No. 91

-118 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

GERALD F. ANDERSON, Plaintiff and Appellant,-VSSTATE OF MONTANA, 

## SEP24

### 1994

CLEHKOFSUPRENiECOURT. 5iATEOFlvlONTANA 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 ClerkJustice 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 returnhis driver's license to him after having been ordered to do so in a prior judicial proceeding.
we affirm. The dispositive issue on appeal iswhether 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 

### inMissoula County by Montana Highway Patrol OfficerJamesWierson on a charge ofdriving under the influence of alcohol in violation of 5 61

-8

-401, MCA. Andersonwas transported to theMissoula City PoliceDepartment 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 2and, 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 reviewof the seizure and attendant ninety day suspension of his driver's license. Missoula Deputy County Attorney Betty Wing represented the Department ofJustice in thatproceeding, 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 departmentwas 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 courtagreed withAnderson'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 requiringthatAnderson's licensebe 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

3having 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 negligencedidnot proximately cause injuriestoAnderson. 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 judgmentmay be granted on the issue of liability alone, reserving

4the questionof damages,where appropriate. Rule 56(d), M.R.Civ.P. In Smithv. Schweigert (1990), 241Mont. 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 sameparties from relitigating the same cause of action, while collateral estoppel bars the same parties, or their privies, fromrelitigating issueswhichhavebeendecided 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 theprior 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.
5Of 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 representthe 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 personhad been driving orwas in actual physical control of a vehicle upon the ways 

### of this state open to the public, while under the influenceofalcohol, whether the person was placed under arrest, and whether such person refused to submitto the test. The court shall thereupon determinewhether thepetitioner isentitled toa license or is subject to suspension as heretofore provided. [Emphasis added.] Under this statute,the judicial review proceedingwas 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 refuseto takea breathalyzer test, the courtultimately determined that Anderson was entitled to his driver's license and was not 6subject 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 indenying Anderson's motion forpartial summary judgment. Affirmed.

Chief Justice

7

### September

### 24, 1991 CERTIFICATEOFSERVICE 

### Ihereby certifythat thefollowingorderwas sentby United Statesmail,prepaid,tothe followingnamed: Terry

### G.Sehestedt Attorney at

### Law P.O. 

### Box 8281 Missoula,MT 59802 RobertJ.

### Phillips Phillips&

### Williams Ste. 104,

### Central Square Missoula,MT 59802 EDSMITH CLERKOFTHESUPREME COURT