Brishka v. DOT

05/25/2021

DA 20-0356
Case Number: DA 20-0356

IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 129

ALEXANDER R. BRISHKA AND ILMA
BRISHKA, AS CO-TRUSTEES OF THE
BRISHKA TRUST ESTABLISHED
MARCH 29, 1999,

Plaintiffs and Appellants,

v.

STATE OF MONTANA, DEPARTMENT
OF TRANSPORTATION,

Defendant and Appellee.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DV-15-645(D)
Honorable Dan Wilson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Clifton W. Hayden, Law Offices of Clifton W. Hayden, Whitefish, Montana

For Appellee:

Mikel L. Moore, Moore, Cockrell, Goicoechea & Johnson, P.C., Kalispell,
Montana

Submitted on Briefs: March 31, 2021

Decided: May 25, 2021

Filed:
q3,,---,6mal•-.— 4(
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Alexander and Ilma Brishka, as co-trustees of the Brishka Trust (collectively

“Brishkas”), appeal an Eleventh Judicial District Court order granting summary judgment

in favor of the State of Montana, Montana Department of Transportation (“MDT”), on

claims of inverse condemnation, negligence, and attorney fees and costs.1 We affirm.

¶2 We address the following issue on appeal:

Whether the District Court erred in granting MDT’s motion for summary judgment,
concluding the doctrine of collateral estoppel precluded the Brishkas from pursuing
their claims of inverse condemnation, negligence, and attorney fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The Brishkas own property north of Whitefish along Montana Highway 487

(commonly known as Big Mountain Road). The Brishkas maintained a private,

4.5 million-gallon, man-made fishpond on the property. During a large storm event on

August 2 through 3, 2013, the pond breached its banks and water flowed downslope,

releasing nearly all of the 4.5 million gallons of impounded water in a torrent that carried

boulders, trees, and other debris downhill. The water caused damage to the pond and to

downstream property.

¶4 The Brishkas sued MDT in July 2015, alleging that the breach of the pond resulted

from MDT’s improvement of Big Mountain Road during the summer of 2007. In their

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Brishkas specifically limit the scope of their appeal in their Statement of the Case and Conclusion
to the District Court’s grant of summary judgment on their inverse condemnation and attorney fees
and costs claims. In their Statement of the Issue, however, Brishkas refer to “Counts I, III and V
of Brishka Trust’s Complaint.” Count III in Brishka’s Complaint asserts a negligence claim. Thus,
we will address the District Court’s order granting summary judgment on Brishkas’ negligence
claim.
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Complaint, the Brishkas asserted claims under inverse condemnation (Count I),

negligence per se (Count II), negligence (Count III), nuisance (Count IV), and attorney fees

and costs (Count V). In September 2018, MDT filed its first motion for summary judgment

on the Brishkas’ negligence per se and nuisance claims, respectively Counts II and IV. The

District Court granted the motion on November 13, 2018. This order is not contested in

this appeal.

¶5 Brishkas’ July 2015 action is not the only litigation concerning the pond’s failure

on the Brishka property. In July 2016, Michael and Stacey Covey and the Covey Trust

(collectively “Coveys”), owners of the property downhill from the Brishka property,

brought suit against the Brishkas for damages suffered to their property located on

Whitefish Lake as a result of the breach of the pond. See Michael J. Covey, et al. v.

Alexander R. Brishka, et al., No. DV-15-2016-618A (Mont. Eleventh Judicial Dist. filed

July 28, 2016) (hereinafter, “DV-16-618”). Allegations regarding the impact of MDT’s

activities and reconstruction of Big Mountain Road were central to the Brishkas’ defense

in DV-16-618. Brishkas proffered expert witness testimony regarding MDT’s activities

surrounding the Big Mountain Road construction and the impact it had on the volume of

water entering the pond during the August 2013 storm event. However, due to the

Brishkas’ failure to timely disclose their expert, the district court limited the testimony to

the matters contained in the expert’s initial expert disclosure. Despite their claims and

proffered evidence that MDT’s Big Mountain Road reconstruction activities caused the

pond failure, neither the Coveys nor the Brishkas joined MDT as a party in DV-16-618. In

April 2018, the district court presided over a three-day jury trial on the matter. During the

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trial, the district court ruled, as a matter of law, that maintenance of the pond constituted

an abnormally dangerous condition warranting the application of strict liability. The jury

in DV-16-618 returned a verdict against the Brishkas and awarded damages to the Coveys.

¶6 The Brishkas appealed. In July 2019, this Court affirmed the district court’s pretrial

and trial rulings in Covey v. Brishka, 2019 MT 164, 396 Mont. 362, 445 P.3d 785

(“The [d]istrict [c]ourt did not err when it determined the Brishkas were strictly liable for

any damage their pond might cause because it constituted an abnormally dangerous

condition.” Covey, ¶ 32; “The [d]istrict [c]ourt did not abuse its discretion when it limited

the scope of expert testimony to what the Brishkas included in their initial expert disclosure

and granted Coveys’ [motion in limine.]” Covey, ¶ 66; “[T]he [d]istrict [c]ourt did not err

when it excluded evidence at trial that [MDT] was potentially at fault for the Coveys’

damages.” Covey, ¶ 68).

¶7 Following our decision in Covey, MDT filed its second motion for summary

judgment on the Brishkas’ remaining claims for inverse condemnation, negligence, and

attorney fees and costs, respectively Counts I, III, and V. MDT argued that, in DV-16-618,

the Brishkas had a full and fair opportunity to litigate not only the issue of liability for harm

resulting from the breach of the pond, but also the cause of the breach of the pond. MDT

argued that because the district court in DV-16-618 concluded the Brishkas were strictly

liable for any damage caused by their maintenance of the private fishpond, the Brishkas

were collaterally estopped from relitigating the issues in this action.

¶8 On April 20, 2020, the District Court granted summary judgment on all three counts.

The court concluded that the Brishkas were collaterally estopped from relitigating, as part

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of their negligence and inverse condemnation claims in the present matter, the issues of

proximate cause and damages for the breach of the pond and the impact of MDT’s

reconstruction of Big Mountain Road. The court granted MDT summary judgment on

Count V for attorney fees and costs. Brishkas appeal.

STANDARD OF REVIEW

¶9 We review de novo a district court’s grant or denial of summary judgment.

Crane Creek Ranch, Inc. v. Cresap, 2004 MT 351, ¶ 8, 324 Mont. 366, 103 P.3d 535.

Summary judgment is appropriate when there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. Borges v. Missoula Cty.

Sheriff’s Office, 2018 MT 14, ¶ 16, 390 Mont. 161, 415 P.3d 976. To determine whether

a genuine issue of material fact exists, we view all evidence and draw all reasonable

inferences in the light most favorable to the non-moving party. McLeod v. State ex rel.

Dep’t. of Transp., 2009 MT 130, ¶ 12, 350 Mont. 285, 206 P.3d 956. If the moving party

satisfies its burden by demonstrating there are no genuine issues of material fact and the

party is entitled to judgment as a matter of law, the burden then shifts to the non-moving

party to prove, by more than mere denial and speculation, that a genuine issue does exist.

Valley Bank v. Hughes, 2006 MT 285, ¶ 14, 334 Mont. 335, 147 P.3d 185. The non-moving

party cannot create a genuine issue of material fact by putting its own interpretations and

conclusions on an otherwise clear set of facts or by making conclusory statements.

Sprunk v. First Bank Sys., 252 Mont. 463, 466, 830 P.2d 103, 105 (1992)

(“conclusory statements do not rise to the level of genuine issues of material fact . . . .”).

“If no genuine issues of material fact exist, a court must determine whether the facts entitle

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the moving party to judgment as a matter of law.” Borges, ¶ 16. We review conclusions

of law for correctness. Valley Bank, ¶ 15.

DISCUSSION

¶10 Whether the District Court erred in granting MDT’s motion for summary judgment,
concluding the doctrine of collateral estoppel precluded the Brishkas from pursuing their
claims of inverse condemnation, negligence, and attorney fees and costs.

¶11 Collateral estoppel, or issue preclusion, bars litigants from reopening an issue that

was litigated and determined in a prior suit. Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15,

331 Mont. 281, 130 P.3d 1276. It also prevents relitigation of determinative facts that were

actually or necessarily decided in a prior action. Baltrusch, ¶ 25 (emphasis omitted)

(citing Haines Pipeline Constr. v. Montana Power Co., 265 Mont. 282, 288, 876 P.2d 632,

636 (1994)). Like res judicata, or claim preclusion, the doctrine of collateral estoppel

embodies a judicial policy that favors finality to litigation and helps “prevent parties from

incessantly waging piecemeal, collateral attacks against judgments.” Baltrusch, ¶ 15

(citing Kullick v. Skyline Homeowners Ass’n., 2003 MT 137, ¶ 17, 316 Mont. 146,

69 P.3d 225; Olympic Coast Inv., Inc. v. Wright, 2005 MT 4, ¶ 26, 325 Mont. 307,

105 P.3d 743). “The doctrines deter plaintiffs from splitting a single cause of action into

more than one lawsuit, thereby conserving judicial resources and encouraging reliance on

adjudication by preventing inconsistent judgments.” Baltrusch, ¶ 15 (citing Smith v.

Schweigert, 241 Mont. 54, 59, 785 P.2d 195, 198 (1990); Allen v. McCurry, 449 U.S. 90,

94 (1980)). Collateral estoppel bars relitigation of an issue if four elements are met: (1) an

identical issue raised was previously decided in a prior adjudication; (2) a final judgment

on the merits was issued in the prior adjudication; (3) the party against whom collateral

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estoppel is asserted was a party or in privity with a party in the prior adjudication; and

(4) the party against whom issue preclusion is asserted was afforded a full and fair

opportunity to litigate any issues that may be barred. Baltrusch, ¶ 18.

¶12 Brishkas’ appeal is self-limited to a challenge only of the first element,

issue identity, contending it has not been satisfied. Accordingly, we need only address

whether Brishkas raise an identical issue in this matter that was previously raised and

decided in DV-16-618. To satisfy issue identity, the parties must have litigated the

“identical issue” or “precise question” in the prior action. Estate of Watkins v. Hedman,

Hileman & Lacosta, 2004 MT 143, ¶ 33, 321 Mont. 419, 91 P.3d 1264. We compare the

pleadings, evidence, and circumstances surrounding the two actions to determine whether

the issues decided in the prior adjudication are identical to those presented in the current

matter. Baltrusch, ¶ 25 (internal citation and quotation marks omitted). To determine

whether the issue is substantively identical, a court “does not equate an issue with elements

of a cause of action; rather, the bar extends to all questions essential to the judgment and

actively determined by a prior valid judgment.” Baltrusch, ¶ 25 (internal quotation marks

omitted). Simply because two cases arise from the same facts or transaction does not

necessarily mean each involve identical issues. Watkins, ¶ 33. “Nevertheless, consistent

with the purpose of promoting judicial economy, we have justified applying collateral

estoppel when the ‘issues are so intertwined that to decide the issue before it, the district

court would have to rehear the precise issue previously decided.’” Baltrusch, ¶ 25 (quoting

Martelli v. Anaconda-Deer Lodge County, 258 Mont. 166, 169, 852 P.2d 579, 581 (1993)).

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¶13 In Count I of their Complaint, Brishkas assert a claim of inverse condemnation

against MDT. They allege that MDT took the Brishkas’ property (1) when it designed,

constructed, and rebuilt Big Mountain Road, altering the drainage basin to discharge

unnatural storm waters upon the Brishkas’ property; and (2) when the unnatural storm

waters breached the dam of the Briskas’ pond, causing it to burst and damage the existing

natural drainage below the pond. In Count III of their Complaint, the Brishkas assert a

negligence claim. The Brishkas allege MDT owed a duty of reasonable care to the Brishkas

when designing, routing, constricting, and reconstructing Big Mountain Road, along and

above the Brishkas’ property and that MDT breached its duty of care. Proof of proximate

cause is an essential element of both inverse condemnation and negligence claims.2 A

claim for inverse condemnation requires proof “(1) that the public improvement was

deliberately planned and built; and (2) that, as planned and built, the public improvement

proximately caused damage to the plaintiff’s property.” Deschner v. State, 2017 MT 37,

¶ 22, 386 Mont. 342, 390 P.3d 152. A plaintiff asserting a claim for negligence must prove

2
Brishkas rely on our decision in Stewart v. Liberty Northwest Ins. Corp., 2013 MT 107, ¶ 24,
370 Mont. 19, 299 P.3d 820, to argue that “[t]he fact that [a prior action] and the current action
both involved questions regarding causation does not mean the issues were identical.” Stewart is
factually distinguishable. The causation issues in Stewart arose from Stewart’s claims for workers’
compensation benefits. The causation issue in the first proceeding specifically dealt with Stewart’s
potential entitlement to an increased impairment rating given the overall deterioration of her
condition, including pain symptoms. Stewart, ¶ 24. The subsequent proceeding involved whether
Stewart was still suffering from acute pain as a result of her initial work-related injury and whether
the insurer continued to be liable for Stewart’s pain medication. Stewart, ¶ 24. We held that
Stewart’s entitlement to payment for her pain patches was a different question than her entitlement
to an increased impairment rating, thus the causation issue involved in the two claims was distinct.
Unlike Stewart, however, the causation element in DV-16-618 and the current matter is not
distinct. In both instances, the causation issue turns on whether MDT’s conduct in reconstructing
Big Mountain Road caused the pond failure and the resulting damages.
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four essential elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant

breached that duty, (3) the breach was the actual and proximate cause of an injury to the

plaintiff, and (4) damages resulted. Not Afraid v. State, 2015 MT 330, ¶ 13, 381 Mont. 454,

362 P.3d 71 (quotation marks omitted) (quoting Peterson v. Eichhorn, 2008 MT 250, ¶ 23,

344 Mont. 540, 189 P.3d 615 (citations omitted)).

¶14 On appeal, Brishkas contend that MDT proximately caused the breach of the pond.

A careful reading of Covey establishes that the Brishkas raised the identical issue in

DV-16-618. In DV-16-618, the Brishkas’ defense was that MDT caused or contributed to

the Coveys’ injuries. Covey, ¶¶ 63-64. The district court granted Coveys’ motion in limine

to exclude expert testimony that would apportion any liability to MDT because the

Brishkas had failed to disclose in their initial expert witness disclosure any expert to testify

regarding the impact of the MDT construction. Covey, ¶¶ 9-10, 63, 66. On their appeal in

Covey, the Brishkas challenged the district court’s exclusion of this evidence. This Court

not only affirmed the specific exclusion of the expert testimony but also, more broadly,

affirmed the district court’s exclusion of evidence at trial that MDT was at fault or

contributed to the Covey’s damages. Covey, ¶ 68.

¶15 The analysis of proximate cause under strict liability is identical to that required for

a prima facie showing of negligence. Dvorak v. Metador Serv., Inc., 223 Mont. 98, 106,

727 P.2d 1306, 1311 (1986). Similarly, the analysis of proximate cause in the context of

an inverse condemnation claim is indistinguishable from the analysis of proximate cause

in the context of a negligence claim. See Thelen v. Billings, 238 Mont. 82, 86,

776 P.2d 520, 523 (1989) (“Liability, in any cause of action, attaches if the plaintiff can

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prove first that defendant’s act is a cause in fact of injury and then that the injury is the

direct or indirect result, proximately caused by the negligent act.”). Here, the element of

proximate cause pled in DV-16-618 and the current action is indistinguishable as it relates

to the cause of the breach of the pond. The district court’s judgment in DV-16-618, that

the Brishkas were strictly liable for maintaining a private, 4.5 million-gallon pond on their

property, necessarily determined the issue of proximate cause. Brishkas cannot now avoid

this legal finding by blaming MDT for causing the same damages under theories of

negligence or inverse condemnation. The Brishkas could have advanced the same facts in

DV-16-618 by either joining MDT as a party in the litigation or by properly and timely

disclosing its expert witness testimony. The failure of a named defendant to join another

alleged joint tortfeasor as a third-party defendant in the primary negligence action, when

no obstacle prevented doing so, precludes the defendant from later separately seeking

contribution from that individual in a subsequent action. See Metro Aviation, Inc. v.

United States, 2013 MT 193, ¶¶ 19-21, 371 Mont. 64, 305 P.3d 832 (analyzing

§ 27-1-703, MCA).

¶16 Consequently, we conclude proximate cause of the breached pond was already

raised and decided by the district court in DV-16-618 and affirmed by this Court in Covey.

Therefore, Brishkas’ negligence and inverse condemnation claims are precluded as a

matter of law, both of which are premised on their allegations that MDT’s activities and

construction of Big Mountain Road caused the breach of the pond.

¶17 For similar reasons, collateral estoppel prevents Brishkas from raising the issue of

damages in the instant proceeding. Brishkas seek compensation for damages related to the

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breach of the pond, its reconstruction, and any downstream claims against the

Brishka Trust. We held in Covey, however, that the Brishkas were “strictly liable for any

damage their pond might cause because it constituted an abnormally dangerous condition.”

Covey, ¶ 32 (emphasis added). Strict liability attaches to the property owner’s

responsibility for all damages, “even if he acted with reasonable care.” Covey, ¶ 22

(citations omitted). The damages Brishkas claim in this case resulted from, and are a

natural consequence of, the breach of the pond—an event for which the Brishkas have

already been adjudged strictly liable pursuant to the district court’s judgment in DV-16-618

and this Court’s decision in Covey. Because Brishkas have not alleged or shown damages

other than those resulting from an event for which, as a matter of law, they are strictly

liable, the Brishkas cannot prove the damage element of either their negligence or inverse

condemnation claims, a consequence that is fatal to both claims. See Orr v. State,

2004 MT 354, ¶ 62, 324 Mont. 391, 106 P.3d 100 (discussing accrual of negligence claims,

noting that “in actions of negligence, damage is of the very gist and essence of the

plaintiff’s cause”) (internal quotation marks and citation omitted); see also Deschner,

¶¶ 19, 22 (“damages that may have been caused by a potential inverse condemnation are

indistinct from the damages that may have been caused by any potential negligence . . . .”).

Our final judgment in Covey entitles MDT to summary judgment on the issue of damages

in Brishkas’ inverse condemnation and negligence claims. While Brishkas are collaterally

estopped from relitigating causation, they are also collaterally estopped, separately and

independently, from relitigating the damages element.

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¶18 Brishkas nonetheless argue that unity of damages between two proceedings

provides no basis for issue identity. Brishkas rely on Lund v. State Compensation Mut. Ins.

Fund, 263 Mont. 346, 351, 868 P.2d 611, 614 (1994), to support their argument. In Lund,

an injured employee received a determination in district court settling his workers’

compensation benefits. Following payment of the benefits, the employee filed a second

action to pursue a redetermination of entitlement benefits using “indemnity benefits” under

different provisions because he could obtain a better determination of benefits for his

injuries. Importantly, in Lund, this Court refused to apply collateral estoppel based upon

the unique structure of the Workers’ Compensation Act and multiple disparate statutory

criteria for Lund’s claims. Lund, 263 Mont. at 349, 868 P.2d at 613 (“Section 39-71-

709(3), MCA (1985), provides in pertinent part that ‘[a] worker who has elected to proceed

under 39-71-703 may withdraw his election at any time and is entitled to receive indemnity

benefits under 39-71-705 through 39-71-708 . . . .”) (Emphasis added.) This Court affirmed

the lower court’s ruling that collateral estoppel did not apply because the issues

surrounding the statutory theories of permanent partial disability benefits and indemnity

benefits were not identical. Lund, 263 Mont. at 351, 868 P.2d at 614. Thus, the injured

employee could recover under either benefit code. The Court further concluded the

subsequent proceeding was not estopped because the statutes upon which these disparate

claims were brought specifically allowed the separate claims. Brishkas’ claims are

different from those pursued in Lund. Although Brishkas’ inverse condemnation claim

involves additional elements, strict liability, negligence, and inverse condemnation share a

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common causation element, the proof of which is identical for all claims. Further, the plain

language under these claims do not specifically allow subsequent, separate claims.

¶19 Brishkas also contend the District Court concluded issue identity was satisfied

because of common evidence between the actions. They maintain the District Court, as

part of its explanation that all issues were the same between the two matters, expressly

based its decision on the fact that the expert witness testimony the Brishkas intended to

present in the current matter was the same evidence they intended to offer in Covey.

Brishkas cite Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 71, 345 Mont. 12, 192 P.3d 186,

for the proposition that “where the claims and issues raised in consecutive suits are

different, the subsequent use of evidence that was relevant in the first suit does not

constitute relitigation.” Brishkas maintain that “the fact that each action arises from the

same transaction [facts] does not mean that each involve the same issues.” Watkins, ¶ 33.

Brishkas statements of the law are correct. However, the District Court did not

“expressly base its decision” on this fact. To the contrary, the court noted the common

evidence in support of its conclusion that the identical issue of proximate cause had been

raised and resolved in DV-16-618. Though a court may not rely entirely on the sameness

of the evidence or that two actions arise from the same transaction or facts, a court is

permitted to consider such similarities as a factor in its analysis. The court was permitted

to compare the pleadings, evidence and circumstances surrounding the two cases in

reaching its conclusion, and we do not conclude that the court based its entire decision on

this fact.

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¶20 As Brishkas’ claims for inverse condemnation and negligence fail as a matter of

law, there is no basis for the Brishkas’ claim for attorney fees and costs pursuant to

§§ 70-30-305 and -306, MCA, allowing for an award of attorney fees and costs to the

prevailing party in an appeal of a condemnation. We affirm the District Court’s decision

that, as a matter of law, MDT is entitled to summary judgment on the Brishkas’ claim for

attorney fees and costs because the predicate inverse condemnation and negligence claims

fail.

¶21 Brishkas also argue on appeal that collateral estoppel does not preclude their inverse

condemnation claim because they have a constitutional right to reimbursement for a

government taking under Article II, Section 29, of the Montana Constitution. This

argument conflates claims with issues. A litigant cannot avoid collateral estoppel simply

by reframing the same issues or raising new arguments. Baltrusch, ¶ 25. A new argument

is not necessarily a new issue.

If a new legal theory or factual assertion put forward in the second action is
related to the subject-matter and relevant to the issues that were litigated and
adjudicated previously, so that it could have been raised, the judgment is
conclusive on it despite the fact that it was not in fact expressly pleaded or
otherwise urged.

Baltrusch, ¶ 25 (emphasis in original) (internal quotation marks omitted) (quoting Haines,

265 Mont. at 288-89, 876 P.2d at 636-37). The Brishkas’ inverse condemnation claim in

this matter is simply a new legal theory for the same issue litigated and adjudicated in

DV-16-618. The Brishkas cannot avoid being collaterally estoppel by relabeling the breach

of the pond as a taking by MDT.

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¶22 Brishkas further argue that proof of negligence is not required to recover under

inverse condemnation,3 and the criteria for recovery under Covey and the current matter

examine different issues resulting in the same damages. However, to recover under their

inverse condemnation claim, Brishkas would have to relitigate the elements of causation

and damages, as inverse condemnation requires proof of both. Although Brishkas’ inverse

condemnation claim involves additional elements, the identity issue analysis is not

affected. The District Court’s ruling does not negate Brishkas’ right to just compensation

under Article II, Section 29, as they argue. Rather, the District Court correctly concluded

Brishkas are precluded from establishing necessary elements of the claim, namely

proximate cause and damages. Contrary to Brishkas’ argument is the express requirement

that an inverse condemnation claimant prove causation and damages. Deschner, ¶¶ 19, 22.

Because both issues were previously raised in DV-16-618, and the district court issued a

final judgment on both issues, we conclude the Brishkas cannot now reassert the issues

under a claim of inverse condemnation.

3
Brishkas rely on Deschner, ¶ 16, to argue that Montana’s case law does not require a showing of
negligence or a theory of negligence when faced with deliberate or intentional acts. They further
argue that “[c]ontrary to the District Court’s conclusion, nothing in this Court’s determinations
that both analyses require determination of factual cause provided a basis for wholesale adoption
of tort theory, i.e. strict liability, in the analysis.” We note that the plaintiffs in Deschner asserted
claims for inverse condemnation and negligence in their action, but none of the elements of either
claim had been previously adjudicated, unlike the elements of causation and damages in this case.
Further, our decision in Deschner articulated that in the context of the plaintiffs’ negligence claim,
“causation of damages was a contested issue that was common to both the negligence and inverse
condemnation claims. The damages that may have been caused by a potential inverse
condemnation are indistinct from the damages that may have been caused by any potential
negligence” by the State.
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¶23 As a final argument, Brishkas maintain there is a genuine issue of material fact

precluding granting summary judgment because the parties dispute whether MDT’s

reconstruction of Big Mountain Road caused the breach of the pond. Consistent with our

forgoing analysis, we conclude this argument must fail.

CONCLUSION

¶24 The District Court correctly concluded that all elements of collateral estoppel were

satisfied. Brishkas’ inverse condemnation, negligence, and attorney fees and costs claims

are therefore precluded. Accordingly, MDT is entitled to summary judgment as a matter

of law.

¶25 Affirmed.

/S/ LAURIE McKINNON

We concur:

/S/ MIKE McGRATH
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE

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