                              No.    94-617
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1995


ESTATE OF ROBERT EIDE,
            Plaintiff and Respondent,
     -vs-
JASON TABBERT,
            Defendant and Appellant.



APPEAL FROM:     District Court of the First Judicial District,
                 In and for the County of Lewis and Clark,
                 The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Palmer Hoovestal, Attorney at Law, Helena,
                 Montana

            For Respondent:
                 James P. Reynolds; Reynolds, Mot1 & Sherwood
                 Helena, Montana



                                Submitted on Briefs:     April 20, 1995
                                              Decided:   July 27, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

     Jason Tabbert     (Tabbert)    a ppeals    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
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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 7'12.
         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 jaw
injury remains a fact issue to be resolved by the civil jury. On

                                        3
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 (19941, 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 (I99I),
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
(19841, 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;

                                     4
(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.
                      -I
     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 (19941, 265 Mont. 282, 288, 876
P.2d 632, 636.         However,   "[tlhe 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

                                             5
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 barIred1     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.     AetnaI 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

                                     6
person     charged    "cause[dI    serious bodily injury to another."
Section 45-5-202(l), 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 5 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

                                       7
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(S) (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 5 28(S) (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.




                                      8
we concur:
