author: JUSTICE LEAPHART CHIEF JUSTICE TURNAGE

text:
    JEFFREY FARRINGTON, Plaintiff and Appellant, v. BUTTREY FOOD AND DRUG STORES COMPANY, a Delaware corporation, Defendant and Respondent.
    No. 94-480.
    Submitted on Briefs June 16, 1995.
    Decided July 25, 1995.
    52 St.Rep. 667.
    272 Mont. 140.
    900 P.2d 277.

      For Appellant: Charles S. Lucero, Attorney at Law, Great Falls, Michael J. Best; Best Law Offices, Great Falls.
    For Respondent: Neil E. Ugrin, Gary M. Zadick; Ugrin, Alexander, Zadick & Higgins, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Jeffrey Farrington (Farrington) appeals from the August 22,1994, order of the Eighth Judicial District Court, Cascade County, granting Buttrey Food and Drug Stores Company’s (Buttrey) motion for summary judgment. We reverse.

Farrington was a deliveryman for Pennington’s, Inc., a wholesale distribution company. Pennington’s serviced, among other customers, Buttrey stores in Great Falls. Once a Pennington’s delivery person checked goods into Buttrey, the goods became Buttrey property. If a product became out of date or damaged, Pennington’s replaced the item without charge or issued a credit to Buttrey.

On March 15, 1991, Farrington was observed allegedly throwing a box containing approximately twelve bags of potato chips into the trash compactor at Buttrey’s west Great Falls store. Buttrey alleges that the box contained three bags of good potato chips (not damaged or expired) and that Farrington failed to properly credit Buttrey. Farrington acknowledged in signed handwritten and typed statements and in deposition that he had destroyed property of Buttrey without giving Buttrey credit. As a result of the incident, Buttrey revoked Farrington’s privilege to service its stores but allowed Farrington to continue to shop as a customer. Pennington’s, in turn, fired Farrington.

After his discharge from Pennington’s, Farrington obtained employment with Mancini & Groesbeck, a food brokerage company. Farrington’s job for Mancini & Groesbeck was to check retail stores (including Buttrey) to ensure that food products supplied by Mancini & Groesbeck were properly stocked and displayed. His job required that he remain in the public area of the store and, although it involved handling of product it was different from his previous job in that it did not involve product stocking, removing stock, or crediting.

Approximately one year after Buttrey revoked Farrington’s privilege of servicing its stores, Buttrey banned Farrington from entering Buttrey stores in any capacity — even as a customer. As a result of this ban, Farrington could no longer perform the required tasks for Mancini & Groesbeck and he was terminated from that job.

On May 18,1993, Farrington filed a complaint against Buttrey for tortious interference with his employment with Pennington’s and Mancini & Groesbeck. Buttrey requested, and the District Court granted, summary judgment on Farrington’s claim. Farrington appeals from this order.

The only issue on appeal is whether the District Court erred in granting Buttrey’s motion for summary judgment.

We review summary judgment orders de novo. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32.

Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. The initial burden is on the moving party to establish that there is no genuine issue of material fact; and once met, the burden shifts to the party opposing the motion to establish otherwise. [Citation omitted.]

Spain-Morrow Ranch, 872 P.2d at 331-32.

The District Court concluded there was no question of fact as to whether Buttrey acted without right or justifiable cause when it barred Farrington from servicing its stores. We disagree.

In support of its conclusion that Buttrey was justified to ban Farrington from its stores, the District Court considered that Farrington acknowledged that he improperly disposed of Buttrey’s potato chips; that Farrington admitted that there was no justification for his throwing Buttrey’s goods into the trash; that Farrington acknowledged that Buttrey was entitled to determine who may or may not deliver to its premises; and that Farrington made no showing that Buttrey’s banning a person who acknowledged destroying its property is in any way without right or justifiable cause. Additionally, the District Court found that Pennington’s fired Farrington because Farrington had a prior history of similar misconduct with other customers.

In Bolz v. Myers (1982), 200 Mont. 286, 651 P.2d 606, the seller of a business breached the sales contract in such a way as to interfere with the purchaser’s business relationships with third parties. In Bolz we adopted the test from the Restatement (Second) of Torts § 767 (1977), to establish what factors are to be considered in determining whether interference with contractual rights is “improper.” Bolz, 651 P.2d at 610. Bolz further considered the requirements to establish a prima facia case of interference with contractual or business relations, more recently set out in Richland National Bank & Trust v.

Swenson (1991), 249 Mont. 410, 419, 816 P.2d 1045, 1051:

In order to establish a prima facie case of tortious interference with business relations, the pleader must show that the acts (1) were intentional and willful; (2) were calculated to cause damage to the pleader in his or her business; (3) were done with the unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor; and (4) that actual damages and loss resulted. [Citation omitted.] Thus, in order to establish a cause of action, it must be shown that the actor intentionally committed a wrongful act without justification or excuse. [Citation omitted.] The Restatement (Second) of Torts, § 767 (1977), provides that:
In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.

Comment b of the Restatement (Second) of Torts § 767, page 28, advises that:

[t]his Section is expressed in terms of whether the interference is improper or not, rather than in terms of whether there was a specific privilege to act in the manner specified. The issue in each case is whether the interference is improper or not under the circumstances; whether, upon consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. The decision therefore depends upon a judgment and choice of values in each situation. This Section states the important factors to be weighed against each other and balanced in arriving at a judgment; but it does not exhaust the list of possible factors.

In Phillips v. Montana Education Association (1980), 187 Mont. 419, 423, 610 P.2d 154, 157, we recognized that the law, independently of a contract, imposes upon strangers to a contract a duty not to interfere with the contract’s performance.

In State Medical Oxygen v. American Medical Oxygen (1994), 267 Mont. 340, 344, 883 P.2d 1241, 1243, we held that:

If a defendant establishes the absence of a genuine issue of material fact as to one of the elements constituting the cause of action, and the plaintiff fails to come forward with proof showing the existence of a genuine issue as to that element, summary judgment in the defendant’s favor is proper. [Citation omitted.] Disputed facts are material, therefore, if they involve elements of the cause of a'ction or defense at issue to an extent that necessitates resolution of the issue by a trier of fact. [Citation omitted.] Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. [Citation omitted.]

In Phillip R. Morrow v. FBS Insurance (1989), 236 Mont. 394, 402, 770 P.2d 859, 864, we considered whether a directed verdict was appropriate where a jury could consider facts to be weak evidence supporting or opposing the existence of justification on the part of the parties. We held that “a showing that the defendant acted without right or justification is part of the plaintiff’s prima facie case in an action for intentional interference with prospective business advantage.” Phillip R. Morrow, 770 P.2d at 864 (citation omitted). We further held that “the jury could find from the evidence introduced at trial that FBS’s alleged actions were motivated without right or justification.” Phillip R. Morrow, 770 P.2d at 864. In the instant case, a jury could conclude that Buttrey was not justified in banning Farrington from its stores, thus presenting an issue of material fact.

While the District Court focuses on the seriousness of Farrington’s disposing of Buttrey’s property, it ignores, among other facts which a jury may consider important, that the potato chip incident occurred over one year before Buttrey banned Farrington entirely from its stores. Additionally, while working for Mancini & Groesbeck, Farrington was merely to check the customer area of retail stores to ensure that food products supplied by Mancini & Groesbeck were properly stocked and displayed. Farrington’s work for Mancini & Groesbeck did not involve removing products or crediting Buttrey for old or expired products. Whether, a year after the potato chip incident, Buttrey’s banning of Farrington from even the customer area of its stores was “improper” is a question of fact which precludes summary judgment.

Applying the analysis from Bolz, the four-part test expressed in Richland, and the Restatement (Second) of Torts § 767 (1977) to the instant case, we hold that Buttrey did not meet its burden of proving that there are no genuine issues of material fact. See Spain-Morrow Ranch, 872 P.2d at 331-32. Reversed.

JUSTICES TRIEWEILER, HUNT and NELSON concur.

CHIEF JUSTICE TURNAGE

respectfully dissents.

Buttrey undisputedly had the right to exclude Farrington, an admitted thief, from its stores. By its interpretation of one element of Farrington’s cause of action, the majority has kept this action alive in spite of that clear fact.

The majority interprets the third element of a cause of action for tortious interference with business relations as requiring proof that the acts were done without either right or justifiable cause on the part of the actor. I believe that element is correctly interpreted as requiring proof that the acts were done with neither right nor justifiable cause; i.e., where the acts were done either by right or with justifiable cause, the tort does not lie.

I would rule that because Buttrey undisputedly had the right to exclude Farrington from its stores, there was a failure of proof by Farrington on that element. I would therefore rule that summmary judgment was proper.

JUSTICE WEBER and JUSTICE GRAY join in the dissent of CHIEF JUSTICE TURNAGE.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    EMMA JEAN “E.J.” HANDO, Plaintiff and Appellant, v. PPG INDUSTRIES, INC., ETC., Defendant, Respondent and Cross-Appellant.
    No. 94-457.
    Submitted on Briefs March 30, 1995.
    Rehearing Denied August 29, 1995.
    Decided July 25, 1995.
    52 St.Rep. 670.
    272 Mont. 146.
    900 P.2d 281.

      For Appellant: Don Edgar Burris, Attorney at Law, Billings.
    For Respondent: W. Anderson Forsythe and Brad H. Anderson; Moulton, Bellingham, Longo & Mather, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Emma Jean Hando (Hando) appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, denying her motion for a new trial. We affirm.

The dispositive issue on appeal is whether the District Court abused its discretion in denying her motion for a new trial based on the improper admission of evidence regarding Spring Creek Coal Company (SCCC).

SCCC employed Hando as a control room operator at its mine in Decker, Montana. During a production break in the summer of 1981, SCCC assigned employees to various painting projects around the mine site. The paint, which was manufactured by PPG Industries, Inc. (PPG), was surplus paint used in a prior painting project. SCCC transferred the paint from five-gallon drums to smaller containers which then were given to painting personnel, including Hando. Neither the five-gallon drums nor the smaller containers provided to the employees contained warnings concerning health risks posed by use of the paint.

After using the paint for a period of time, Hando began experiencing physical problems which included dizziness, light-headedness, headaches, depression, and vaginal bleeding. After the painting was completed in September 1981, Hando’s symptoms slowly improved.

Seven months later, Hando began using the same PPG-manufactured paint to paint the control room where she worked. During this project, the paint was contained in one-gallon cans purchased from a supplier. She painted for one and one-half days and almost immediately experienced physical symptoms similar to those she experienced in 1981. Hando states that she lost consciousness on the second day of the control room painting project and that her symptoms increased following that incident.

Hando sought medical treatment for her symptoms which, at that time, included sensitivity to chemicals and fumes. She eventually was diagnosed as having extreme chemical sensitivity. According to her doctors, Hando was totally disabled from performing her work due to an inability to tolerate exposure to chemicals commonly found in her work environment. Several months later, while working in SCCC’s front offices, Hando retrieved a label listing several health warnings from a one-gallon can of paint she had used in painting the control room.

On October 25, 1985, Hando filed a complaint, later amended, against PPG, SCCC, and NERCO, SCCC’s parent corporation. Her claims against PPG alleged negligence and product liability based on placing a dangerous product in commerce with inadequate warnings. Hando settled her claims against SCCC. The District Court subsequently granted summary judgment in NERCO’s favor on the issue of whether it had a duty to provide a safe workplace to Hando; the court denied NERCO’s and PPG’s motions for summary judgment on the statute of limitations. All parties appealed, and we affirmed. We held, in pertinent part, that NERCO, as SCCC’s parent corporation, did not have a duty to provide Hando with a safe workplace. Hando v. PPG Industries, Inc. (1989), 236 Mont. 493, 500, 771 P.2d 956, 961. Thus, after the first appeal, only PPG remained as a party defendant.

Hando’s negligence and failure to warn claims against PPG were tried to a jury. The jury returned a verdict finding that PPG was not negligent and that PPG’s paint was not in an “unreasonably dangerous defective condition.”

Hando moved for a new trial under subsections (1), (6), and (7) of § 25-11-102, MCA. The essence of her argument in each regard was that PPG’s presentation of evidence shifting blame to SCCC permitted the jury to consider her employer’s negligence, in violation of § 27-1-703(4), MCA. The District Court denied Hando’s motion and Hando appeals.

Hando couches her argument as an error of law by the District Court in not enforcing the provisions of § 27-1-703(4), MCA, which provides, in pertinent part:

in attributing negligence among persons, the trier of fact may not consider or determine any amount of negligence on the part of any injured person’s employer or coemployee to the extent that such employer or coemployee has tort immunity under the Workers’ Compensation Act or the Occupational Disease Act of this state ....

In essence, however, her argument is that the District Court erred in admitting PPG’s evidence regarding SCCC’s safety procedures to protect its employees and alleged coercion against employees who refused to paint. PPG contends that Hando presented evidence relating to SCCC’s conduct during her own testimony and, furthermore, that she failed to object when PPG followed up by introducing additional evidence of SCCC’s conduct toward employees who were exposed to the paint.

Our standard in reviewing a district court’s ruling on a motion for a new trial is whether the court abused its discretion. Brockie v. Omo Const., Inc. (1994), 268 Mont. 519, 525, 887 P.2d 167, 170. Determinations regarding admissibility of evidence also are within the broad discretion of the trial court and we will not reverse a court’s determination absent an abuse of that discretion. King v. Zimmerman (1994), 266 Mont. 54, 65, 878 P.2d 895, 902.

The record is clear that the general subject of SCCC’s conduct and evidence regarding some of SCCC’s specific acts or omissions first were presented during Hando’s case-in-chief. Hando testified on direct examination that SCCC did not provide her with special gloves or clothing to use when painting. Regarding the respirator SCCC provided, she opined that it was designed only for dusty conditions and was not appropriate for use when painting. She also testified that, a few days after painting began, SCCC provided the employees “paint mitts” to speed the painting process and that the mitts resulted in direct contact between the paint and the employees’ hands.

Regarding the second painting project, Hando testified that SCCC again did not provide her with gloves, special clothing, or the correct respirator. She told the jury that the label on the one-gallon paint can provided to her recommended using the paint in a well-ventilated area. In response to that recommendation, she stated that she took the only precautions available by running several fans in the room and opening a window, but that those precautions did not sufficiently ventilate the control room. Hando also testified that SCCC again provided respirators, but that they were ineffective against the paint fumes. It appears that Hando’s SCCC-related testimony was presented to blunt, in advance, any suggestion by PPG that her own conduct caused, or contributed to, her injuries.

On cross-examination, PPG’s counsel followed up on Hando’s direct testimony about SCCC’s conduct. Hando responded that her supervisors provided employees with warnings about the paint. She testified that, while SCCC provided respirators, she decided that they were insufficient for employees who painted and impractical to use. She did not request a different type of respirator.

During its case, PPG presented testimony from two SCCC employees who described SCCC’s safety precautions toward employees assigned to painting projects. Howard Smothers testified that SCCC had charcoal respirators specifically designed to deflect paint vapors available and that employees were advised to wear the respirators when painting. When he observed Hando painting, she was not wearing a respirator. Hando cross-examined this witness about whether SCCC provided employees with — and trained them in the use of — -respirators. In Suk Githens also testified that SCCC supplied respirators to be used while painting.

As a general rule, “[w]e will not put a district court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which the appellant made no objection.” Pedersen v. Nordahl (1993), 261 Mont. 284, 287, 862 P.2d 411, 413; See also Buhr v. Flathead County (1994), 268 Mont. 223, 254, 886 P.2d 381, 400. Here, the record establishes that Hando first introduced evidence regarding SCCC’s safety procedures. Thus, she clearly participated and acquiesced in its introduction and cannot now assert error regarding its admissibility.

Moreover, with regard to PPG’s cross-examination of Hando about SCCC’s safety procedures, it is axiomatic that a witness may be cross-examined on any subject raised or fact stated on direct examination. Rule 611(b)(1), M.R.Evid.; Tigh v. College Park Realty (1967), 149 Mont. 358, 364, 427 P.2d 57, 61. In addition, the SCCCrelated conduct PPG presented in its case-in-chief was relevant and admissible under Rules 401 and 402, M.R.Evid., because it controverted Hando’s direct testimony regarding SCCC’s safety procedures. Again, Hando opened the door to the subj ect and cannot now complain because PPG walked through it.

Finally, we note that, even absent Hando’s opening the door to evidence of SCCC’s safety-related conduct in presenting her case, her counsel did not object to PPG’s cross-examination of Hando regarding SCCC’s conduct or to its affirmative evidence on that subject. While we need not rely on it in this case, the general rule is that a party’s failure to object to an alleged error during trial precludes raising the issue on appeal. See Buhr, 886 P.2d at 400.

Based on the record before us, we cannot conclude that the District Court abused its discretion in admitting the SCCC-related evidence of which Hando now complains. Therefore, we hold that the District Court did not abuse its discretion in denying Hando’s motion for a new trial.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    ARDELL MARY PECK, Plaintiff and Respondent, v. RIVERVIEW LOUNGE, INC., Defendant and Appellant.
    No. 95-038.
    Submitted on Briefs June 1, 1995.
    Decided July 25, 1995.
    52 St.Rep. 678.
    272 Mont. 152.
    900 P.2d 270.

      For Appellant: Robert J, Emmons, Emmons & Sullivan, Great Falls.
    For Respondent: Dennis Patrick Conner, Attorney at Law, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Riverview Lounge, Inc. (Riverview), appeals the decision of the Eighth Judicial District Court, Cascade County, granting ArdellMary Peck’s motion for a new trial. We affirm.

The sole issue on review is whether the District Court erred in granting Peck’s motion for a new trial.

Peck filed a complaint in the Eighth Judicial District Court, Cascade County, alleging she was injured during a slip and fall accident on Riverview property. The dispute ultimately proceeded to a jury trial. During closing arguments, Riverview’s attorney made several allegedly improper and prejudicial comments to the jury. The jury returned a verdict in favor of Riverview. Peck moved the District Court for a new trial.

Peck filed a document entitled “Plaintiff’s Motion for New Trial and Brief in Support.” This was a single, three-page document. The motion section of the document set forth the statutory grounds for a new trial while the brief section set forth the particular facts upon which a new trial was justified.

Riverview objected to the motion for a new trial, claiming that no improper or prejudicial comments were made during closing arguments and that Peck failed to state the particular grounds in support of her motion for a new trial as required by the Montana Rules of Civil Procedure. The District Court granted Peck’s motion for a new trial. The court found that Riverview’s attorney had argued facts outside the record during closing argument. The court went on to conclude that the argument was prejudicial and warranted a new trial. The court also found that Peck’s Motion for New Trial and Brief in Support satisfied the requirements of a motion for a new trial.

Riverview appeals only on the grounds that Peck’s Motion for New Trial and Brief in Support did not satisfy the technical requirements for a motion for a new trial.

Issue

Did the District Court err in granting Peck’s motion for a new trial?

We review a district court’s granting of a motion for a new trial to determine if there was a manifest abuse of discretion. Stanhope v. Lawrence (1990), 241 Mont. 468, 787 P.2d 1226.

Riverview argues that Peck failed to strictly comply with Rules 7(b)(1) and 59(a), M.R.Civ.P., because her motion for a new trial did not state with particularity what grounds she felt warranted a new trial. Riverview argues that Peck’s motion for a new trial should not be granted due to her failure to comply with these rules.

Peck insists that her motion did comply with the relevant rules of civil procedure. Peck claims that her motion for a new trial and her brief in support of her motion for a new trial were submitted to the District Court as a single document and should therefore be considered together.

Rule 7(b)(1), M.R.Civ.P., states:

An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(Emphasis added.) Rule 59(a), M.R.Civ.P., states, in relevant part:

A new trial may be granted to all or any of the parties and on all or part of the issues for any of the reasons provided by the statutes of the state of Montana.
A motion for a new trial shall state with particularity the grounds therefor, it not being sufficient merely to set forth the statutory grounds, but the motion may be amended, upon reasonable notice, up to and including the time of hearing the motion.

(Emphasis added.)

The general rule is that a motion for a new trial must be denied if the movant does not state with particularity the grounds for the motion. See Halsey v. Uithof (1975), 166 Mont. 319, 532 P.2d 686. However, in this case, Peck did not fail to state with particularity the grounds for her motion; rather, the reasons were included under the heading of “Brief’ rather than under the heading of “Motion.” The brief and the motion were contained within the same three-page document. The document was served upon Riverview within ten days following Notice of Entry of Judgment as mandated by Rule 59(b), M.R.Civ.P. Although contained under the heading “Brief’ rather than under the heading “Motion,” the document did set forth with particularity the grounds upon which the motion was based.

In reference to the Rules of Civil Procedure, we recently stated: The rules should be followed at all times by any practicing attorney. In this case, the Landowners’ counsel failed to abide by the mandates and did not specifically set out grounds on which any hearing should have occurred. Considerable evidence was allowed subsequent to the District Court’s order granting summary judgment. Nonetheless, we have stated that the rules encourage disposition of cases on their merits and therefore we will consider all evidence presented to the District Court. (Citations omitted.)

Adams v. Department of Highways (1988), 230 Mont. 393, 398-99, 753 P.2d 846, 849 (emphasis added).

Riverview does not allege that Peck failed to state the particular grounds for a new trial, but merely that the motion is fatally flawed because the particular grounds were listed under the heading of “Brief’ rather than under the heading of “Motion.” Such a technical flaw is not fatal to Peck’s case.

Rule 8(e)(1), M.R.Civ.P., states, in part, “[n]o technical forms of pleading or motion are required.” Also, in its findings of fact, the District Court correctly pointed out:

The Defendant had notice from December 9, 1994, the date of service of Plaintiff’s Motion for New Trial and Brief in Support, of the precise grounds on which Plaintiff sought relief. This finding is further supported by this Court’s observation of Defendant’s preparedness for the hearing, including by Defendant’s brief, by Defendant’s submission of excerpts of trial testimony and final argument, and by defense counsel’s oral argument at the hearing.

Riverview clearly knew on what grounds Peck sought a new trial and was not prejudiced by the specific grounds being listed in the brief section rather than the motion section of Plaintiff’s Motion for New Trial and Brief in Support.

We conclude that the Plaintiff’s Motion for New Trial and Brief in Support satisfied the notice requirements of Rules 7(b)(1) and 59(a), M.R.Civ.P. The District Court did not manifestly abuse its discretion in granting Peck’s motion for a new trial. Affirmed.

JUSTICES GRAY, NELSON, HUNT and LEAPHART concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WELCH E. BROGAN, Defendant and Appellant.
    No. 94-116.
    Submitted on Briefs April 27, 1995.
    Decided July 25, 1995.
    52 St.Rep. 636.
    272 Mont. 156.
    900 P.2d 284.

      For Appellant: Joseph B. Gary, Attorney at Law, Bozeman; Richard L. Kalar, Attorney at Law, Boulder, Colorado.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Ass’t Attorney General, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Welsh E. Brogan (Brogan) appeals from the judgment and sentence entered by the Sixth Judicial District Court, Park County, following a jury verdict convicting him of the felony offense of possession of unlawfully taken wildlife in violation of § 87-3-118(2), MCA. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in denying Brogan’s motion for a new trial based on juror misconduct?
2. Did the District Court err in refusing to provide farther instruction as requested by the jury?
3. Did the District Court err in failing to make a record of the jury’s question and its response?
4. Did the District Court abuse its discretion in admitting prior acts evidence?
5. Did the District Court err in determining that § 87-3-118(2), MCA, is not unconstitutionally vague?

Brogan is the owner-operator of a wild game farm located in Corwin Springs, Montana. He breeds and raises elk for commercial sale. His operation consists of a series of penned pastures, including a 440-acre upper pasture which is secured by an electric fence.

In January 1991, officials from the Montana Department of Livestock examined Brogan’s elk. They determined that the elk had been exposed to tuberculosis, quarantined his farm and forbade any movement of the elk to or from the farm.

In February 1992, investigators from the Montana Department of Fish, Wildlife and Parks (Department) placed the Brogan game farm under surveillance in response to an anonymous tip. They determined that, at that time, Brogan’s lower pasture contained 154 elk, ten animals more than his most recent official report to the Department. Two Department wardens examined the perimeter fence to the upper pasture and determined that it was completely intact; the upper pasture contained two elk. Based on the wardens’ observations, as well as the discrepancy in total number of elk, the Department decided to conduct an inspection of Brogan’s farm.

The inspection was held on February 18, 1992. Three wild and untagged elk were found in the upper pasture on the day of the inspection. Initially, Brogan refused to admit that there were excess elk on his farm. He later stipulated that he had excess elk and that they were wild. He claimed, however, that he had left the gate to the upper pasture open in an effort to lure the elk out.

Brogan was charged with possession of unlawfully taken wildlife, a violation of § 87-3-118(2), MCA (1991). Prior to trial, the State of Montana (State) advised that it intended to introduce Brogan’s previous convictions on similar charges. The District Court denied Brogan’s motion in limine which sought to exclude that evidence. The case went to trial and resulted in a hung jury and mistrial.

The State refiled its complaint. The second trial resulted in a jury verdict convicting Brogan of violating § 87-3-118(2), MCA (1991). The District Court denied Brogan’s subsequent motion for a new trial.

Brogan’s sentence was deferred for two years provided he complies with the following conditions: (1) serve two years probation; (2) obey all laws; (3) pay $3,000 in restitution; (4) pay a $10,000 fine; (5) pay the costs of his trials in the amount of $4,358.20; and (6) forfeit his hunting, fishing and trapping privileges for three years. Brogan appeals from the judgment and from the court’s denial of his motion for a new trial, which asserted each of the issues raised in this appeal.

STANDARD OF REVIEW

Section 46-16-702(1), MCA, provides that:

(1) Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.

The grant or denial of a motion for a new trial is within the discretion of the trial court. State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076. Absent an abuse of discretion the court’s decision will be affirmed. State v. Hatfield (1995), [269 Mont. 307], 888 P.2d 899, 901.

1. Did the District Court err in denying Brogan’s motion for a new trial based on alleged juror misconduct?

Brogan submitted affidavits from three jurors in support of his motion for a new trial. Juror Jay O’Dell stated that, during the deliberations, one of the members of the jury “asserted that it was Mr. Brogan’s legal duty pursuant to Montana law to go to the upper pasture to check after his helper reported seeing elk tracks in the pasture.” The other two affidavits also state that, after he was informed about the tracks, the subject juror claimed Brogan owed a duty to either check the upper pasture or have it checked, to determine if there were wild elk on his property.

Brogan argues that, based on these affidavits, one of the jurors in this case “assume [d] the role of the court by instructing other members of the jury in regard to the law of the State of Montana.” The State does not dispute the information contained in the affidavits. It claims, however, that the affidavits could not be considered for the purpose of impeaching the verdict because the alleged juror’s comment did not fall within one of the three exceptions to Rule 606(b), M.R.Evid. That rule generally provides that a juror may not testify as to what occurred during the jury’s deliberations except when the information pertains to: (1) whether extraneous prejudicial information was improperly brought to the jury’s attention; (2) whether any outside influence was brought to bear on any juror; or (3) whether any juror was induced to assent to any verdict or finding by resort to the determination of chance. Rule 606(b), M.R.Evid.

The District Court considered the affidavits to the extent necessary to determine whether they could be used to impeach the verdict and concluded that the affidavits established only that the juror had expressed his opinion about the law. The court relied on Harry v. Elderkin (1981), 196 Mont. 1, 637 P.2d 809, for the proposition that, in order to use the affidavits to impeach the verdict under Rule 606(b), M.R.Evid., there must be some outside influence more than mere misapprehension of the law. See Elderkin, 637 P.2d at 813.

In Elderkin, the jury in a personal injury suit found the plaintiff 85% negligent. The plaintiff moved for a new trial, arguing juror misconduct or irregularity. The motion was denied and the plaintiff appealed. Elderkin, 637 P.2d at 811-12.

The plaintiff renewed her argument regarding the jury on appeal, relying on an affidavit from the jury foreman which claimed that the jury did not understand the instructions regarding contributory negligence, comparative negligence and mitigation of damages. We pointed out that cases addressing juror affidavits fall into categories involving either external or internal influence on the jury. Elderkin, 637 P.2d at 813. Where external influence is exerted or external prejudicial information is brought to the jury’s attention, juror affidavits can be the basis for overturning the judgment. Elderkin, 637 P.2d at 813. Examples of external influence include a juror’s telephone call obtaining information with regard to previous litigation by the plaintiff, visiting the scene of an accident or bringing a newspaper article about the trial into the jury room for the jurors to see. Geiger v. Sherrodd (1993), 262 Mont. 505, 510-11, 866 P.2d 1106, 1109 (citations omitted).

Regarding internal influences, however, we have held that juror affidavits “may not be used to impeach the verdict based upon internal influences on the jury, such as a mistake of evidence or misapprehension of the law.” Elderkin, 637 P.2d at 813 (citations omitted). In this case, the affidavits claim that the subject juror made a comment about the law. At most, the subject juror’s comment was his lay opinion about the law which, under Elderkin, constituted a misstatement or misapprehension of the law. Thus, the juror affidavits relate to an internal influence on the jury.

We conclude that the juror affidavits Brogan submitted do not fall within the exceptions stated in Rule 606(b), M.R.Evid., and, therefore, that they could not be used to impeach the jury’s verdict. We hold that the District Court did not abuse its discretion in denying Brogan’s motion for a new trial based on the juror affidavits.

2. Did the District Court err in refusing to provide further instruction as requested by the jury?

During its deliberations, the jury submitted a question to the court regarding a game farmer’s legal obligations. Neither the precise nature of the question nor the court’s response was recorded; thus, neither is part of the record on appeal. Nonetheless, because the parties do not dispute the essential facts and the District Court ruled on the issue in denying Brogan’s motion for a new trial, we will address the issue.

It is undisputed that the jury posed a question to the court regarding the legal obligations of a game farmer in Montana, including whether Brogan had a duty to inspect his pastures. The court declined to give further instructions and told the jury to rely on the instructions already provided. Brogan argues that the District Court’s failure to provide further instruction entitles him to a new trial.

Section 46-16-503(2), MCA, provides:

After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.

Brogan acknowledges that the court has discretion regarding whether to provide additional instructions, but argues that the discretion is not without limits. Relying on State v. Jackson (1930), 88 Mont. 420, 293 P. 309, he asserts that the court abused its discretion in this case because the jury’s question establishes that the jury was having difficulty determining Brogan’s legal duties and responsibilities under the instructions given. The State relies on State v. Hawkins (1974), 165 Mont. 456, 529 P.2d 1377, in arguing that the District Court did not abuse its discretion because the question of whether Brogan owed a duty to inspect was not at issue in the case.

In Hawkins, the jury submitted four questions during the course of its deliberation. After conferring with counsel, the court responded as follows:

The answers to your questions are contained in the instructions given. I cannot further instruct you on these matters and suggest that you refer to the written instructions on the law which you have in the jury room.

Hawkins, 529 P.2d at 1379. We concluded that “[i]f the judge is of the opinion that the instructions already given are adequate, correctly state the law, and fully advise the jury on the procedures it is to follow in its deliberation, his refusal to answer a question already answered in the instruction is not error.” Hawkins, 529 P.2d at 1379 (citations omitted). Hawkins is analogous to the present case. The District Court fully and correctly instructed the jury regarding Brogan’s legal duties insofar as they were at issue; it had no obligation to provide additional instructions on other matters.

Jackson, on the other hand, involved a perjury prosecution in which the court gave some of the defendant’s instructions and refused others. No exception was taken to any of the instructions given. After deliberating for more than three hours, the jury inquired in writing whether a conflict existed between two of the instructions. The court orally withdrew one of the instructions, over defense counsel’s objection. Jackson, 293 P. at 311. On appeal, we concluded that the withdrawal of the instruction was prejudicial error because the withdrawn instruction “bore vitally upon the question of [the] defendant’s ... guilt or innocence.” Jackson, 293 P. at 312.

Jackson is distinguishable from the case presently before us. Here, the court did not withdraw any instructions previously given. Moreover, no conflict existed or was asserted in the instructions given and, unlike in Jackson, the jury was fully and correctly instructed on the issues to be determined by the jury. Indeed, Brogan does not contend otherwise, arguing only that additional instruction may have cleared up some “confusion” for the jury.

We conclude that the District Court did not abuse its discretion in refusing to further instruct the jury. We hold that the court did not abuse its discretion in denying Brogan’s motion for a new trial on this basis.

3. Did the District Court err in failing to make a record of the jury’s question and its response?

With regard to the jury’s question, Brogan also contends that the court’s failure to respond in writing or create a record was prejudicial error requiring a new trial. He asserts that § 46-16-410, MCA, requires that a record be made at the settlement of instructions. While we agree with Brogan’s statement regarding the statute, we disagree that the District Court settled instructions within the purview of the § 46-16-410, MCA, requirement when it advised the jury to rely on the instructions already given.

Section 46-16-410(2), MCA, provides that a record “must be made at the settlement of instructions.” The term “settlement of instructions” refers to a court’s consideration and selection of instructions to be given to the jury, in conjunction with counsel, prior to the jury retiring to deliberate. The record is clear that the court complied with § 46-16-410(2), MCA, in settling instructions at the close of the case. However, events surrounding the jury’s question during its deliberations do not constitute the “settlement of instructions” under § 46-16-410(2), MCA. While it is the better practice to make a record of such events, the requirements of § 46-16-410(2), MCA, do not apply.

Moreover, even assuming error in the court’s failure to make a record, the error would be harmless and not reversible, because Brogan has not established any prejudice affecting his substantial rights as required by § 46-20-701(2), MCA. The material facts surrounding the jury’s question and the court’s response are not disputed and we concluded above that the court did not err in failing to further instruct the jury. Under such circumstances, no prejudice affected Brogan’s substantial rights.

We conclude that the District Court did not err in failing to make a record of the jury’s question and its response. Therefore, we hold that the court did not abuse its discretion in denying Brogan’s motion for a new trial on this basis.

4. Did the District Court abuse its discretion in admitting prior acts evidence?

The State gave timely notice prior to both of Brogan’s trials that it intended to introduce “other acts” evidence under Rule 404(b), M.R.Evid. The evidence pertained to events which took place in February of 1989 and resulted in Brogan’s conviction on two counts of failing to maintain his fence to prevent entry of wild animals and one count of capturing and holding wild elk.

The District Court denied Brogan’s motion in limine to exclude introduction of the evidence, provided the State’s witnesses referred only to Brogan’s earlier acts and not to the convictions, since the earlier case was still pending on appeal. We review a district court’s ruling on evidentiary matters, including Rule 404(b), M.R.Evid., matters, for abuse of discretion. State v. Romero (1993), 261 Mont. 221, 224, 861 P.2d 929, 931 (citations omitted).

The admissibility of other crimes, wrongs, or acts is governed by Rule 404(b), M.R.Evid., which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, we modified the Just rule (see State v. Just (1979), 184 Mont. 262, 602 P.2d 957), identifying four factors to be considered in admitting other acts evidence. The modified Just rule requires that:

(1) The other crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) [There is a determination that the] probative value [of the evidence] is [not] substantially outweighed by the danger of ... prejudice [to the defendant] ....

Matt, 814 P.2d at 56.

Brogan’s motion in limine focused on the first, second and, briefly, the third modified Just requirements. Accordingly, we will limit our review to those issues raised in the District Court. See Romero, 861 P.2d at 931.

With regard to similarity, Brogan is charged in this case with possessing unlawfully taken wildlife in violation of § 87-3-118(2), MCA. The acts upon which the charge is based are that he allegedly captured wild elk and held them on his game farm. The earlier case involved charges that Brogan unlawfully captured wild elk and that he failed to maintain his game farm fences to prevent entry of wild game in violation of Department regulations. See State v. Brogan (1993), 261 Mont. 79, 862 P.2d 19. Brogan argues that the offenses are not similar because they were charged under different statutes and because the wild elk entered his fenced pastimes under different circumstances. The differing statutes at issue have little relevance, because we are concerned with whether his prior acts are sufficiently similar to those upon which the charged violation of § 87-3-118(2), MCA, are based. Moreover, although he identifies the earlier acts as efforts to drive wild deer out and capture escaped game farm elk, our focus, again, is on the similarity of the acts rather than the reasons Brogan asserts for committing the acts.

A prior act need not be identical to the offense charged to be admissible under the first modified Just factor; “sufficient similarity” between the two is all that is required. Romero, 861 P.2d at 932. In Romero, for example, both the prior act and the crime charged involved assaults of young girls, while they slept, after the defendant had been drinking; further, on both occasions, the defendant left after the girls awakened and told him to stop. Notwithstanding the 8-year age difference between the two girls, we concluded that the prior act was sufficiently similar to the offense charged to satisfy the similarity requirement. Romero, 861 P.2d at 932.

Here, the offense charged is the purposeful or knowing possession of unlawfully taken wild elk. In both cases, Brogan enclosed wild elk behind electric fences and closed gates in his pastures. We conclude that Brogan’s “other acts” are sufficiently similar to satisfy the first modified Just requirement.

Regarding the remoteness factor, Brogan points out that the prior acts occurred three years before the acts underlying the offense charged in this case. Relying on State v. Hansen (1980), 187 Mont. 91, 608 P.2d 1083, he argues that a prior act occurring more than two and one-half years before the acts at issue in the pending charge is too remote as a matter of law to satisfy the second modified Just requirement. Brogan misreads Hansen.

In Hansen, we stated that a three-year interval between a prior act and the offense charged was “close to the limit of being too remote;” we noted, however, that we had held other acts occurring more than three years prior to the crime admissible when the acts engaged in by the defendant constitute a continuing course of conduct. Hansen, 608 P.2d 1087; citing Just, 602 P.2d at 961. We concluded that the two and one-half year lapse between the prior acts and the offense charged, in combination with the lack of sufficient similarity between the two, rendered the prior acts too remote. Hansen, 608 P.2d at 1087. Hansen does not support Brogan’s argument that a three-year lapse of time renders a prior act too remote as a matter of law under the modified Just rule.

We have followed the Hansen approach of considering similarity as a factor in our evaluation of remoteness in subsequent cases. In State v. McKnight (1991), 250 Mont. 457, 463, 820 P.2d 1279, 1283, for example, we stated that a three-year period between incidents was not too remote because the incidents in question were sufficiently similar. Specifically, we observed that:

In addition to the three-year time span in the present case, we have considered the similarity in conduct when comparing the assaults ... which demonstrates a pattern of similar conduct which may be properly considered on the issue of remoteness.

McKnight, 820 P.2d at 1283.

Moreover, we consistently have declined to set arbitrary time limits defining the remoteness factor. In State v. Tecca (1986), 220 Mont. 168, 172-73, 714 P.2d 136, 139, we determined that an isolated incident nine years before the charged conduct would be too remote on a stand-alone basis, but that the remoteness was alleviated by the continuing course of conduct. In State v. Ray (1994), 267 Mont. 128, 133, 882 P.2d 1013, 1016, we again declined to establish an arbitrary time limit for admitting prior acts evidence, holding only that acts occurring 16 to 18 years prior to the charged conduct were too remote, absent evidence of a continuing course of conduct, to satisfy the second modified Just requirement. Ray, 882 P.2d at 1016.

As discussed above, there is little appreciable difference between the other acts and the acts forming the basis for the offense charged in this case. Because the acts are substantially similar and occurred within three years of each other, the prior acts were not too remote to satisfy the second modified Just requirement.

Finally, Brogan makes a passing argument that the other acts evidence was not admitted for one of the allowable purposes specified in the third modified Just requirement. The State’s purpose in introducing the evidence was to establish absence of mistake or accident regarding Brogan’s possession of unlawfully taken wildlife. Absence of mistake or accident is one of the permissible purposes for admitting other acts evidence under the third requirement of the modified Just rule. See Matt, 814 P.2d at 56. Under the circumstances of this case, the prior acts were relevant to the stated purpose for admitting the evidence.

We conclude that the District Court did not abuse its discretion in denying Brogan’s motion in limine and in admitting prior acts evidence. We hold, therefore, that the court did not abuse its discretion in denying Brogan’s motion for a new trial on this basis.

5. Did the District Court err in determining that § 87-3-118(2), MCA, is not unconstitutionally vague?

A defendant may challenge a statute’s constitutionality by arguing that it is so vague that it is void on its face or that it is vague as applied to him. State v. Crisp (1991), 249 Mont. 199, 202, 814 P.2d 981, 983 (citation omitted). “A statute is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” Crisp, 814 P.2d at 983 (citations omitted). “No person should be required to speculate as to whether his contemplated course of action may be subject to criminal penalties.” Crisp, 814 P.2d at 983 (citation omitted).

Section 87-3-118(2), MCA, provides:

A person commits the offense of possession of unlawfully taken wildlife having a value of more than $1,000 if he purposely or knowingly has actual or constructive possession of or transports or causes to be transported unlawfully taken wildlife having a value of more than $1,000. The value of the unlawfully taken wildlife must be determined from the schedule of restitution values set out in 87-1-111.

Brogan argues, in essence, that the statute is void for vagueness because it does not sufficiently define constructive possession and, therefore, does not give a reasonable person notice of what conduct is proscribed; he also asserts vagueness because no specific intent to possess unlawfully taken wildlife is required. His arguments are without merit.

We previously have rejected an argument similar to Brogan’s regarding vagueness premised on the lack of a requirement of specific intent to commit an offense. In Crisp, the definition of the offense at issue required that the defendant “knowingly” engage in conduct creating a risk of death or serious bodily injury. We observed that “knowingly” is separately defined by statute and specifically included as the mental state element of the offense. Crisp, 814 P.2d at 983. We stated that “[b]y incorporating the intent element of knowingly, a mental state that is adequately defined by statute, the legislature has given fair warning of the mental state required in order to be convicted of felony criminal endangerment.” Crisp, 814 P.2d at 983. On that basis, we concluded that the “use of the mental state of knowingly does not render a statute unconstitutionally vague.” Crisp, 814 P.2d at 983; citing City of Billings v. Batten (1985), 218 Mont. 64, 70, 705 P.2d 1120, 1124.

Here, the offense with which Brogan was charged requires that he “purposely or knowingly has actual or constructive possession of... unlawfully taken wildlife having a value of more than $1,000.” Section 87-3-118(2), MCA. “Purposely” and “knowingly” are defined in subsections (58) and (33), respectively, of § 45-2-101, MCA. By incorporating these statutorily defined terms into the definition of the offense, the legislature has given fair warning of the mental state which is an element of the offense. We conclude, therefore, that § 87-3-118(2), MCA, is not unconstitutionally vague by virtue of the “purposely or knowingly” mental state element of the offense.

Crisp also disposes of Brogan’s vagueness claim based on the failure of the statute under which he was charged to define the term “constructive possession.” In Crisp, the defendant argued that the phrase “substantial risk of death,” an element of the charged offense, failed to define the type of conduct proscribed and, therefore, did not give him fair warning that he faced criminal sanctions. We observed that, while the phrase was not statutorily defined, it was “not so arcane or obscure ... as to give insufficient notice of the conduct prohibited ....” Crisp, 814 P.2d at 983-84. Relying on dictionary definitions, we concluded that “[t]he fact that the phrase is not defined in the code does not make the statute vague on its face.” Crisp, 814 P.2d at 984.

Here, while the term “constructive possession” in § 87-3-118(2), MCA, is not defined by statute, it has been defined by this Court. “[C]onstructive possession means that the goods are not in actual, physical possession but that the person charged with possession has dominion and control over the goods.” State v. Meader (1979), 184 Mont. 32, 42, 601 P.2d 386, 392. Thus, we conclude that the absence of a statutory definition for the phrase “constructive possession” does not render § 87-3-118(2), MCA, unconstitutionally vague.

Brogan has not met his burden of establishing that § 87-3-118(2), MCA, is unconstitutionally vague in failing to give fair warning that his conduct was proscribed. We conclude, therefore, that the District Court did not err in determining that the statute is not unconstitutionally vague. We hold that the court did not abuse its discretion in denying Brogan’s motion for a new trial on that basis.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE NELSON

text:
    IN RE THE SUPPORT OBLIGATION OF: STUART ANTHONY DAY, Absent parent Plaintiff and Respondent, v. STATE OF MONTANA, DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, CHILD SUPPORT ENFORCEMENT DIVISION, Defendant and Appellant.
    No. 95-157.
    Submitted on Briefs June 20, 1995.
    Decided July 27, 1995.
    52 St.Rep. 680.
    272 Mont. 170.
    900 P.2d 296.

      For Appellant: Ann Hefenieder, Department of SRS, Child Support Enforcement Division, Billings.
    For Respondent: Loren J. O’Toole, II, O’Toole & O’Toole, Plenty-wood.
   JUSTICE NELSON

delivered the Opinion of the Court.

The plaintiff, Stuart Anthony Day (Day), brought a petition in the District Court seeking review of a decision of the Child Support Enforcement Division (CSED) that his child support obligation was past due and permitting CSED to begin income withholding to satisfy the arrearage. The District Court for the Seventeenth Judicial District, Phillips County, reversed the agency decision holding that CSED’s action on child support arrearage was barred under the statute of limitations of the Fort Peck Tribal Code. CSED’s motion for reconsideration of that order was denied. CSED appeals. We reverse and remand.

The issues on appeal are:

1. Did the District Court err by holding that the Fort Peck Tribal Code’s statute of limitations applies in this case rather than Montana’s longer statute of limitations?

2. Did the District Court err by holding that CSED cannot enforce the Tribal Court judgment without initiating an action in District Court?

Stuart Anthony Day and Vina Buckles (Buckles) were divorced in Nevada on March 15, 1982. They were the parents of four minor children, for whom Day was ordered to pay support in the amount of $200.00 per child per month, beginning April 1, 1982.

Sometime thereafter, the parties moved to Montana and agreed to modify Day’s support obligation. On March 18,1983, the Tribal Court of the Fort Peck Indian Reservation, entered an order incorporating the agreement and modifying Day’s child support obligation.

In June 1983, Buckles applied for and received public assistance through Aid to Families with Dependent Children (AFDC). Under the applicable state and federal laws, she assigned her rights to child support payments to CSED.

On August 11, 1983, and again on July 1, 1986, the Tribal Court issued orders requiring the payment of past-due child support. All four children have now reached 18 years of age and the last month any benefits were paid by AFDC was February 1990.

On July 15, 1993, CSED sent Day a notice of intent to withhold portions of his wages for payment of past-due child support. An amended notice of intent to withhold was sent to Day by CSED on September 7, 1993. Day contested CSED’s decision to withhold for past-due support and a telephonic hearing before the Administrative Law Judge (ALJ) was held on September 8, 1993.

At the hearing, Day presented a written memorandum that the Fort Peck Tribal Code’s five-year statute of limitations barred enforcement of the judgments obtained in 1983 and 1986. Section 306 of Title VI of the Fort Peck Tribal Code provides:

Life of judgment. No judgment of the court for money shall be enforceable after five (5) years from the date of entry, unless application to renew the judgment shall have been filed before the date of expiration pursuant to Section 307.

Contrary to Day’s contention that the judgments had expired, CSED argued that Montana’s ten-year statute of limitations concerning collection of past-due child support, as provided by § 27-2-201(3), MCA (1993), was applicable in this case. The ALJ agreed and in his order of December 6, 1993, ruled in favor of CSED. Day was found to owe a total of $24,226.00 in past-due child support.

Day appealed to the District Court arguing that his substantial rights had been prejudiced. The District Court reversed the ALJ’s order and stayed CSED from enforcing any decision to withhold income for delinquent child support based on the Tribal Court judgment. The District Court held that CSED’s action on child support arrearage stemming from the 1983 and 1986 Tribal Court judgments was barred under the five-year statute of limitations of the Fort Peck Tribal Code. Moreover, the District Court ruled that, in order for CSED to collect any non-barred child support, CSED would be required to proceed judicially, instead of proceeding with its administrative income-withholding procedure. CSED’s motion to the District Court for reconsideration of its order was denied. CSED appeals the District Court’s order reversing the agency decision as well as the court’s order denying CSED’s Motion for Reconsideration.

Issue 1

Did the District Court err by holding that the Fort Peck Tribal Code’s statute of limitations applies in this case rather than Montana’s longer statute of limitations?

The ALJ determined that Montana’s 10-year statute of limitations applies in the case before us on appeal. The ALJ cites the United States Supreme Court’s decision in Roche v. McDonald (1928), 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365, for the proposition that a state with a longer statute of limitations can enforce the judgment of a sister state which judgment would be barred by the sister state’s shorter limitation period. The ALJ concluded that the Fort Peck Tribe should be afforded the same status as a sister state and entitled to full faith and credit for its judgment.

The District Court reversed the ALJ concluding that under Wippert v. Blackfeet Tribe (1982), 201 Mont. 299, 654 P.2d 512, full faith and credit does not apply to Indian tribes. More correctly stated, full faith and credit does not apply to the orders, judgments and decrees of Indian tribal courts. Rather, Montana treats tribal court judgments with the same deference shown decisions of foreign nations as a matter of comity. Wippert, 654 P.2d at 515.

The District Court noted that foreign judgments must meet the requirements of the Uniform Foreign Money-Judgments Recognition Act (the Recognition Act) found at Title 25, Chapter 9, part 6, MCA. The Recognition Act, effective October 1, 1993, provides for the enforcement of a judgment of a foreign state granting or denying recovery of a sum of money. Specifically, the District Court noted that under the Recognition Act, a foreign judgment must be enforceable where rendered. Section 25-9-603, MCA. The court held that since the action in the case before us on appeal is time-barred in the Fort Peck Tribal Court, it is no longer enforceable and fails to meet the requirement of § 25-9-603, MCA.

On appeal, CSED contends that given the enactment of the federal Full Faith and Credit for Child Support Orders Act (the Child Support Act), which was effective prior to the District Court reaching its decision, the court on judicial review should have applied the provisions of the Child Support Act to uphold the ALJ’s order. Day contends that since the Child Support Act was not in place at the time of this action it does not apply.

Our review of a district court’s conclusions of law is plenary. We simply determine whether the court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Although, generally, the District Court’s statements regarding the Recognition Act were correct, the court’s application of that Act in this case was erroneous. As regards child support orders issued in Indian tribal courts, Indian tribes are deemed to be “States,” 28 U.S.C. § 1738B(b), and are, therefore, excepted out of the definition of “foreign states” under the provisions of the Recognition Act. Section 25-9-602(2), MCA. Additionally, judgments for support in matrimonial or family matters are not considered “foreign judgments” under the Recognition Act. Section 25-9-602(1), MCA. Hence, the Recognition Act is not applicable, and the District Court was incorrect in applying its provisions in the instant case.

That brings us to the Child Support Act, the provisions of which the District Court declined to apply. In 1994, Congress determined that a lack of uniformity in the laws regarding child support orders encouraged noncustodial parents to relocate to other states to avoid the jurisdiction of the courts of the home state. This contributed to relatively low levels of child support payments in interstate cases and to inequities in child support payment levels that are based solely on the noncustodial parent’s choice of residence. To counteract this problem, Congress enacted Public Law 103-383, known as the Full Faith and Credit for Child Support Orders Act (28 U.S.C. § 1738B (1994)).

As mentioned above, the Child Support Act defines a “State” to include “Indian country.” 28 U.S.C. § 1738B(b). Additionally, the Act provides:

PERIOD OF LIMITATION. — In an action to enforce a child support order, a court shall apply the statute of limitation of the forum State or the State of the court that issued the order, whichever statute provides the longer period of limitation. [Emphasis added.]

28 U.S.C. § 1738B(g)(3) (1994).

We have previously held that an appellate court must apply the law in effect at the time it renders its decision. In re Marriage of Elser (1995), [271 Mont. 265], 895 P.2d 619, 52 St.Rep. 434, (citing Haines Pipeline v. MPC (1991), 251 Mont. 422, 433, 830 P.2d 1230, 1238). An appellate court must give effect to the latest enactment of the legislature and must decide each case in accordance with existing laws. See, United States v. Schooner (1801), 5 U.S. (1 Cranch) 103, 2 L.Ed. 49. Moreover, this rule applies regardless of whether the change is constitutional, judicial or statutory. Thorpe v. Housing Auth. of the City of Durham (1969), 393 U.S. 268, 282, 89 S.Ct. 518, 526, 21 L.Ed.2d 474, 484. As we pointed out in Haines, however, there is an exception to the general rule when application of a new law would result in manifest injustice, which we have defined as occurring when application of the new law impairs a vested right. Haines, 830 P.2d at 1238. We have also held that a judgment is not vested while it is subject to review or while an appeal is pending. Haines, 830 P.2d at 1238; Brockie v. Omo Construction, Inc. (1994), 268 Mont. 519, 526, 887 P.2d 167, 171.

Since the Child Support Act was effective on October 20,1994, prior to the District Court rendering its decision, the court should have applied the provisions of this Act and should have enforced the longer period of limitation provided by Montana statute.

We next must determine which Montana 10-year statute of limitations is the correct one to apply in this case. The AL J concluded that § 27-2-201(3), MCA (1993), applied. However, that statute provides:

[t]he period prescribed for the commencement of an action to collect past-due child support that has accrued after October 1, 1993, under an order entered by a court of record or administrative authority is within 10 years of the termination of the support obligation.

Section 27-2-201(3), MCA (1993). (Emphasis added.) Since the child support arrearages in the instant case accrued prior to October 1, 1993, this statute cannot apply to the case before us on appeal. Rather, the correct statute to apply is § 27-2-201(1), MCA (1993), which provides:

the period prescribed for the commencement of an action upon a judgment or decree of any court of record of the United States or of any state within the United States is within 10 years.

See In re Marriage of Brown (1994), 263 Mont. 184, 867 P.2d 381.

Accordingly, we hold that, by reason of the applicability of the Child Support Act to this case, Montana’s 10-year statute of limitations as provided by § 27-2-201(1), MCA (1993), applies.

In closing our discussion on this issue, however, and, in view of our holding that the District Court erred in applying the Recognition Act in this case, we believe it is appropriate to also point out that we are not deciding here whether the Recognition Act (enacted as Ch. 441, L. 1993) is applicable to Indian Tribal Court orders, judgments and decrees that do not involve child support nor do we express any opinion with regard to the interplay between that Act, the Uniform Enforcement of Foreign Judgments Act (the Enforcement Act; found at Title 25, Chapter 9, part 5, MCA), and our decision in Wippert as regards such orders, judgments and decrees which do not involve child support.

Issue 2

Did the District Court err by holding that CSED cannot enforce the Tribal Court judgment without initiating an action in District Court?

Under our decision in Wippert, the orders, judgments and decrees of an Indian Tribal Court are not entitled to full faith and credit. Rather, we determined that such orders, judgments and decrees are to be treated with the same deference shown the decisions of foreign nations as a matter of comity. Wippert, 654 P.2d at 515. As a result, under the rule in Wippert, absent some specific statute granting full faith and credit or a statute specifying some other procedure for enforcement, in order to enforce an order, judgment or decree of an Indian Tribal Court, the holder must bring an action or special proceeding in District Court. Wippert, 654 P.2d at 515. See also, 44 Op.Att’y Gen. 15 (1991).

Where, however, the order, judgment or decree of the Indian Tribal Court is entitled to full faith and credit, then the holder may, but is not required to “sue out” the order, judgment or decree in an action or special proceeding in District Court. In the alternative, the holder of an Indian Tribal Court order, judgment or decree entitled to full faith and credit may also use the simplified registration procedures set forth in the Enforcement Act. Sections 25-9-502 and 25-9-503, MCA.

The Enforcement Act provides a procedure for the filing of a foreign judgment with the clerk of the district court and permits the clerk to treat the foreign judgment in the same manner as a judgment of the district court. Section 25-9-503, MCA. For purposes of the Enforcement Act, a “foreign judgment” is a “judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Section 25-9-502, MCA. (Emphasis added.)

Since child support orders of Indian tribal courts are entitled to full faith and credit under the Child Support Act, the simplified registration procedures of the Enforcement Act are available in addition to the procedure of enforcing such an order by way of an action or special proceeding in district court. Sections 25-9-502, 25-9-503, and 25-9-507, MCA. Such a tribal court order or judgment may be either filed in the office of the clerk of any district court in Montana, in accordance with the procedures set forth under the Enforcement Act or sued out in District Court by way of an action or special proceeding to enforce the judgment.

Additionally, with respect to child support orders involving public assistance under Title IV-D of the Social Security Act, a third alternative is available for enforcement. Under Montana’s Child Support Enforcement Act, found at Title 40, Chapter 5, part 4, MCA, withholding of income to pay child support is allowed without the need for court action. Section 40-5-402(4), MCA. To protect the child support debtor’s due process rights, the income withholding process provides for notice of an intent to withhold income, § 40-5-413, MCA, and an opportunity for pre-seizure hearings, § 40-5-414, MCA.

The Child Support Enforcement Act applies to all support obligations being enforced or collected by the Department of Social and Rehabilitation Services, as in the instant case. Section 40-5-402(2), MCA. Under this Act, a “support order” includes an order of a court of appropriate jurisdiction of another state. Section 40-5-403(7), MCA. Since Indian tribes are deemed “states” for purposes of child support orders under the federal Child Support Act, Montana’s Child Support Enforcement Act may be employed in the instant case as well.

Consequently, in instances where the Child Support Enforcement Act applies, the creditor may either commence administrative enforcement proceedings, including income withholding, register the judgment with the District Court under the Enforcement Act or file an action or a special proceeding in District Court to enforce the judgment.

Accordingly, we hold that the District Court erred in its ruling that CSED cannot enforce the Tribal Court judgment without initiating an action in District Court.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and LEAPHART concur.


text:
    ESTATE OF ROBERT EIDE, Plaintiff and Respondent, v. JASON TABBERT, Defendant and Appellant.
    No. 94-617.
    Submitted on Briefs April 20, 1995.
    Decided July 27, 1995.
    52 St.Rep. 689.
    272 Mont. 180.
    900 P.2d 292.

      For Appellant: Palmer Hoovestal, Attorney at Law, Helena.
    For Respondent: James P. Reynolds; Reynolds, Motl & Sherwood Helena.
   JUSTICE 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 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 712.

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 j aw injury remains a fact issue to be resolved by the civil jury. On 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 (1994), 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 (1991), 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 (1984), 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; (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, 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 (1994), 265 Mont. 282, 288, 876 P.2d 632, 636. However, “[t]he 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 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 bar [red] 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, 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 person charged “cause [d] serious bodily injury to another.” Section 45-5-202(1), 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 § 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 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(5)(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 § 28(5)(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.

JUSTICES TRIEWEILER, WEBER, NELSON and LEAPHART concur.


author: JUSTICE HUNT

text:
    HKM ASSOCIATES, Plaintiff and Appellant, v. NORTHWEST PIPE FITTINGS, INC., a Montana corporation, and J-M MANUFACTURING COMPANY, INC., a Delaware corporation, Defendants and Respondents.
    No. 94-546.
    Submitted on Briefs May 18, 1995.
    Decided August 1, 1995.
    52 St.Rep. 692.
    272 Mont. 187.
    900 P.2d 302.

      For Appellant: David A. Veeder, Veeder Law Firm, Billings.
    For Respondents: Damon L. Gannett, Gannett, Anderson & Liechty, Billings (for Northwest Pipe Fittings); Paul D. Miler and Patricia D. Peterman, Holland & Hart, Billings (for J-M Manufacturing Company).
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant HKM Associates appeals from two orders of the Thirteenth Judicial District Court, Yellowstone County, granting respondents Northwest Pipe Fittings, Inc.’s, and J-M Manufacturing Company, Inc.’s, motions to dismiss appellant’s claim of indemnity and granting respondents’ motions for summary judgment as to the remainder of appellant’s claims.

We affirm.

Appellant raised the following issues on appeal:

1. Do genuine issues of material fact exist as to whether HKM relied upon J-M’s and Northwest’s fraudulent misrepresentations, and whether HKM was damaged as a result?

2. Do genuine issues of material fact exist as to whether HKM could have discovered all of the facts constituting the fraud prior to April 26, 1989?

3. Do genuine issues of material fact exist as to whether HKM’s fraud claims are barred by the doctrine of collateral estoppel?

4. Do genuine issues of material fact exist as to whether J-M and Northwest fraudulently concealed from HKM the material facts of HKM’s fraud claims?

5. Do genuine issues of material fact exist as to whether HKM is barred by the doctrine of collateral estoppel from bringing its claim for indemnification?

We restate the issues as follow:

1. Did the District Court err in granting respondents’ motions to dismiss appellant’s claim for indemnity?

2. Did the District Court err in granting respondents’ motions for summary judgment as to appellant’s remaining claim of fraudulent misrepresentation?

In 1985, the Lockwood Water Users Association (LWUA) hired appellant HKM to design the plans and specifications for a pipeline project. HKM acted as the project engineer and Jim’s Excavating Service, Inc. (JES), acted as the general contractor.

A section of the pipeline was to be laid through an “S” curve which required the pipe to be either deflected at the appropriate joint or to be laid with special fittings. HKM designed the project to use deflect-able, ductile iron pipe, rather than special fittings. Prior to releasing the original bid form, HKM amended the bid to solicit alternative bids for using PVC pipe.

Respondent J-M Manufacturing informed HKM that 24-inch PVC pipe (Big Blue) could be deflected up to 3 degrees at the joint. Based on this information, HKM determined that 24-inch PVC pipe could be laid and deflected through the “S” curve without special fittings.

The amended bid proposal did not contain any specifications that fittings were to be used on the “S” curve. JES purchased PVC pipe manufactured by J-M from respondent Northwest. Northwest certified and subsequently verified to HKM that 24-inch PVC pipe manufactured by J-M could be deflected up to three degrees at the joint. HKM ultimately approved of the bid submitted by JES.

Following the start of construction in September 1985, J-M informed JES that the 24-inch PVC pipe could not be deflected and that special fittings would have to be installed to accommodate the “S” curve. Construction at the “S” curve was halted until the necessary fittings could be delivered. Work on the “S” curve resumed after the fittings arrived on July 14, 1986. During a September 10, 1986, inspection, HKM discovered that the cement linings of the fittings were cracked and had to be removed. New fittings arrived at the project on October 5, 1986.

On May 8, 1987, JES filed a complaint against HKM and LWUA claiming, inter alia, delay and extra work damages caused as a result of HKM’s negligent design and supervision of the pipeline project. In Jim’s Excavating Service, Inc., v. HKM Associates (1994), 265 Mont. 494, 878 P.2d 248, we affirmed the jury verdict of $381,000 in favor of JES.

On April 26,1991, HKM filed a complaint against J-M and Northwest, claiming negligence and negligent misrepresentation. Northwest brought a motion to dismiss, and J-M filed a motion for summary judgment. On August 27, 1992, HKM filed its first amended complaint, adding a claim for fraudulent misrepresentation. J-M and Northwest filed motions to dismiss all claims pursuant to Rule 12(b)(6), M.R.Civ.P. The District Court treated these motions as motions for summary judgment and ruled that HKM’s claims for negligence and negligent misrepresentation were barred by the statute of limitations. At the same time, the District Court held that HKM’s claim for fraudulent misrepresentation was not barred by the statute of limitations or the doctrine of res judicata.

On September 13,1993, HKM filed its second amended complaint, adding a claim for indemnification. J-M and Northwest filed motions to dismiss HKM’s indemnity claim, which the District Court granted on December 10, 1993.

In June 1994, J-M and Northwest filed renewed motions for summary judgment on the remaining fraud claims. On August 26, 1994, the District Court granted those motions, concluding that HKM’s fraud claims were barred by the statute of limitations and res judicata. The court also concluded that the fraud claims lacked the elements of reliance and damages. HKM appeals from the District Court’s orders of December 10,1993, and August 26,1994.

ISSUE 1

Did the District Court err in granting respondents’ motions to dismiss appellant’s claim for indemnity?

“In reviewing a motion to dismiss, we construe the complaint in the light most favorable to the plaintiff and take the allegations of the complaint as true.” Goodman Realty, Inc. v. Monson (1994), 267 Mont. 228, 231, 883 P.2d 121, 123. Our scope of review is broad and we examine the entire case and make a determination based on that examination. Goodman, 883 P.2d at 123. We will affirm the dismissal only if we find that the plaintiff is not entitled to relief under any set of facts which could be proved in support of the claim. Goodman, 883 P.2d at 123.

HKM added a count to its second amended complaint seeking indemnification from J-M for the $381,000 judgment against HKM rendered in Jim’s Excavating. J-M and Northwest Pipe filed motions to dismiss HKM’s claim for indemnification.

In Jim’s Excavating, the jury returned a special verdict finding,that HKM was negligent in preparing the plans and specifications of the LWUA project, and that HKM’s negligence was a cause in fact of JES’s damages. The District Court concluded that “because negligence was the subject of the previous action, HKM could have and should have asserted indemnity against J-M and Northwest Pipe at that time. The issue of negligence cannot be re-litigated and [HKM]’s claim for indemnification is barred by application of the doctrine of collateral estoppel.”

The right to indemnification is an equitable principle based on the theory that a party compelled to pay for damages caused by another should be able to seek recovery from that party. Poulsen v. Treasure State Industries, Inc. (1981), 192 Mont. 69, 626 P.2d 822. Collateral estoppel bars an action, including an action for indemnification, when: (1) the issue presented in a later action has been decided in a prior adjudication; (2) a final judgment in the action was issued; and (3) the party against whom collateral estoppel is asserted was a party to the previous litigation. Berlin v. Boedecker (1994), 268 Mont. 444, 453, 887 P.2d 1180, 1185; Farmers Plant Aid, Inc. v. Huggans (1994), 266 Mont. 249, 254, 879 P.2d 1173, 1176. Of the three criteria needed to establish collateral estoppel, identity of issues is the most important and requires that the precise issue has been litigated in the prior actions. Berlin, 887 P.2d at 1185. It is not necessary, however, that there be an identical cause of action, but rather, there must be an identical issue. Boyd v. First Interstate Bank (1992), 253 Mont. 214, 218, 833 P.2d 149, 151.

The record shows that the issue of HKM’s negligence was raised in Jim’s Excavating. The jury determined that HKM was negligent and a final judgment was entered. Finally, HKM was a party to Jim’s Excavating. The criteria for collateral estoppel has been met, therefore, HKM is prevented from re-litigating the issue of negligence. Because re-litigating the issue of negligence is necessary to litigating HKM’s claim of indemnification, the District Court properly granted J-M’s and Northwest Pipe’s motions to dismiss HKM’s indemnification claim. See Auto Club Ins. Co. v. Toyota Motor Sales, U.S.A., Inc. (1975), 166 Mont. 221, 225, 531 P.2d 1337, 1339.

We hold that the District Court did not err in granting respondents’ motions to dismiss appellant’s claim for indemnity.

ISSUE 2

Did the District Court err in granting respondents’ motions for summary judgment as to appellant’s remaining claim of fraudulent misrepresentation?

Our standard of review on a grant of summary judgment is identical to that of the district court. Cooper v. Sisters of Charity (1994), 265 Mont. 205, 207, 875 P.2d 352, 353. Summary judgment is only 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.; Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 442, 872 P.2d 330, 332. The burden of proof rests with the party seeking summary judgment to provide the court with evidence which excludes any real doubt as to the existence of a genuine issue of material fact. Berens v. Wilson (1990), 246 Mont. 269, 271, 806 P.2d 14, 16. Only after the moving party has met this burden of proof does the burden shift to the nonmoving party to show that a genuine issue of material fact exists. Morton v. N.W.M., Inc. (1994), 263 Mont. 245, 249, 868 P.2d 576, 579. ‘When raising the allegations that disputed issues of fact exist, the nonmoving party has an affirmative duty to respond by affidavits or other sworn testimony containing material facts that raise genuine issues; conclusory or speculative statements will not suffice.” Koepplin v. Zortman Mining (1994), 267 Mont. 53, 59, 881 P.2d 1306, 1309.

The District Court granted respondents’ motions for summary judgment concluding that appellant’s remaining claim of negligent misrepresentation was barred by the statute of limitations and the doctrine of res judicata.

HKM’s fraudulent misrepresentation claims are based on two installation manuals issued by J-M for its 24-inch PVC pipe. The first manual of May 1986 provides for no joint deflection. The second manual of February 1987 allows for 1.5 degree joint deflection. HKM asserts that J-M’s internal correspondence reveals that it did not actually change its recommendation to no deflection, but rather, J-M always recommended joint deflection to some degree. HKM maintains that it did not learn that J-M’s purported “flip-flop” as to the deflectability of its 24-inch PVC pipe was false until the Jim’s Exea voting trial in August 1992. HKM asserts that its belief that fraud was committed was confirmed in May 1994 when HKM received a July 1986 internal correspondence which indicated that J-M’s true recommendation provided for some degree of deflection at the joint. The record does not support HKM’s position.

An action for fraudulent misrepresentation must be brought within two years of discovery of the facts constituting the fraud by the aggrieved party. Section 27-2-203, MCA. HKM filed its complaint on April 26, 1991. However, as early as April 18, 1986, HKM learned of J-M’s inconsistent position as to the deflectability of its 24-inch PVC pipe when a representative of J-M arrived at the worksite and informed HKM that J-M was requiring zero deflection at the joint and that HKM would need fittings for the pipe in order to negotiate the curve. At HKM’s request, J-M confirmed its revised “no deflection” position in June 1986. In November 1986, HKM received J-M’s installation guide which recommended no joint deflection for 24-inch PVC pipe. When a defendant’s fraudulent concealment prevents a plaintiff from discovering a cause of action, the statute of limitations is generally tolled. United Methodist Church v. D.A. Davidson (1987), 228 Mont. 288, 296, 741 P.2d 794, 798; see § 27-2-102(3)(b), MCA. “In a non-malpractice negligence action, there must be an affirmative act committed by the defendant, and the affirmative act must be calculated to obscure the existence of the cause of action.” United Methodist Church, 741 P.2d at 798. There is nothing in the record to suggest that either J-M or Northwest engaged in affirmative acts calculated to obscure from HKM the existence of a cause of action sufficient to toll the two-year statute of limitations.

We conclude that HKM’s claim for fraudulent misrepresentation is barred by the two-year statute of limitations. As a result, there exist no genuine issues of material fact. We hold that the District Court did not err in granting respondents’ motions for summary judgment as to appellant’s remaining claim of fraudulent misrepresentation.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and TRIEWEILER concur.