the judgment has 342, are necessary 349, 701 for yes 1) the parties or 2) the subject matter 3) the subject issues matter; must be the and 4) the capacities reference to the Tisher v. Nor-west 50 St.Rep. alleges none of the that must same and (Mont. same: be the relate 1993), same: to the 859 P.2d on the same in 984, 987-88, of the doctrine, do but res are of Because no such iudicata is that contain an identical to 4-G's his prior in the counterclaim he argues that Plumbing urges 4-G's the claim Plumbing claim, met. asserting not contaminationl' part contained of complaint "asbestos system. elements workmanship, action his heating Association application the Mgmt. workmanship of the the be the 962. negligent against the must of the persons must be the same subject matter and to the issues. asserts installation privies of Capital 960, Holtman their claims allegation advanced of those raised claim reads in negligent in the prior counterclaim. Holtman's asbestos contamination as follows: That said defendant, 4-G's Plumbing & Heating, Inc., in the process of installing said hot water heating system older plumbing pipes, in Plaintiff's home, disturbed which were contaminated with asbestos, resulting in asbestos contamination of Plaintiff's home and the personal property contained therein. This asbestos clarity. on the contamination However, basis of 4-G's claim--as Plumbing a failure be granted or challenge decline to rule Court. Goodover to the on an issue v. Lindey's, did state hardly not summary move for a claim claim that alleged--is upon which as alleged was not Inc. (1992), 5 in a model presented 255 Mont. to judgment relief any other the 430, of could way. We District 441, 843 P.2d 765, 772. to Holtman's is read Thus, we address asbestos to allege installation to however, their It is undisputed prior that because they determine Smith a "privy" interest element that of 4-G's and the focused in the iudicata Plumbing Court is was not a determined, were privies on whether a defendant's legal litigant to the two are privies. As we stated in Brault v. 239, the concept of the 21, 27, 679 P.2d 236, context has been legally of a judgment represented applies at trial. privies or law to as be affected identified with with each other to one whose We have similarly as those who are so connected consequently, res Association defined in Plumbing by the previous 209 Mont. in claim has been represented whether (1984), by 4-G's that in concert." have or interest to the extent The District Plumbing "acted We previously right privies" litigation. 4-G's of res iudicata system. or here. the claim workmanship of the heating dispositive party contamination negligent The "parties the applicability in estate the same or in blood interest by litigation. and, Tisher, 859 Plumbing had P.2d at 988. As the party moving the initial burden of material fact the privity Holtman's and entitlement complaint; summary judgment. summary judgment, of demonstrating element. interrogatories, for 4-G's nor did admissions Thus, the absence of a genuine to judgment Plumbing it submit or affidavits it 4-G's did not file to support of law on an answer any depositions, did not provide 6 as a matter issue to answers to its motion any evidentiary for basis for summary adjudication. By joining however, 4-G's evidentiary prior the Association's Plumbing basis for counterclaim, ostensibly the order and rulings previous litigation. materials form a sufficient of privity--a shared legal G's Plumbing on the asbestos Plumbing that system, conduct establish Plumbing with heating 4-G's in employee the to its Thus, the court's are claim, is in claim alleges negligent workmanship by arguing right to would control installing exist the interest that This does however, with not 4-G's of the the Association context to establish contamination relationship determination of the asbestos incorrect. attempts in to install in the installation the asbestos the Association 4-G's the condominium. a legal the of and 4- hired Court's conclusion privies, these on the issue the condominium workmanship to the whether Association condominium, shared and the relating on the claim. the into of Association in entering regard Plumbing file the District entering Plumbing contamination that copies summary judgment contamination the Association system. and 4-G's for Association's prejudice, focus in concert" in that we supporting the two "acted mutual its with interest--between the indicate and allowed the heating it Therefore, the including in the court basis summary judgment, adopted striking contained materials for summary judgment, findings The motion a shared to the that the heating if the Association physical conduct 7 of legal extent it interest that claim acted as an agent system. An agency controlled 4-G's or had the Plumbing in the installation Dist. of the heating (1989), Ct. Restatement prior 240 Mont. (Second) litigation control. was a privy of contamination 4-G's the that been the res the in claim that in the only parties in "parties or their to the claims of the of 4-G's that the it asbestos lawsuit well Plumbing so here. that as could could those have actually 128, 133, (1989), 236 Mont. 478, 481, of res iudicata, lawsuits privies, litigated however, between reflecting of the doctrine. Thus, not actually Holtman 240 Mont. or their 771 P.2d at 113. asbestos 4-G's claims in subsequent element that to (1989), effect action tied Holtman's from doing as County raised loosely proceeding, v. Prewett privies" as to claims bar precludes Flathead original at 386; Orlando, required quoting on by to assertion prior The preclusive 113. applies the prior 386; Orlando 111, to res iudicata 783 P.2d 383, Finally, relied arguments, by the doctrine Beck v. case before Jud. such a right regard two other iudicata, he is barred raised effect 368, do not establish with Based on its claim. is true P.2d Third in the record materials Association adjudicated. 771 Nothing case establishes the advances of raised It 783 P.2d 363, summary adjudication Plumbing contamination argues that v. claim. doctrine have 5 2. or the present to support See Eccleston 44, 51-52, of Agency, We conclude Plumbing system. &.&, res iudicata's does not the the 783 P.2d preclusive apply to the us. 4-G's Holtman to Plumbing assert asserts his that claims 8 Rule 12(b), against it M.R.Civ.P., in the prior litigation. Rule 12(b), a claim, counterclaim responsive pleading. not a defense prior or the litigation. M.R.Civ.P., file be raised 4-G's by the required against 4-G's the Plumbing by to in Association asserted claims every defense against he was not his that claim claims claims Thus, to third-party Holtman's to requires M.R.Civ.P., were in Rule the 12(b), Plumbing in that action. 4-G's privies" Court Plumbing has not demonstrated element erred in contamination Collateral of res iudicata applying claim iudicata 4-G's the "parties We hold that to bar or their the District Holtman's asbestos Plumbing. Estoppel Again focusing Holtman asserts entirely that collateral not raised Collateral preclusion, parties prior a form 292, 294, does not sometimes referred to iudicata. While in subsequent collateral estoppel in a second cause of action in a prior 4of negligence claims the same cause of action, determined estoppel Plumbing's of res from relitigating an issue under the doctrine collateral of 4-G's that was counterclaim. estoppel, is that claim, in concluding to summary judgment because the issue in his contamination Court erred He contends estoppel. bar the claim on the asbestos the District G's Plumbing was entitled Mont. is met. res against that suit. 824 P.2d Linder 1004, that 9 issue iudicata bars proceedings based on bars the reopening has been litigated v. Missoula 1005. res as County The doctrine (1992), has of and 251 three elements: 1) the identical issue raised in a prior adjudication: 2) a final judgment adjudication: and has been previously on the merits was issued decided in the prior 3) the party against whom the plea is now asserted party or in privity with a party to the adjudication. State v. Young (1993), analysis need not proceed Identity estoppel. of issues Anderson 699, 702. In order "precise the State previous the two this is element, Association prior to the receipt that arose Plumbing and, alleged asbestos contamination Life Holtman's claim his present claim, contamination. against Ins. to issue the Association raised McElvain We note examine that from claim against against on damages the 4-G's for asbestos-related in the prior litigation did, without the knowledge or consent terminate the heating service to 10 the on the claim. was as follows: [The Association] of [Holtman], we was dismissed sought Holtman's or action. Co. v. 1086. his issue prior counterclaim as 817 P.2d and circumstances of any evidence prior 21, the counterclaim from the same events like whether allegations Holtman's 18, in the 146, 717 P.2d 1081, since Our of collateral the identical evidence Aetna asbestos-related true element 250 Mont. To determine actions. 138, litigation grounds It (1991), 965. element. must have been litigated 221 Mont. only legal v. we compare the pleadings, surrounding (1986), first is the most crucial 817 P.2d at 702. is identical, 371, 377, 856 P.2d 961, beyond the to satisfy question" Anderson, have 259 Mont. was a prior the [Holtman's] unit sometime between March, 1988 and February 5, 1989, which resulted in certain waterlines freezing, breaking and creating water leaks in [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 rendered [Holtman's] damaged, unsafe unit and uninhabitable. When this claim claim identical compared 4-G's against is Plumbing issue, was not raised to Holtman's asbestos contamination set forth and decided it question, or precise above, raised in the in the earlier is clear that the case involving litigation present the Association. Holtman's prior an intentional wrongful termination that flowed in therefrom, this including fashion, an resulting that the to the extent the prior of negligent of a duty. on the existence Nautilus (1992) I 254 Mont. 296, that system its duties were co-extensive the Association. 11 claim of the Ins. the claim did alleged is Association not raise is premised, v. First 411. the claim the in the installation to Holtman with is case is not identical. action 299, 837 P.2d 409, legal prior issue workmanship A negligence and asbestos the against that system. the damage asbestos-related negligence contamination, Plumbing's of the new heating new heating clear by all extent in the present in asbestos not established is unauthorized waterlines Plumbing allegation issue of 4-G's broken To the it of 4-G's Furthermore, as can be read as alleging by the Association--the and distribution. negligence read act claim of heat to the condominium--followed disturbance read asbestos-related 4-G's National Plumbing in installing duties first, Ins. has the owed him by We conclude estoppel collaterally estopped "identical issue" Court from erred element us. summary judgment the asbestos in favor Therefore, that before in concluding asserting of collateral Holtman is contamination of 4-G's Plumbing claim. Reversed this the District and in granting on that the is not met under the circumstances we hold that claim that and remanded for further opinion. proceedings ! We concur: 12 consistent ^ with April 5, 1994 CERTIPICATEOF SERVICE I herebycertify that the following certified order was sentby United Statesmail, prepaid,to the following named: CharlesJ. Tornabene Patterson, Marsillo, Tomabene, Schuyler McKenna & 103 So. 5th East Missoula,MT 59801 RonaldA. Bender,Esq. Worden,Thane& Haines,P.C. P.O. Box 4747 Missoula,MT 59806 JohnR. Gordon,Esq. Reep,Spoon& Gordon, P.C. P.O. Box 9019 Missoula,MT 59807-9019 ED SMITH CLERK OF THE SUPREMECOURT
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