Brishka v. State

• Citation: 2021 MT 129,487 P.3d 771
• Decision Date: 25 May 2021
• Docket Number: DA 20-0356
• Parties: 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.
• Court: United States State Supreme Court of Montana

487 P.3d 771

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.

DA 20-0356

Supreme Court of Montana.

Submitted on Briefs: March 31, 2021

Decided: May 25, 2021

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

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 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 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 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 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 1267. 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, 101 S.Ct. 411, 66 L.Ed.2d 308 (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 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....