                                                                                          July 16 2013


                                             DA 13-0097

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2013 MT 196N



VALERY A. O’CONNELL d/b/a
CELLULAR SENSE, LLC (dissolved),
and DANIEL K. O’CONNELL,

              Petitioners and Appellants,

         v.

KRIS GRAY,

              Respondent and Appellee.



APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. ADV-2011-762
                       Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                       Valery O’Connell (Self-Represented), Daniel K. O’Connell
                       (Self-Represented), Emigrant, Montana

                For Appellee:

                       Kris Gray (Self-Represented), Livingston, Montana



                                                    Submitted on Briefs: June 12, 2013

                                                               Decided: July 16, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     The O’Connells previously operated a cell-phone business in Livingston,

Montana, called Cellular Sense. In September 2009, Kris Gray was hired to work for the

company. Gray claims she was terminated on February 11, 2010. On February 19, 2010,

Gray filed a wrongful termination claim with the Department of Labor and Industry

(DOLI) against Cellular Sense seeking unpaid wages.              DOLI assigned compliance

specialist Amy Smith to investigate Gray’s claim. Smith sent a letter to O’Connells at

two separate addresses requesting a written response to Gray’s claim by a date specific

but Smith did not receive a response.

¶3     On March 11, 2010, Smith issued her determination that Gray was entitled to

wages due. The determination was mailed to O’Connells at the same addresses to which

Smith had mailed the request for a written response. O’Connells confirmed that one of

the addresses was their correct mailing address and they requested a redetermination of

the claim, asserting that Gray was an independent contractor rather than an employee. In

July 2010, after further investigation, the Independent Contractor Central Unit (ICCU) of

DOLI concluded that Gray was an employee, and Smith subsequently issued a



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redetermination finding wages due to Gray.             O’Connells did not appeal the

redetermination.

¶4     In October 2010, Smith issued an Order on Default, which set forth explicit appeal

rights, and mailed the Order to O’Connells. After receiving no petitions for judicial

review, DOLI applied to the First Judicial District Court and received a Final Order of

Judgment for Gray, which was then mailed to O’Connells. DOLI filed a satisfaction of

judgment on January 27, 2011.

¶5     In May 2011, O’Connells filed a civil petition and claim for redress with the Sixth

Judicial District Court, Park County, Cause No. DV 11-96. In July 2011, the Sixth

Judicial District Court dismissed O’Connells’ petition as untimely.

¶6     In August 2011, O’Connells filed a confusing document denominated “Civil

Petition/Claim for Relief Review, & Redress” with the First Judicial District Court,

Lewis & Clark County, naming DOLI, “including ICCC [sic], Wage & Hour Unit,

Unemployment Insurance Division, Accounts Receivable Unit including their agents Erin

Barton, Amy Smith, Robert E. Bailey and other unknown agents, and Kris Gray” as

defendants.   DOLI, interpreting O’Connells’ petition as a motion to set aside the

judgment, filed a response in opposition, arguing that O’Connells had notice of the

proceedings from the early stages but did not seek timely redress or appeal, and that their

motion to set aside judgment was therefore untimely and should be denied. The District

Court, confused by O’Connells’ petition, requested “a clear, concise statement of

allegations setting forth claims for relief that are independent of the wage claim issues

resulting in the default judgment[].” On September 16, 2011, O’Connells filed an equally

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confusing and nearly identical petition to their original petition. DOLI promptly moved

for a dismissal of the action under M. R. Civ. P. 12(b)(6) and 41(b). O’Connells then

moved to remove DOLI and its agents from their petition. The District Court granted

O’Connells’ motion and dismissed DOLI and its agents from the case. This left Kris

Gray as the only remaining defendant.

¶7     The case lay dormant for approximately one year, and on September 17, 2012,

O’Connells moved to have a default entered against Gray for Gray’s failure to respond to

O’Connells’ September 16, 2011 re-submitted petition. The District Court concluded

that the issues raised by O’Connells in their re-submitted petition were the same issues as

those that were barred pursuant to the Sixth Judicial District Court order that dismissed

the action as untimely.     The First Judicial District Court, noting that “there are no

remaining viable causes of action against Defendant Gray,” denied O’Connells’ motion

for default and dismissed the action with prejudice. O’Connells appeal and we affirm.

¶8     The issues O’Connells raised before the First Judicial District Court appear to be

the same issues raised before and resolved by the Sixth Judicial District Court and

therefore are barred by res judicata. We review a district court’s application of res

judicata for correctness. Hartsoe v. Christopher, 2013 MT 57, ¶ 9, 369 Mont. 223, 296

P.3d 1186. The doctrine of res judicata bars relitigation of a claim that a party has

already had the opportunity to litigate. Hartsoe, ¶ 14. O’Connells litigated their claim

involving Gray in the Sixth Judicial District Court. They are not entitled to litigate it

again in the First Judicial District Court.



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¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issue in this case is legal and is controlled by settled Montana law which the District

Court correctly interpreted. We therefore affirm the District Court.



                                                        /S/ PATRICIA COTTER



We Concur:

/S/ BRIAN MORRIS
/S/ JIM RICE
/S/ BETH BAKER
/S/ LAURIE McKINNON




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