No. 94-617

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

ESTATE OF ROBERT EIDE,

Plaintiff and Respondent,

-vsJASON TABBERT,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Palmer Hoovestal, Attorney at Law, Helena,

Montana

For Respondent:

James P. Reynolds; Reynolds, Mot1 & Sherwood

Helena, Montana

Filed:

Submitted on Briefs: April 20, 1995

Decided: July 27, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

Jason Tabbert (Tabbert) appeals from the judgment entered

against him by the First Judicial District Court, Lewis and Clark

County, in the amount of $55,579.11, and from the court's

underlying order granting partial summary judgment to the Estate of

Robert Eide on the issue of liability. We affirm.

In August of 1990, Robert Eide (Eide) suffered lacerations and

a broken jaw in an altercation between himself and Tabbert. As a

result of the altercation, the Lewis and Clark County Attorney

filed a petition in Youth Court alleging that Tabbert was a

delinquent youth for having committed the offense of aggravated

assault against Eide. Following a jury trial in November of 1990,

in which the jury found that Tabbert had committed aggravated

assault, Tabbert was adjudicated a delinquent youth. Tabbert did

not appeal.

Eide subsequently filed a tort action against Tabbert for

assault and battery. After Tabbert answered the complaint, Eide

moved for partial summary judgment on the issue of liability. He

argued that the jury's finding in Youth Court that Tabbert

committed aggravated assault against him, and the Youth Court's

adjudication that Tabbert was a delinquent youth, established

Tabbert's liability in the civil action as a matter of law. Eide

subsequently was killed in an unrelated automobile accident and his

estate was substituted as plaintiff. (The estate is referred to as

Eide herein.)

In the meantime, Tabbert petitioned the Youth Court for

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postconviction relief and a new trial based on newly-discovered

evidence. The "newly-discovered evidence" consisted of statements

from witnesses to the altercation between Tabbert and Eide who were

prepared to testify that someone other than Tabbert was responsible

for Eide's broken jaw. The Youth Court denied the petition and

Tabbert appealed. We determined that the evidence could have been

discovered prior to trial through due diligence and, therefore,

that it did not satisfy applicable "newly-discovered evidence"

criteria. In re Matter of J.R.T. (1993), 258 Mont. 520, 523-24,

853 P.2d 710, 712. We held that the Youth Court did not abuse its

discretion in denying Tabbert's motion for postconviction relief.

Matter of J.R.T., 853 P.2d at 7'12.

Following our decision in Matter of J.R.T., the District Court

granted Eide's motion for partial summary judgment on the liability

issue. The court determined, based on the jury's aggravated

assault finding and Tabbert's adjudication as a delinquent youth,

that the doctrine of collateral estoppel applied to conclusively

establish Tabbert's liability for purposes of the civil litigation.

The damage issue was tried to a jury and resulted in a verdict

against Tabbert for $55,579.11. Tabbert appeals.

Tabbert argues that the District Court incorrectly applied the

doctrine of collateral estoppel in granting partial summary

judgment to Eide on the liability issue. He contends that,

although the Youth Court jury determined that he committed an

aggravated assault against Eide, the actual cause of Eide's jaw

injury remains a fact issue to be resolved by the civil jury. On

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that basis, he contends that he should have been permitted to

introduce evidence during the civil trial that someone other than

himself caused Eide's jaw injury. A district court's conclusion

that the doctrine of collateral estoppel applies is a legal

conclusion which we review to determine whether it is correct.

Holtman v. 4-G's Plumbing and Heating (19941, 264 Mont. 432, 435-

36, 872 P.2d 318, 320.

The doctrine of collateral estoppel precludes litigation of

issues determined in an earlier action. Anderson v. State (I99I),

250 Mont. 18, 21, 817 P.2d 699, 701 (citation omitted). We

expressly have held that collateral estoppel prohibits the

litigation of an issue in a civil trial that has been litigated in

a prior criminal trial. Aetna Life and Cas. Ins. Co. v. Johnson

(19841, 207 Mont. 409, 414, 673 P.2d 1277, 1280. Indeed, we stated

that "the rigorous safeguards against an unjust criminal

conviction, especially the requirement of proof beyond a reasonable

doubt . . make collateral estoppel between criminal and civil

trials less severe than between successive civil trials." Aetna,

673 P.2d at 1280. The Aetna rationale is applicable here,

notwithstanding the difference between Youth Court proceedings and

criminal proceedings in a district court, because the beyond a

reasonable doubt standard applied to the Youth Court jury finding.

See § 41-5-521(2), MCA.

For the doctrine of collateral estoppel to apply, the party

asserting the doctrine must establish that: (1) the issue decided

in the prior action was identical to that in the present action;

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(2) a final judgment on the merits was rendered in the prior

action; and (3) the party against whom the doctrine is invoked was

a party, or in privity with a party, in the prior action. Aetna,

673 P.2d at 1279. Here, it is undisputed that the second and third

elements of the doctrine are satisfied. The second element is

satisfied by virtue of the Youth Court's final adjudication of

Tabbert as a delinquent youth based on the jury's finding that he

committed the aggravated assault on Eide. Regarding the third

element, Tabbert is the party against whom the District Court

applied the doctrine and he was the party in the prior Youth Court

action. Strict identity of parties is not essential under these

circumstances, so long as the party against whom the doctrine is

advanced remains the same or is in privity with a party to the

prior action. Aetna -I 673 P.2d at 1279.

All that remains is to determine whether the issue determined

in the Youth Court proceeding is identical to the liability-related

causation issue presented in Eide's civil action. This first

element of collateral estoppel is the most crucial. Haines

Pipeline Const. v. Montana Power (19941, 265 Mont. 282, 288, 876

P.2d 632, 636. However, "[tlhe term ‘issue' does not equate with

the elements of a cause of action." Haines, 876 P.2d at 636.

Moreover, collateral estoppel applies to all questions, including

relitigation of factual matters, which were necessary for the prior

judgment. Haines, 876 P.2d at 636.

The issue before us is substantially similar to that presented

in Aetna. There, Wayne Johnson (Johnson) had been convicted of

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criminal mischief and arson for burning his business. Aetna, 673

P.2d at 1278. Johnson's insurer, Commercial Union, filed an action

against Johnson to establish that it was not obligated to reimburse

Johnson for his losses under the insurance policy. Aetna

subsequently intervened in an effort to recover amounts paid to its

insureds for damage to surrounding businesses under the liability

portion of Johnson's policy; Aetna's claim for recovery required it

to establish that Johnson's negligence, rather than his intentional

acts, caused the fire. Aetna -, 673 P.2d at 1278.

Commercial Union moved for summary judgment, arguing that

collateral estoppel should prevent relitigation of the nature of

Johnson's acts. Aetna, 673 P.2d at 1278. Aetna responded that the

circumstantial evidence supporting Johnson's conviction and the

lack of a sufficient arson investigation left factual issues to be

determined by the civil jury in spite of Johnson's criminal

conviction. -,Aetna 673 P.2d at 1278. We concluded on appeal that

"collateral estoppel barIred1 relitigation of the issue of whether

Johnson intentionally set the fire on his business premises."

Aetna, 673 P.2d at 1280. We determined that the issue in the

criminal arson proceeding was identical to the key issue in the

civil proceeding; namely, whether Johnson intentionally set fire to

his business. Aetna - I 673 P.2d at 1280.

Aetna is virtually indistinguishable from the present case and

mandates the same result. Tabbert's adjudication as a delinquent

youth was based on the jury's finding that he committed the offense

of aggravated assault. An element of that offense is that the

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person charged "cause[dI serious bodily injury to another."

Section 45-5-202(l), MCA. Eide's serious bodily injury was his

broken jaw; testimony that Tabbert caused the broken jaw was

presented during the Youth Court proceedings in support of the

charged aggravated assault which the jury found Tabbert had

committed. Matter of J.R.T., 853 P.2d at 712.

We conclude that the issue of whether Tabbert caused Eide's

broken jaw was litigated in the Youth Court proceedings and is

identical to the key liability-related causation issue which

Tabbert argues remains to be determined in Eide's civil action.

Therefore, we further conclude that Eide has established the first

element necessary for application of the doctrine of collateral

estoppel. All three elements having been satisfied, we hold that

the District Court did not err in granting partial summary judgment

on liability to Eide based on application of the doctrine of

collateral estoppel.

Citing to the Restatement (Second) of Judgments 5 28(5) (c)

(1980), Tabbert argues alternatively that there is a "clear and

convincing need for a new determination" of causation in the civil

action because he "did not have an adequate opportunity or

incentive to obtain a full and fair adjudication in the initial

action." This argument is without merit.

Section 28 of the Restatement (Second) of Judgments sets forth

exceptions to the general rule of issue preclusion. The exception

contained in subsection (5) (c) applies, by its express terms, only

where conduct of the opposing party or other special circumstances

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result in a party's inadequate opportunity or incentive to obtain

a full adjudication in the earlier case. Tabbert does not argue

that conduct or misconduct by the prosecution prevented a full and

fair adjudication of the causation issue in the Youth Court

proceedings. Nor does Tabbert assert any other "special

circumstances" which precluded him from having an adequate

opportunity or incentive to obtain a full and fair adjudication in

the Youth Court proceedings. Thus, the express circumstances which

may bring the § 28(S) (c) exception into play are not met here.

Tabbert's contention that his Youth Court counsel may not have

had an adequate incentive to discover and present additional

causation-related evidence is entirely speculative and, in any

event, unavailing. The primary focus of the narrow exception to

the issue preclusion rule on which Tabbert relies is not inadequate

opportunity or incentive to obtain a full adjudication; the primary

focus is whether conduct of the adversary or other special

circumstances result in inadequate opportunity or incentive. See

Restatement (Second) of Judgments 5 28(S) (c) (1980). As stated

above, neither of these foundational requirements for application

of this exception to the rule of issue preclusion is established

here.

Affirmed.

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we concur: