Association of Unit Owners of the Deer Lodge Condominium v. Big Sky of Montana, Inc., 798 P.2d 1018 (1990)

identical issues decided in the prior adjudication; (2) a final
judgment on the merits; and, (3) the party against whom collateral
estoppel is asserted was a party or privy to a party in the prior
adjudication.
     Identical issues were litigated, and final judgments on the
merits were entered in these cases.
     The District Court found in the Structure case that the unit
owners knew or should have known of the various defects in the
condominiums in 1976 and prior thereto. On the whole record before
us, we determine too, because of the final judgments, that as a
matter of law the unit owners knew or should have known of the
defects, including the defective fireplaces.    The cause of action
asserted by the unit owners against the State and Houston is based
upon   negligence   in   failing to discover or to warn     of   the
deficiencies in the fireplaces.     Houston, and his employer, the
State, may not be held liable on the basis of a failure to warn
when at the same time the unit owners knew or should have known of
those same defects.
       Since the beginning date of the running of the statute of
limitations against the unit owners was in 1976 or earlier, the
period of limitations for actions based on negligence was three
years, 5 27-2-204, MCA.      Thus, in 1981, any claim of the unit
owners based on negligence for the defective fireplaces was already
dead from the passage of time. A new cause of action based on the
same facts which barred the former action does not, like the
phoenix, rise from the burned ashes of the old cause of action
youthfully alive to live another period.
       The unit owners also lose on their argument that there is no
identity of parties in the Structure case and the Fire case which,
if true, would preclude collateral estoppel.      The unit owners,
suing as a class in the Structure case, and the unit owners here
in the Fire case were parties in both actions, and are the parties
against whom collateral estoppel is asserted. This establishes one
leg of the tripod test for collateral estoppel adopted by us in
Aetna Life and Casualty Insurance Company v. Johnson (1984), 207
Mont. 409, 673 P.2d 1277 and in Marriage of Stout (1985), 216 Mont.
342, 701 P.2d 729.       The other legs, adjudication of identical
issues, and a final judgment on the merits, are also proved.
      We therefore affirm the summary judgments in favor of Bruce
Houston and the State of Montana.
BIG SKY OF MONTANA, INC.; BIG SKY OF MONTANA REALTY, INC.
      On January 17, 1989, the District Court entered its findings
of   facts, conclusions and order granting summary judgment to
Realty.     As noted in the foregoing, Realty was a successor in
interest of Big Sky of Montana, Inc.
      In its order, the court discussed the several theories of
claims brought by the unit owners.    We will examine each claim or
point of decision by the District Court to determine if we find
therein an issue of material fact which would preclude summary
judgment.    Rule 56, M.R.Civ.P.
1.   Collateral Estoppel
      Essentially, the District Court concluded that the unit owners
were collaterally estopped from disputing, and were bound by the
facts and conclusions determined by      the Mae and    Darq   final
judgments in the Structure case. As we have discussed earlier, the
District Court drew from those judgments the conclusion that in
1976 the unit owners knew or should have known the fireplaces