Opinion
R.B. Beckman, pro se.
Joseph R. Marra, Marra, Wenz, Johnsons&sHopkins, Great Falls, for defendant and respondent.
ORDER OF DISMISSAL AND OPINION
Plaintiff appeals from an order of the District Court of the Tenth Judicial District, Fergus County, granting summary judgment on all issues to the defendant. Pursuant to the Internal Operating Rules of this Court, this appeal is classified No. 1, because it is so lacking in merit that it should be denied summarily.
This case involves allegations of trespass and damages to six acres of wheatland allegedly owned by the plaintiff, R.B. Beckman. The allegations have been made in two separate lawsuits. The first one was filed by Beckman against his neighbors, Ted and Saima Myllymaki, in 1978. The case went to trial in the District Court of the Tenth Judicial District in 1980. Judgment was awarded to the Myllymakis because of a complete failure of proof of the issues raised by Beckman. Indeed, there was no evidence of any survey of the common boundary between the Myllymaki and Beckman properties. There was evidence, however, that the Myllymakis and their predecessors had farmed the disputed six acres for several years without contention. Beckman appealed the judgment, but his appeal was summarily denied as frivolous and lacking in merit. Beckman v. Myllymaki, No. 81-166 (Mont. Oct. 1, 1981).
The second lawsuit, filed in 1981, involves nothing more than the same allegations of wrongdoing committed during the same period of time alleged in the suit against the Myllymakis. The only difference is that the complaint was filed against Richard Chamberlain, who is currently farming the disputed six acres with the permission of the Myllymakis, and who was working the land during the time period covered by the initial complaint against the Myllymakis. Chamberlain moved to strike the complaint as a sham and as a false, frivolous and redundant pleading. In the alternative, Chamberlain moved to dismiss the complaint for failure to state a claim upon which relief could be granted, or for summary judgment. Following a hearing, and after taking judicial notice of the earlier lawsuit, the motion to dismiss was treated as one for summary judgment in favor of Chamberlain.
Review of the record in this case and in the previous action against Myllymakis, considered in light of the relevant law, compels only one conclusion: that Beckman's appeal should be denied summarily.
Initially, we note that Beckman's complaint against Chamberlain is barred by the two year statute of limitations set forth in Section 27-2-207, MCA. Based on the periods of alleged trespass and injury to the six acres as described in the complaint, Beckman had until September, 1981, to pursue his claim for relief. However, the complaint was not filed until November, 1981.
More importantly, Beckman's complaint is barred by the doctrine of estoppel by judgment. Beckman is attacking Chamberlain for the same alleged wrongs done to the same property during the same time period involved in his unsuccessful suit against the Myllymakis. Merely because Chamberlain was not party to the original action does not preclude him from asserting judgment by estoppel. Strict mutuality of parties has gone by the wayside in jurisdictions facing problems similar to the one involved here. The more relevant considerations are whether (1) the party adversely affected by estoppel has had a full and fair opportunity to litigate the critical issues; (2) the assertion of estoppel by a stranger to the original judgment would create analagous results in the latter case; (3) the party affected by estoppel has sound reasons why he or she should not be bound by the previous judgment; (4) the previous judgment was the result of thorough litigation; and (5) there was an appeal from the original judgment. See generally Annot., 31 A.L.R.3d 1044, 1052-53 (1970) (discussing liberalization of mutuality doctrine in collateral estoppel cases involving strangers to original judgment).
All of the above-stated considerations favor Chamberlain's position. Beckman has essentially refiled a lawsuit fully litigated and rejected by the District Court and this Court. He has not offered a sound reason why he should not be bound by the original judgment. Chamberlain is entitled to raise the affirmative defenses of statute of limitations and estoppel by judgment in a motion to dismiss as opposed to an answer, despite Beckman's protestations to the contrary. A motion to dismiss for failure to state a claim on which relief can be granted will lie when the complaint on its face establishes that the claim is barred by the statute of limitations, and the usual requirement that such a defense be affirmatively plead need not be followed. See, e.g., Conerly v. Westinghouse Electric Corp. (9th Cir.1980), 623 F.2d 117, 119; Burkhardt v. Liberty (W.D.Pa.1975), 394 F.Supp. 1296, aff'd (3d Cir.1976), 530 F.2d 963 (interpreting Rules 8(b) and 12(b)(6), Fed.R.Civ.P., the equivalents of Rules 8(b) and 12(b)(6), M.R.Civ.P.). See generally 5 Wrights&sMiller, Federal Practice and Procedure, section 1277, at 330. Assertion of estoppel by judgment should also be permitted on motion to dismiss where the judgments relied upon are ones made in the very court or courts asked to pass upon the motion. This is the position of the federal courts in matters involving res judicata, see, e.g., Hedger Transp. Co. v. Busheys&sSons, Inc. (E.D.N.Y.1950), 92 F.Supp. 112, aff'd (2d Cir.1951), 186 F.2d 236; Haydu v. City of Billings (D.Mont.1966), 258 F.Supp. 785, and there is no reason why the same principle should not apply to collateral estoppel or estoppel by judgment. Here, Beckman is seeking relitigation of matters previously resolved by the district court and this Court in 1980 and 1981, respectively.
The appeal is dismissed, with costs awarded to the defendant Chamberlain.