No. 91-118 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

GERALD F. ANDERSON, 

Plaintiff and Appellant, 

-VSSTATE OF MONTANA, SEP 24 1994 

CLEHKOFSUPRENiECOURT. 

5iATE OF lvlONTANA 

Defendant and Respondent. 

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 

2 
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 

3 
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 quasijudicial 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 

4 
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. 

5 
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 

6 
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 

7 
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 OF THE SUPREME COURT