No. 91-118
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
GERALD F. ANDERSON,
Plaintiff and Appellant,
-VS-
STATE OF MONTANA, SEP 2 4 1994
Defendant and Respondent. CLEHKOFSUPRENiECOURT.
5 i A T E OF lvlONTANA
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry G. Sehestedt, Missoula, Montana
For Respondent:
Robert J. Phillips; Phillips & Williams, Missoula,
Montana
Submitted on Briefs: July 2, 1991
Filed:
I
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
The appellant, Gerald Anderson, appeals from a judgment
entered on a jury verdict rendered in the District Court of the
Fourth Judicial District, Missoula County, in favor of the
defendant, State of Montana. Anderson filed suit in the District
Court seeking to recover from the State damages which he claimed
to have sustained as result of (1) the wrongful seizure and
suspension of his driver's license, and (2) the failure of the
Department of Justice to timely return his driver's license to him
after having been ordered to do so in a prior judicial proceeding.
we affirm.
The dispositive issue on appeal is whether the District Court
erred in denying the appellant's motion for partial summary
judgment in which Anderson asserted that the issue of the State's
liability was determined in a prior judicial proceeding and that
further litigation of that issue was barred by the doctrine of
collateral estoppel.
On June 24, 1986, Anderson was arrested in Missoula County by
Montana Highway Patrol Officer James Wierson on a charge of driving
under the influence of alcohol in violation of 5 61-8-401, MCA.
Anderson was transported to the Missoula City Police Department for
further processing. At the police department Anderson was
videotaped performing sobriety tests, advised of his Miranda
rights, and requested to take a breathalyzer test. During the
course of the booking procedure, Officer Wierson determined that
Anderson had refused to take the breathalyzer test as requested
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and, therefore, he seized Anderson's driver's license pursuant to
5 61-8-402, MCA.
On July 3, 1986, Anderson filed a petition in district court
pursuant to 5 61-8-403, MCA, seeking judicial review of the seizure
and attendant ninety day suspension of his driver's license.
Missoula Deputy County Attorney Betty Wing represented the
Department of Justice in that proceeding, Cause No. 64983. On July
11, 1986, a hearing was conducted before the district court at
which time the videotape of the booking procedure at the police
department was viewed. Anderson contended that he had not refused
to submit to a breathalyzer test but was simply invoking his right
to counsel. On August 8, 1986, after reviewing briefs submitted
by counsel, the court agreed with Anderson's contention. The court
ruled that the State's treatment of Anderson's assertion of his
right to counsel as a refusal to take a breathalyzer test was
"improper" and issued an order reversing the suspension of
Anderson's license and directing the Department of Justice to
return it to him. The State did not appeal the court's decision.
Apparently, MS. Wing never notified the Department of Justice
of the court's order requiringthat Anderson's license be returned.
His license was ultimately returned to him on September 24, 1986.
On March 26, 1987, Anderson filed the present action, Cause
No. 66629, against the State to recover damages which he claimed
to have sustained as a result of (1) the wrongful seizure and
suspension of his driver's license, and (2) the failure of the
Department of Justice to timely return his driver's license after
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having been ordered to do so in the prior judicial proceeding.
Anderson sought to recover attorney's fees incurred in the prior
judicial proceeding and damages resulting from his inability to
operate his vehicle during the time in which he did not have his
driver's license.
During the course of the proceedings in Cause No. 66629,
Anderson moved for partial summary judgment and the State
subsequently made its own motion for summary judgment. Anderson
based his motion on the doctrines of res judicata and collateral
estoppel. The State based its motion on the doctrine of quasi-
judicial immunity. The District Court denied both motions.
The case was tried to a jury on November 26 and 27, 1990,
based upon a theory of negligence. The jury found that the State
was not negligent in seizing Anderson's driver's license, but was
negligent in failing to return the license after being ordered to
do so. However, the jury found that the State's negligence did not
proximately cause injuries to Anderson. The District Court entered
judgment on the jury's verdict and denied Anderson's motion for a
new trial.
The issue before the Court is whether the District Court
erred in denying Anderson's motion for partial summary judgment
as to the issue of the State's liability based on the doctrine of
collateral estoppel. Summary judgment is proper when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Rule 56(c), M.R.Civ.P. Summary
judgment may be granted on the issue of liability alone, reserving
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the question of damages, where appropriate. Rule 56(d), M.R.Civ.P.
In Smith v. Schweigert (1990), 241 Mont. 54, 58, 785 P.2d 195, 197,
this Court made the following observation regarding the doctrine
of collateral estoppel:
Collateral estoppel is a form of res judicata.
Quite simply, the doctrine "precludes relitigation of
issues actually litigated and determined in a prior
suit." Lawlor v. National Screen Service (1955), 349
U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122. It differs from
res judicata, in that res judicata bars the same parties
from relitigating the same cause of action, while
collateral estoppel bars the same parties, or their
privies, from relitigating issues which have been decided
with respect to a different cause of action. Brault v.
Smith (1984), 209 Mont. 21, 679 P.2d 236.
Collateral estoppel has three elements. These are: (1) the issue
has been decided in a prior adjudication and is identical to the
one presented; (2) a final judgment on the merits was issued; and
(3) the party against whom the plea is asserted was a party or in
privity with a party to the prior adjudication. Smith, 241 Mont.
at 58, 785 P.2d at 197; In re Marriage of Stout (1985), 216 Mont.
342, 349-50, 701 P.2d 729, 733-34.
Anderson contends that the three elements of collateral
estoppel are satisfied in the present case. Specifically, he
argues that the issue present in both cases is whether the State
was entitled to, or was justified in, seizing and suspending his
license. He argues that because the court in the prior proceeding
determined that the State was not entitled to seize his license,
the State was estopped in the present proceeding from contesting
the issue of liability. We disagree with Anderson s
characterization of the issue presented in both cases.
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Of the three elements of collateral estoppel, the identity of
issues is the most crucial. Stapleton v. First Security Bank
(1983), 207 Mont. 248, 258, 675 P.2d 83, 89. In order to satisfy
this element, the identical issue or "precise question" must have
been litigated in the prior action. Stapleton, 207 Mont. at 258,
675 P.2d at 89. Here, the judicial review proceeding did not
involve the "precise question" presented in the subsequent tort
action.
Anderson sought judicial review of the seizure and suspension
of his driver's license pursuant to 5 61-8-403, MCA. That statute
provides, in pertinent part:
Such court is hereby vested with jurisdiction and it
shall be its duty to set the matter for hearing upon 10
days' written notice to the county attorney of the county
wherein the appeal is filed and such county attorney
shall represent the state, and thereupon the court shall
take testimony and examine into the facts of the case,
except that the issues shall be limited to whether a
peace officer had reasonable grounds to believe the
person had been driving or was in actual physical control
of a vehicle upon the ways of this state open to the
public, while under the influence of alcohol, whether the
person was placed under arrest, and whether such person
refused to submit to the test. The court shall thereupon
determine whether the petitioner is entitled to a license
or is subject to suspension as heretofore provided.
[Emphasis added.]
Under this statute, the judicial review proceeding was limited
to three underlying issues. The court's findings regarding these
issues served as the bases on which to make its ultimate
determination of whether Anderson was entitled to a license or was
subject to suspension. Based on its finding that Anderson did not
refuse to take a breathalyzer test, the court ultimately determined
that Anderson was entitled to his driver's license and was not
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subject to suspension.
In the present action, Anderson moved for partial summary
judgment on the issue of the State's civil liability. Unlike the
judicial review proceeding, the issue in the present case did not
involve a determination of whether Anderson was entitled to his
driver's license. The issue in the present case was whether the
State, having seized and suspended Anderson's license, was civilly
liable for the seizure and suspension of the license. The issue
of the State's civil liability for the seizure and suspension of
Anderson's license was not before the court in the judicial review
proceeding, nor, under § 61-8-403, MCA, could it be. The crucial
collateral estoppel element of identity of issues, therefore, does
not exist in the present case. Accordingly, we hold that the
District Court did not err in denying Anderson's motion for partial
summary judgment.
Affirmed.
Chief Justice
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September 24, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Terry G. Sehestedt
Attorney at Law
P.O. Box 8281
Missoula, MT 59802
Robert J. Phillips
Phillips & Williams
Ste. 104, Central Square
Missoula, MT 59802
ED SMITH
CLERK O F THE SUPREME COURT