O Connell v. Gray , 2013 MT 196N ( 2013 )

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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