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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
DOERR v. CHAFFEE
Cite as 29 Neb. App. 766
David B. Doerr, appellant, v. Philip Chaffee,
doing business as Falls City Aero
Service, appellee.
___ N.W.2d ___
Filed April 20, 2021. No. A-19-987.
1. Judgments: Claim Preclusion: Issue Preclusion: Appeal and Error.
The applicability of claim and issue preclusion is a question of law. On
a question of law, an appellate court reaches a conclusion independent
of the court below.
2. Judgments: Jurisdiction: Claim Preclusion. Claim preclusion bars
relitigation of any right, fact, or matter directly addressed or necessarily
included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits, and (4) the
same parties or their privies were involved in both actions.
3. Claim Preclusion. The doctrine of claim preclusion bars relitigation not
only of those matters actually litigated, but also of those matters which
might have been litigated in the prior action.
4. ____. The doctrine of claim preclusion rests on the necessity to terminate litigation and on the belief that a person should not be vexed twice
for the same cause.
5. ____. Claim preclusion bars the relitigation of a claim that has been
directly addressed or necessarily included in a former adjudication.
6. Issue Preclusion. Issue preclusion bars the relitigation of a finally
determined issue that a party had a prior opportunity to fully and
fairly litigate.
7. Claim Preclusion: Issue Preclusion. While claim preclusion and issue
preclusion are similar and serve similar purposes, they are distinct.
Among other differences, claim preclusion looks to the entire cause of
action, but issue preclusion looks to a single issue.
8. Claim Preclusion: Actions. The basis of the doctrine of claim preclusion is that the party to be affected, or someone with whom he or she
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DOERR v. CHAFFEE
Cite as 29 Neb. App. 766
is in privity, has litigated or has had an opportunity to litigate the same
matter in a former action.
9. Claim Preclusion: Issue Preclusion. Both claim preclusion and issue
preclusion require an identity or privity of parties.
Appeal from the District Court for Richardson County:
Julie D. Smith, Judge. Affirmed.
Jeffrey A. Gaertig, of Smith, Schafer, Davis & Gaertig,
L.L.C., for appellant.
Lindy L. Mahoney and Steven J. Mercure, of Nestor &
Mercure, for appellee.
Bishop, Arterburn, and Welch, Judges.
Welch, Judge.
INTRODUCTION
David B. Doerr appeals the Richardson County District
Court’s order dismissing his complaint with prejudice on the
ground that his claims were barred by the doctrine of claim
preclusion. For the reasons set forth here, we affirm.
STATEMENT OF FACTS
Due to the issues raised in this appeal regarding claim
preclusion, this court’s determination necessarily involves a
review of Doerr’s prior action in Richardson County District
Court, case No. CI 16-69, which the district court in the
current action agreed to judicially notice during the lower
court hearing. This prior action was appealed to this court as
case No. A-18-690, and although we summarily dismissed
the appeal on January 4, 2019, on Doerr’s own motion, our
record of that appeal contains a transcript, which includes the
complaint, court orders, and other documents which we find
necessary to review in order to determine the instant appeal.
In interwoven and interdependent cases, we may examine
our own records and take judicial notice of the proceedings
and judgment in a former action involving one of the parties.
Western Ethanol Co. v. Midwest Renewable Energy, 305 Neb.
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DOERR v. CHAFFEE
Cite as 29 Neb. App. 766
1,
938 N.W.2d 329 (2020). Additionally, an appellate court
may take judicial notice of a document, including briefs filed
in an appeal, in a separate but related action concerning the
same subject matter in the same court.
Id. Thus, our review of
the instant case, in accordance with the district court’s judicial
notice of the prior lawsuit, involves our taking judicial notice
of the transcript filed in case No. A-18-690.
In April 2016, Doerr filed a complaint in the Richardson
County District Court against the City of Falls City, Nebraska,
and the Falls City Airport Authority (collectively Falls City),
alleging that Falls City was liable to Doerr under claims sounding in negligence and bailment. Specifically, Doerr alleged that
Falls City lost or misplaced his airplane’s logbooks, which
Doerr placed in Falls City’s custody or control, and that Falls
City was responsible for the missing logbooks. Falls City
denied the allegations and affirmatively alleged in its answer
that the logbooks were given to Philip Chaffee, an independent
contractor, in order for Chaffee to perform an annual inspection
of Doerr’s airplane. Falls City separately brought a third-party
claim against Chaffee under an indemnity theory in the event it
was found liable under Doerr’s direct claim against Falls City.
After filing the third-party claim against Chaffee, Falls City
filed a motion requesting that Doerr add Chaffee as a direct
defendant while arguing Chaffee was a necessary party to the
civil action. In overruling Falls City’s motion, the district court
stated on the record:
I think that . . . Chaffee is in this lawsuit and . . . he’s
subjected himself to the jurisdiction of the Court, and I
think the whole purpose of a necessary party is to make
sure, when the Court resolves the case, the Court has
complete closure with all of the parties who are necessary
to the lawsuit.
Following this ruling, even though Chaffee remained a third-party defendant through the duration of the civil action identified as case No. CI 16-69, Doerr never brought a direct claim
against Chaffee within that action.
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DOERR v. CHAFFEE
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In November 2017, Falls City moved for summary judgment on the basis that there was no genuine issue as to any
material fact in the case and that Falls City was entitled to
judgment as a matter of law. Also in November, Doerr filed a
motion to bifurcate trial on the issues of liability and damages
and represented to the court that counsel for Falls City and
Chaffee did not object to the court’s granting the motion to
bifurcate. Despite this motion to bifurcate, in a February 2018
order denying Falls City’s motion for summary judgment, the
court stated:
The Court, on its own motion, hereby bifurcates the
trial in this matter. First, the Court will hear evidence as
to whether . . . Chaffee is an employee of [Falls City]
and whether he possessed [Doerr’s] logbooks within the
scope of his employment. If the court determines that . . .
Chaffee was not acting within the scope of his employment, if any, this matter will be dismissed. If the Court
determines that . . . Chaffee was acting within the scope
of his employment, the Court will set the remainder of the
trial, as to whether there was a breach of duty, damages,
and any other issues, at a later date.
The first part of the bifurcated trial, tried solely on the issue
of whether Chaffee was acting within the scope of his employment, was held in March 2018. Following the completion of
Doerr’s case in chief, Falls City and Chaffee jointly moved for
a directed verdict. On April 9, the district court found:
Chaffee, while engaging in the business of repair and
maintenance of aircraft, and conducting annual inspections, was not an agent or employee of [Falls City]. . . .
Chaffee took [Doerr’s] logbooks into his possession in
his capacity as the owner of Falls City Aero Service. The
Court grants a partial directed verdict on this issue.
However, the court found that reasonable minds could differ
regarding whether Chaffee, in his capacity as the airport manager, was an employee or agent of Falls City and whether Falls
City conferred apparent authority upon him. The court thus
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DOERR v. CHAFFEE
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set a hearing for May 8 for presentation of further evidence
by Falls City and Chaffee. Following this hearing, on May
17, the district court dismissed Doerr’s claim against Falls
City, after finding Chaffee was not a Falls City employee,
and correspondingly dismissed Falls City’s indemnity claim
against Chaffee.
After the court entered its order on April 9, 2018, but prior
to entering its final dismissal order on May 17, Doerr filed a
complaint as a separate civil action in the Richardson County
District Court against Chaffee, case No. CI 18-60, alleging the
same facts and theories he alleged against Falls City, although
now bringing that claim as a direct claim against Chaffee.
In May 2019, Chaffee filed a motion to dismiss case No.
CI 18-60, alleging that the subsequent claim was barred by the
doctrines of res judicata and laches.
A hearing on Chaffee’s motion to dismiss was held on June
18, 2019. During the hearing, the court agreed to take judicial
notice of case No. CI 16-69 and received five exhibits: Falls
City’s motion in case No. CI 16-69 to require Doerr to amend
his complaint to add a necessary party identified as Chaffee;
the bill of exceptions in case No. CI 16-69 from the July 26,
2016, hearing in which Falls City argued that Chaffee was a
necessary party to the proceedings; the district court’s order
denying Falls City’s motion to require Doerr to amend his
complaint and add Chaffee as a necessary party; and copies of
the defendant’s and plaintiff’s briefs provided in connection
with their respective positions.
On September 16, 2019, the district court granted Chaffee’s
motion to dismiss with prejudice, finding that the claims raised
in Doerr’s complaint were barred by the doctrine of claim
preclusion because (1) the prior judgment was rendered by a
court of competent jurisdiction and, in fact, the current action
arose out of the same set of facts and was brought in the
same court as the prior action; (2) the former judgment was a
final, appealable judgment; (3) the prior judgment was a judgment on the merits in that it decided the negligence cause of
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DOERR v. CHAFFEE
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action, and Doerr voluntarily dismissed his bailment cause of
action; and (4) the same parties or privies were involved in the
prior action, in that Chaffee was a party in the prior action and
Doerr had an opportunity to make him a defendant and assert
these same claims against him in the prior action but chose not
to do so. The court also found that the doctrine of laches was
not applicable as “the Court makes no finding that [Doerr] has
acted with inexcusable neglect.”
ASSIGNMENT OF ERROR
Doerr’s sole assignment of error is that the district court
erred in granting Chaffee’s motion to dismiss by finding that
claim preclusion barred his claims against Chaffee.
STANDARD OF REVIEW
[1] The applicability of claim and issue preclusion is a question of law. Hill v. AMMC, Inc., 300 Neb. 412,
915 N.W.2d
29 (2018). On a question of law, an appellate court reaches a
conclusion independent of the court below.
Id.
ANALYSIS
The facts governing our analysis are not in dispute. Doerr
originally brought this claim against Falls City in case No.
CI 16-69 seeking recovery from Falls City under theories of
bailment and negligence and claiming that Falls City was
responsible for his lost logbooks. Falls City denied the allegations and affirmatively pled that the logbooks were provided by
Doerr directly to Chaffee, who was an independent contractor.
Chaffee was made a third-party defendant in that lawsuit by
Falls City under an indemnity claim, but Doerr failed to bring
a direct claim against Chaffee within case No. CI 16-69.
Following the district court’s order issued on April 9, 2018,
wherein it found Chaffee was not a Falls City employee, but
prior to the court’s dismissal order involving case No. CI 16-69
issued on May 17, Doerr filed, as a separate civil action, a complaint against Chaffee identified as case No. CI 18-60, alleging the same facts and grounds alleged in case No. CI 16-69,
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DOERR v. CHAFFEE
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albeit now filed as a claim directly against Chaffee and not
against Falls City. The legal question presented in Doerr’s sole
assignment of error is whether that second claim is barred by
the doctrine of claim preclusion under these undisputed facts.
We find that it is.
[2-4] Claim preclusion bars relitigation of any right, fact, or
matter directly addressed or necessarily included in a former
adjudication if (1) the former judgment was rendered by a
court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits,
and (4) the same parties or their privies were involved in both
actions. Marie v. State, 302 Neb. 217,
922 N.W.2d 733 (2019).
The doctrine bars relitigation not only of those matters actually
litigated, but also of those matters which might have been litigated in the prior action.
Id. The doctrine rests on the necessity
to terminate litigation and on the belief that a person should not
be vexed twice for the same cause.
Id.
[5-7] In McGill v. Lion Place Condo. Assn., 291 Neb. 70,
864 N.W.2d 642 (2015), the Nebraska Supreme Court noted
that in the past, Nebraska courts have referred to the concepts
of claim preclusion and issue preclusion as res judicata and
collateral estoppel, respectively. The court further explained:
Claim preclusion bars the relitigation of a claim that
has been directly addressed or necessarily included in a
former adjudication. Issue preclusion bars the relitigation of a finally determined issue that a party had a prior
opportunity to fully and fairly litigate. While the doctrines
are similar and serve similar purposes, they are distinct.
Among other differences, claim preclusion looks to the
entire cause of action, but issue preclusion looks to a
single issue.
Id. at 85, 864 N.W.2d at 654-55.
Here, Doerr concedes the first two factors, i.e., that the
former judgment was rendered by a court of competent jurisdiction and that the former judgement was a final judgment.
However, Doerr argues that
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DOERR v. CHAFFEE
Cite as 29 Neb. App. 766
the final order dismissed Doerr’s negligence and bailment claims against the City of Falls City and the Falls
City Airport Authority, which in turn dismissed the City’s
and the Airport Authority’s indemnification claim against
Chaffee. The final order entered by the Court in Doerr’s
case against the City and the Airport Authority did not
act, and was not, a former judgment on the merits of any
claims or causes of action for negligence or bailment
against Chaffee.
Brief for appellant at 9 (emphasis in original). Doerr contends:
By ultimately finding that Chaffee was not an employee
of the City or the Airport Authority, the trial court [in the
prior case] held that Doerr was barred from recovering
from the City or the Airport Authority under the Political
Subdivisions Tort Claims Act. While Doerr and Chaffee
are the same parties involved in both the present action
and the prior action, the district court failed to follow
through with the proper “on the merits” analysis required
for claim preclusion to apply in this case.
Brief for appellant at 10 (emphasis in original). Doerr further
argues that “[t]he issues of negligence and bailment that Doerr
raised against the City and the Airport Authority do not go to
the merits of the indemnification claim that the City/Airport
Authority alleged against Chaffee.” Id.
In short, Doerr argues that although his claims of negligence
and bailment were resolved on the merits in a court of competent jurisdiction against Falls City, those same claims were not
resolved on the merits against Chaffee. As such, Doerr argues
that although Chaffee was a party to the proceedings, because
the district court’s resolution on the merits did not directly
apply to its claim against Chaffee, the doctrine of claim preclusion does not apply to bar his claim now.
In support of his contention, Doerr directs us to McGill v.
Lion Place Condo. Assn.,
291 Neb. 70, 86,
864 N.W.2d 642,
655 (2015), wherein the Nebraska Supreme Court held, “‘“In
order that parties for or against whom the doctrine of res
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DOERR v. CHAFFEE
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judicata is sought to be applied may be regarded the same in
both actions, the general rule is that they must be parties to
both actions in the same capacity or quality.”’” (Emphasis in
original.) Doerr argues that although Chaffee was a party to the
prior proceedings, Chaffee was not a party in the same “capacity” as he is now and the merits of the case were not resolved
in relation to him. Accordingly, Doerr concludes that under
these circumstances, claim preclusion does not apply. Contrary
to Doerr’s assertion, the Nebraska Supreme Court’s statement
cited by Doerr was made in reference to identifying whether
the parties to the prior and subsequent actions are the same.
In McGill, the court found the plaintiff brought the first claim
against the defendant in his individual capacity and the second
claim alleging the same cause of action against the defendant
in a derivative capacity. As such, the basis of the court’s holding in McGill was not whether the specific claim was litigated
against all parties in the prior proceeding, but whether all parties in the prior and subsequent proceedings were the same.
Here, there is no question that Doerr and Chaffee were parties
to both proceedings.
[8,9] Contrary to Doerr’s argument, the Nebraska Supreme
Court also held in McGill v. Lion Place Condo. Assn.,
291 Neb.
at 87, 864 N.W.2d at 656 (2015), that “the basis of the doctrine
of res judicata is that the party to be affected, or someone with
whom he or she is in privity, has litigated or has had an opportunity to litigate the same matter in a former action.” “Both
claim preclusion and issue preclusion require an identity or
privity of parties.” Id. at 86, 864 N.W.2d at 655.
Applying prior jurisprudence governing the doctrine of
claim preclusion to the case at bar, all four elements of claim
preclusion are met here. In case No. CI 16-69, the district
court rendered a final judgment governing Doerr’s claims
grounded in negligence and bailment concerning the same
facts and legal causes of action subsequently filed in case
No. CI 18-60. Although Doerr chose to not pursue those
same claims against Chaffee directly at the time he filed and
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litigated the case against Falls City, the claim was decided on
the merits in a case in which Chaffee was added and involved
as a party. As we previously noted, “the basis of the doctrine
of res judicata is that the party to be affected, or someone
with whom he or she is in privity, has litigated or has had an
opportunity to litigate the same matter in a former action.”
McGill v. Lion Place Condo. Assn.,
291 Neb. at 87, 864
N.W.2d at 656 (emphasis supplied).
The dissent is persuaded that there is legal significance to
the district court’s denial of Falls City’s motion to add Chaffee
as a direct defendant under the rules governing necessary parties; to the fact that Doerr’s separate claim was filed by Doerr
in case No. CI 18-60 prior to the court’s order of dismissal in
case No. CI 16-69; and to the fact that the district court never
directly addressed Doerr’s cause of action against Chaffee in
case No. CI 16-69—only his claim against Falls City which
arose from the same facts. We respectfully disagree.
As seen from the text of its order, the district court denied
Falls City’s motion to add Chaffee as a direct party not
because the court found Chaffee was not a necessary party,
but because Chaffee had already been added as a party to the
proceedings and had been subjected to the court’s jurisdiction. The district court surmised, “I think the whole purpose
of a necessary party is to make sure, when the Court resolves
the case, the Court has complete closure with all of the parties who are necessary to the lawsuit.” As we stated before,
because Chaffee was added as a party to these proceedings,
Doerr was bound by the doctrine of claim preclusion if all four
elements governing that doctrine were present. Application of
the elements likewise resolves the issue governing Doerr’s
filing of a separate civil action just prior to the court’s order
of dismissal in case No. CI 16-69. By refusing to file a direct
claim against Chaffee in case No. CI 16-69, which claim
involved the same factual matter, Doerr was bound by the doctrine of claim preclusion once the district court’s judgment in
case No. CI 16-69 became final. And because the doctrine has
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been applied to bar not only relitigation of claims that were
brought in the prior proceeding, but, also, to include claims
which could have been brought against parties to the proceeding involving the same subject matter, we find the dissent’s
concern—that Doerr’s direct claim against Chaffee has not yet
been litigated—as not dispositive.
Here, Doerr litigated the matter of the lost logbooks against
Falls City in case No. CI 16-69 and had the opportunity to
litigate that same matter against Chaffee, who was a party
and was involved in that same proceeding. Although the district court did not decide Doerr’s claim against Chaffee on
the merits in the prior proceeding, it did decide that claim on
the merits against Falls City, another party in the proceeding,
and did not reach the claim against Chaffee simply because
of Doerr’s decision not to raise it in that proceeding. Because
Doerr had the opportunity in case No. CI 16-69 to litigate his
claim against Chaffee involving the same matter in a former
action, he is precluded from doing so now.
CONCLUSION
Having found the district court did not err in finding Doerr’s
claim against Chaffee is barred by the doctrine of claim preclusion, we affirm the order of the district court.
Affirmed.
Bishop, Judge, dissenting.
I respectfully dissent from the majority opinion because I
agree with Doerr that the May 17, 2018, judgment entered in
case No. CI 16-69 was not a final judgment on the merits of
his claims for negligence or bailment against Chaffee. Thus,
Doerr’s complaint against Chaffee filed on April 27 in case
No. CI 18-60, before final judgment was entered in case No.
CI 16-69, should be allowed to proceed. Although the majority acknowledges that the district court did not decide Doerr’s
claim against Chaffee on the merits, the majority concludes
that since Doerr had the opportunity to raise that claim in
case No. CI 16-69 and chose not to raise it, he was precluded
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from bringing a separate action against Chaffee in case No.
CI 18-60. In my opinion, there are several factors that work
against dismissal under claim preclusion principles.
First, the complaint in case No. CI 16-69 was brought
against Falls City under the Political Subdivisions Tort Claims
Act. After Falls City filed its third-party complaint against
Chaffee seeking possible indemnification from him, it then
filed a motion asking the court to require Doerr to amend his
complaint to add Chaffee as a necessary party. The district
court denied that request. As noted by the majority, the ration
ale of the court at that time was that Chaffee had “subjected
himself to the jurisdiction of the [c]ourt” and that the “purpose of a necessary party is to make sure, when the [c]ourt
resolves the case, the [c]ourt has complete closure with all
of the parties who are necessary to the lawsuit.” However,
that decision missed the point of adding Chaffee as a necessary defendant in the action, alongside Falls City, rather than
leaving Chaffee in the action solely as a third-party defendant
subject only to a possible indemnification claim against him
by Falls City. Therefore, given that a somewhat misleading
order already existed denying a request to have the operating complaint amended to add Chaffee as a direct defendant
in case No. CI 16-69, it is understandable that Doerr elected
to file a separate action against Chaffee rather than seek to
amend his complaint in the pending action under the Political
Subdivisions Tort Claims Act. Notably, Doerr filed his action
against Chaffee on April 27, 2018, before the district court
reached its final decision in case No. CI 16-69 on May 17.
Second, while Doerr acknowledges that claim preclusion
bars not only those matters actually litigated, but also those
which might have been litigated, he contends that the procedural aspects of case No. CI 16-69 resulted in that case being
decided on the “narrow issue as to whether . . . Chaffee was
an employee or independent contractor.” Brief for appellant at
12. He suggests that the bifurcation of the case “steered away
from the merits as it relates to Chaffee.” Id. at 10. I agree. The
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district court decided to bifurcate the trial in case No. CI 16-69
into two parts: (1) to first consider whether Chaffee was an
employee of the defendants and whether his possession of the
logbooks was within the scope of his employment, and (2) to
then consider whether there was a breach of duty and damages. A partial directed verdict was entered on April 9, 2018,
which left open the issue of whether Chaffee, in his capacity
as airport manager, was an employee or agent of Falls City or
whether Falls City conferred apparent authority upon him. The
parties were given an opportunity for further hearing to put on
evidence of Chaffee’s status. Shortly thereafter, Doerr filed his
complaint against Chaffee in case No. CI 18-60. Then, on May
17, the district court entered an order concluding that Chaffee
was not an employee of Falls City and entered judgment in
favor of Falls City. And because Doerr did not recover a judgment against Falls City, the court ordered that Chaffee was not
liable to Falls City and thus the indemnification claim was also
dismissed with prejudice. Issues related to Chaffee’s liability
under claims of negligence or bailment were never adjudicated
or determined.
Finally, I agree with Doerr that although he and Chaffee
were parties in both actions, they “were not and are not in
the same capacity or quality.” Brief for appellant at 11. See
McGill v. Lion Place Condo. Assn.,
291 Neb. 70,
864 N.W.2d
642 (2015) (in order that parties for or against whom doctrine
of claim preclusion is sought to be applied may be regarded
same in both actions, general rule is that they must be parties
to both actions in same capacity or quality). Doerr points out
that Chaffee was added as a third-party defendant by Falls
City on its claim for indemnification in case No. CI 16-69,
and he contends that is different from Chaffee’s capacity as
a defendant in case No. CI 18-60. In other words, Chaffee’s
capacity as a third-party defendant for possible indemnification resulting from his duty as an employee or agent of Falls
City is distinguishable from his capacity as a defendant in the
present action where liability would depend upon his duty
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owed directly to Doerr. I find this argument persuasive in the
present case for two reasons. First, an effort to have Doerr add
Chaffee as a defendant in case No. CI 16-69 was denied by the
district court, as discussed previously. Also, Chaffee’s duty, if
any, to Doerr was never adjudicated in the prior proceeding;
rather, case No. CI 16-69 turned solely on the district court’s
consideration and determination of Chaffee’s capacity in terms
of the nature of his relationship with Falls City.
In summary, the factors described above lead me to the conclusion that there has not been a final judgment on the merits
with regard to Doerr’s claims against Chaffee and that Doerr
should not be barred from pursuing the present action simply
because he elected to file a separate action against Chaffee
before final judgment was reached in case No. CI 16-69. I
appreciate that the doctrine of claim preclusion rests on the
necessity to terminate litigation and on the belief that a person should not be vexed twice for the same cause. However,
subjecting Chaffee to Doerr’s present action would not be
vexing him twice for the same cause. Chaffee has not been
subjected to any adjudication related to his potential liability
for the missing logbooks; rather, the only adjudication to date
involved examining and determining Chaffee’s working relationship with Falls City. While limits on litigation are desirable, a person should not be denied a day in court unfairly. See
McGill v. Lion Place Condo.
Assn., supra. I would therefore
reverse the decision of the district court and remand the cause
for further proceedings.
