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                                            No. 00-182
                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 352N



                                                     VERNA JOYCE HAUCK,

                                                       Plaintiff and Appellant,

                                                                      v.

                                   MERLE L. SERIGHT and PRISCILLA SERIGHT,

                                                   Defendants and Respondents.

                            APPEAL FROM: District Court of the Tenth Judicial District,

                                                 In and for the County of Fergus,

                                 The Honorable Richard A. Simonton, Judge presiding.


                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                               Robert L. Johnson, Attorney at Law, Lewistown, Montana

                                                           For Respondents:

                               Jon A. Oldenburg, Attorney at Law, Lewistown, Montana

                                            Submitted on Briefs: October 12, 2000
                                               Decided: December 21, 2000

                                                                   Filed:

                                   __________________________________________


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                                                                     Clerk



Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Appellant, Verna Hauck (Hauck) filed a motion for partial summary judgment seeking the imposition
of a constructive trust on $105,000 transferred by Alice Sisson to the respondents, Merle L. Seright and
Priscilla Seright (Serights). The Serights filed a motion for summary judgment on the basis of res
judicata and/or collateral estoppel. Hauck appeals from the granting of summary judgment in favor of
the Serights. We affirm the judgment.

¶3 This transfer of funds was the subject of a prior appeal in Hauck v. Seright, 1998 MT
198, 290 Mont. 309, 964 P.2d 749. The procedural and factual background is set forth in
that published opinion. In the initial litigation, Hauck challenged the transfer of the
$105,000 as being invalid due to undue influence by Merle Seright. The District Court
judgment stated, "[t]he transfer of funds by Alice A. Sisson to Merle and Priscilla Seright,
from her account at Edward D. Jones, on December 18, 1992 was a valid transfer and not
as a result of undue influence." On appeal, we held, "[o]ur review of the court's order
shows that its language follows that used in the special interrogatories agreed to by the
parties and upon which the jury rendered its verdict. We hold that the court did not err in
its judgment." Hauck, ¶ 28.

¶4 Subsequent to the above decision by this Court, Hauck filed the present litigation
wherein she contends that the testimony of Merle Seright in the underlying suit (that he
and his wife were merely holding the money for Alice's medical expenses) constituted a
judicial admission that now binds the Serights to return the transfer of the $105,000 from
Alice Sisson.

¶5 The question presented is whether the District Court erred in granting summary
judgment to the Serights on the basis of res judicata.



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¶6 We recently discussed the doctrine of res judicata in Balyeat Law, P.C. v. Hatch
(1997), 284 Mont. 1, 942 P.2d 716:

         The doctrine of res judicata bars issues and claims litigated in a former action as
         well as issues and claims which might have been litigated in the former action. Mills
         v. Lincoln County (1993), 262 Mont. 283, 864 P.2d 1265. This Court has established
         that the doctrine of res judicata bars a party from relitigating a matter that the party
         has already had the opportunity to litigate. " 'Once there has been a full opportunity
         to present an issue for judicial decision in a given proceeding . . . the determination
         of the court in that proceeding must be accorded finality as to all issues raised or
         which fairly could have been raised . . . .' " Mills, 864 P.2d at 1267 (citing First
         Bank v. District Court (1987), 226 Mont. 515, 519-20, 737 P.2d 1132, 1134-35).

         A resolved claim will be res judicata as to subsequent claims if: (1) the parties are
         the same; (2) the subject matter 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 issues. Loney v. Milodragovich, Dale & Dye, P.
         C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 161.


Balyeat Law, 284 Mont. at 3-4, 942 P.2d at 717.

¶7 The testimony of Merle Seright upon which Hauck relies was presented during the
initial trial of this matter where Hauck unsuccessfully challenged the validity of the
transfer. Despite being aware of Seright's alleged judicial admission, Hauck did not raise
that issue during trial, in her post-trial motions or in her first appeal to this Court.
Furthermore, the jury heard testimony from the Edward D. Jones representative, Mr.
Nelson, that Alice Sisson had discussed her accounts with him and that her expressed
intent in December of 1992, as well as earlier, was that Hauck not receive any portion of
those funds.

¶8 Applying the principles of res judicata to Hauck's second suit, we agree with the
District Court that this suit and the prior suit involve the same parties (or their privies); the
subject matter is the same; the issues are the same and the capacity of the persons is the
same in reference to the $105,000 subject matter. As the District Court noted: "[t]here is
no evidence that the transfer of $105,000.00 was anything but a gift to a nephew and his
wife to remove the money from Alice Sisson's estate while hoping that the Serights would
use it for Sisson's care if necessary, but with Nelson's admonition to Sisson that the

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Serights had no obligation to do so."

¶9 The District Court in the first trial and then this Court on appeal, determined that the
transfer of the $105,000 was a valid transfer. If Hauck felt that Merle's trial testimony
amounted to a judicial admission which would bear upon the question of whether the
Serights could retain the funds, she had the opportunity during the first trial and appeal to
litigate that issue. As we stated in Balyeat Law, res judicata bars not only issues litigated
but also issues which might have been litigated in the former action. Accordingly, since
Hauck chose not to raise the issue of the alleged judicial admission when she had the
opportunity, her present claim is res judicata.

¶10 Affirmed.

                                               /S/ W. WILLIAM LEAPHART

                                                               We concur:

                                                      /S/ KARLA M. GRAY

                                                     /S/ JAMES C. NELSON

                                                         /S/ JIM REGNIER

                                                /S/ TERRY N. TRIEWEILER




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