                                                                                         October 13 2009


                                      DA 08-0600

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2009 MT 328N




KUCK TRUCKING, INC., a Montana corporation,

          Cross-Claimant and Appellant,

v.

BRENNTAG WEST, INC., a successor in
interest to DYCE CHEMICAL, INC., a
Montana Corporation, et al.,

          Cross-Defendants and Appellees.



APPEAL FROM:       District Court of the Thirteenth Judicial District,
                   In and For the County of Yellowstone, Cause No. DV 2007-0443
                   Honorable Gregory R. Todd, Presiding Judge
                   Cause No. DV -2005-048
                   Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Kenneth D. Tolliver, Matthew B. Gallinger, Tolliver Law Firm, P.C.,
                   Billings, Montana

                   Mark L. Carman, Carman Law Office, P.C., Billings, Montana

            For Appellees:

                   Kyle A. Gray, Robert L. Sterup, Holland & Hart, LLP, Billings, Montana

                   Kim K. Burke, Daniel R. Warncke, Taft, Stettinius, Hollister, LLP,
                   Cincinnati, Ohio



                                                Submitted on Briefs: August 26, 2009

                                                            Decided: October 13, 2009
Filed:

         __________________________________________
                           Clerk




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Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number, and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     Kuck Trucking, Inc. appeals from four orders of the Thirteenth Judicial District

Court, Yellowstone County, entered in two separate cases: Weiss v. Dyce Chemical and

Burbank v. Brenntag West, Inc. These cases were consolidated on appeal. We affirm.

¶3     In June 2000, the Weiss plaintiffs filed a class action complaint against Kuck and a

number of other defendants, including Brenntag West, Inc. (as successor in interest to

Dyce Chemical, Inc.), Brenntag, Inc. (as successor in interest to HCI USA Distribution

Companies), and Stinnes Corporation (as successor in interest to HCI Americas, Inc.)

(collectively HCI). The complaint alleged that the defendants had contaminated the soil,

water, and air in the town of Lockwood, Montana. In April 2004, HCI settled with the

Weiss plaintiffs and was dismissed from the suit. Kuck remained a party to the lawsuit,

as the plaintiffs alleged that Kuck was responsible in part for the contamination. In May

2007, Kuck filed a cross-complaint against HCI seeking damages for violation of the

Montana Constitution, strict liability, trespass, negligence, nuisance, wrongful occupation

of land, unjust enrichment, and indemnification/contribution. Kuck also sought punitive

damages.


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¶4     In January 2005, after HCI had been dismissed from the Weiss lawsuit, the

Burbank plaintiffs filed a similar class action complaint. Again, Kuck and HCI were

named as defendants. In November 2006, Kuck asserted the same cross-claims against

HCI in the Burbank lawsuit as it had asserted in the Weiss lawsuit. HCI settled with the

Burbank plaintiffs in April 2008.

¶5     On September 11, 2007, the Weiss Court granted HCI’s motion to dismiss Kuck’s

cross-complaint. The court observed that once parties settle, under § 27-1-704, MCA,

co-tortfeasors are barred from bringing contribution claims against the settling parties.

Moreover, the court noted that pursuant to M. R. Civ. P. 13(g), cross-claims may only be

asserted against co-parties. By the time Kuck filed its cross-complaint in 2007, HCI was

no longer a party to the Weiss lawsuit. Lastly, the court determined that the claims raised

by Kuck in its cross-complaint were barred by the statute of limitations.

¶6     On April 7, 2008, the Burbank Court granted summary judgment in favor of HCI

and dismissed Kuck’s cross-complaint. The court determined that Kuck’s claims were

barred for two reasons. First, the court concluded that Kuck’s claims were barred by the

statute of limitations. Under § 27-2-102(3)(a), MCA, the statute of limitations begins to

run when a party knew or should have known the facts constituting its claim. According

to the court, Kuck’s various tort claims were subject to two and three-year statutes of

limitations.   Because Kuck filed a pleading in 2001 alleging that contaminated

groundwater flowed from Dyce Chemical onto Kuck’s property, Kuck knew or should

have known of its claims against HCI by late 2001. Kuck’s claims were therefore barred

by the time Kuck filed its cross-complaint against HCI in November 2006.


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¶7    Second, the court concluded that Kuck’s claims were barred by collateral estoppel.

The court observed that identical issues were raised in the Weiss and Burbank lawsuits.

In particular, the statute of limitations arguments raised by Kuck were the same in both

cases. Next, it concluded that the Weiss Court reached a final judgment on the merits and

that the parties to both lawsuits were the same. Lastly, the court remarked that “[w]ith

extensive briefing and two hearings, Kuck has been heard.” Accordingly, the court

granted summary judgment in favor of HCI.

¶8    On June 6, 2008, the Burbank Court denied Kuck’s motion for reconsideration.

Less than a month later, the Weiss Court denied Kuck’s motion to clarify and motion for

leave to amend. Kuck now appeals from the September 11, 2007, April 7, 2008, June 6,

2008, and July 2, 2008 orders of the Weiss and Burbank Courts.

¶9    “The question of whether a district court properly granted a motion to dismiss is a

conclusion of law which we review to determine if the court’s interpretation and

application of the law is correct.” Fleenor v. Darby School Dist., 2006 MT 31, ¶ 6, 331

Mont. 124, 128 P.3d 1048. We review a district court’s decision to grant summary

judgment de novo. Libby Placer Min. Co. v. Noranda Min. Corp., 2008 MT 367, ¶ 25,

346 Mont. 436, 197 P.3d 924. The moving party must establish the absence of any

genuine issues of material fact and entitlement to judgment as a matter of law. Libby

Placer Min. Co., ¶ 25.

¶10   A motion for reconsideration is not authorized by the Montana Rules of Civil

Procedure. Horton v. Horton, 2007 MT 181, ¶ 7, 338 Mont. 236, 165 P.3d 1076. In fact,

“[t]his Court has handed down numerous decisions wherein we have explained that a


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‘motion for reconsideration’ does not exist under the Montana Rules of Civil Procedure.”

Horton, ¶ 14. Instead, a motion wrongly designated as one for reconsideration is equated

to a motion to alter or amend under M. R. Civ. P. 59(g). Horton, ¶ 14. We therefore

construe Kuck’s motion for reconsideration as a motion to amend. We review a district

court’s discretionary rulings, including denial of a motion to amend a complaint, for

abuse of discretion. Emanuel v. Great Falls School Dist., 2009 MT 185, ¶ 9, 351 Mont.

56, 209 P.3d 244.

¶11   Under § 27-1-704, MCA, “[a] release or covenant not to sue given to one of two or

more persons liable in tort for the same injury, death, damage, or loss” discharges “the

tortfeasor to whom it is given from all liability for contribution.” Kuck’s cross-claim

against HCI in the Weiss lawsuit for indemnification/contribution is clearly barred by

§ 27-1-704(3), MCA. Moreover, under M. R. Civ. P. 13(g), “[a] pleading may state as a

cross-claim any claim by one party against a coparty arising out of the transaction or

occurrence that is the subject matter either of the original action or of a counterclaim

therein or relating to any property that is the subject matter of the original action.”

Ultimately, cross-claims may only be asserted against co-parties. By the time Kuck filed

its cross-complaint against HCI in May 2007, HCI had been dismissed from the case for

over three years. Kuck’s cross-claims against HCI were barred, and the Weiss Court did

not err in granting HCI’s motion to dismiss. We also conclude that the court did not

abuse its discretion in denying Kuck’s motion to clarify and motion for leave to amend.

¶12   “The doctrine of collateral estoppel, which embodies the concept of ‘issue

preclusion,’ is a form of res judicata which bars a party from re-litigating an issue, as


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opposed to an entire claim, where that issue has been litigated and determined in a prior

suit.” Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 65, 345 Mont. 12, 192 P.3d 186.

Application of collateral estoppel in Montana has traditionally required that: 1) the

identical issue raised was previously decided in a prior adjudication; 2) a final judgment

on the merits was issued in the prior adjudication; 3) the party against whom collateral

estoppel is now asserted was a party or in privity with a party to the prior action; and 4)

the party against whom preclusion is asserted must have been afforded a full and fair

opportunity to litigate any issues which may be barred. Baltrusch v. Baltrusch, 2006 MT

51, ¶ 18, 331 Mont. 281, 130 P.3d 1267.

¶13   Here, the Weiss Court determined that the statute of limitations barred Kuck’s

claims. Kuck attempted to litigate the same issue again in the Burbank case. A final

judgment on the merits was issued in the prior adjudication. The Burbank Court noted

that “[c]learly, this matter was heard by Judge Todd, and he ruled Kuck missed the

statute of limitations.” Kuck was a party in both the Weiss and Burbank lawsuits. Lastly,

Kuck has been given two opportunities to litigate the statute of limitations issue. For

these reasons, Kuck is collaterally estopped from relitigating the statute of limitations

issue. Accordingly, the Burbank Court did not err in granting summary judgment in

favor of HCI. We also conclude that the court did not abuse its discretion in denying

Kuck’s motion to amend, wrongly designated as a motion for reconsideration.

¶14   We have determined to decide this case pursuant to Section 1, Paragraph 3(d)(v)

of our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record before us


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that this appeal is without merit because the legal issues are clearly controlled by settled

Montana law. With respect to the issues invoking judicial discretion, there clearly was

not an abuse of discretion.

¶15    Affirmed.


                                          /S/ PATRICIA O. COTTER

We concur:

/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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