Jordan v. Jordan , 26 Neb. Ct. App. 280 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/11/2018 01:08 AM CDT
- 280 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
Gary R. Jordan, appellant, v. K elly R.
Jordan, now known as K elly R.
Fairchild, et al., appellees.
___ N.W.2d ___
Filed September 4, 2018. No. A-17-688.
1. Collateral Estoppel: Res Judicata. The applicability of the doctrines of
collateral estoppel and res judicata is a question of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
3. Issue Preclusion. Issue preclusion bars relitigation of a finally deter-
mined issue that a party had a prior opportunity to fully and fairly
litigate.
4. Judgments: Issue Preclusion. Issue preclusion applies where (1) an
identical issue was decided in a prior action, (2) the prior action resulted
in a final judgment on the merits, (3) the party against whom the doc-
trine is to be applied was a party or was in privity with a party to the
prior action, and (4) there was an opportunity to fully and fairly litigate
the issue in the prior action.
5. Issue Preclusion. Issue preclusion applies only to issues actually
litigated.
6. Judgments: Words and Phrases. A judgment is on the merits if the
judgment is based upon legal rights, as distinguished from mere matters
of practice, procedure, jurisdiction, or form.
7. Issue Preclusion: Parties. Privity implies a relationship by succession
or representation between the party to the second action and the party to
the prior action in respect to the right adjudicated in the first action.
8. Issue Preclusion: Words and Phrases. In its broadest sense, “privity”
is defined as mutual or successive relationships to the same right of
property, or such an identification of interest of one person with another
as to represent the same legal right.
- 281 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
9. Issue Preclusion. For the purpose of issue preclusion, the mere fact that
litigants in different cases are interested in the same question or desire to
prove or disprove the same fact or set of facts is not a basis for privity
between the litigants.
10. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Phelps County: Terri S.
H arder, Judge. Affirmed.
Kent A. Schroeder, of Ross, Schroeder & George, L.L.C.,
for appellant.
Galen E. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for
appellee.
Pirtle, R iedmann, and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
Gary R. Jordan appeals from an order of the district court
for Phelps County finding that it lacked subject matter jurisdic-
tion to determine Gary’s action against Kelly R. Jordan, now
known as Kelly R. Fairchild, because his causes of action were
barred by collateral estoppel. Based on the reasons that follow,
we affirm.
BACKGROUND
On July 21, 2016, Gary filed an amended complaint against
Kelly, alleging that he was the owner of a “1976 Century
manufactured home” (mobile home) and that on July 28, 2014,
Kelly wrongfully converted a certificate of title for the mobile
home to her own name. It further stated that Kelly may claim
an interest in the property adverse to him, which claim is with-
out any right. Gary asked the court to find that Kelly converted
his personal property and to determine how much money
it will take to compensate him for the conversion. Gary’s
- 282 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
amended complaint also alleged a replevin cause of action.
It stated that Kelly wrongfully detained the mobile home and
asked for a judgment against Kelly for the return of the mobile
home or the value thereof.
Kelly filed an answer alleging that she was the owner of the
mobile home and that she was awarded the home in a decree
of dissolution entered by the district court for Buffalo County.
Kelly denied that she “wrongfully converted” the certificate
of title to her own name. She also alleged, as an affirmative
defense, that Gary was collaterally estopped from relitigat-
ing the issue of ownership of the mobile home, because the
issue was previously litigated in the dissolution of marriage
action between her and Richard Jordan, Gary’s son, a final
order was entered determining ownership, and no appeal was
taken therefrom.
Trial on Gary’s amended complaint was held in April 2017.
The evidence showed that Kelly and Richard were divorced
by a decree entered by the district court for Buffalo County on
November 15, 2013. Prior to the dissolution trial, Kelly filed
a property statement in which she identified the mobile home,
located in Grand Island, Nebraska, as a marital asset valued
at $10,000 and noted that the asset was in Richard’s posses-
sion. An “Amended Joint Property Statement” was entered
into evidence on the second day of the dissolution trial, which
showed that Richard was disputing that he was in possession
of the mobile home and claimed that Gary was the owner of
the mobile home.
The ownership of the mobile home was an issue at the disso-
lution trial between Kelly and Richard. While Gary testified as
a witness at the trial in regard to the mobile home, at no time
did he seek to intervene in the proceeding. He testified that he
bought the mobile home and that the initial title was issued
in his name and in the name of his girlfriend, Gloria Siverly.
Gary testified that neither Kelly nor Richard provided any
funds to purchase the mobile home. He and Siverly lived in the
home initially, and Gary claimed he was living in it at the time
- 283 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
of the dissolution trial. Gary testified that he later transferred
title to Richard and Siverly because he was having health
issues. The record before us contains a Nebraska certificate of
title issued in October 1997, purportedly showing Richard and
Siverly to be the titled owners of the mobile home. However, it
should be noted that at no time did anyone seek to add Siverly
as a necessary party to the divorce proceedings.
Gary testified in the present case that when he and Siverly
broke up, prior to Kelly and Richard’s divorce, Siverly signed
over the title to the mobile home and then he had a new title
issued in Richard’s name only. Gary testified that shortly after
the divorce, Richard also signed the title and Gary then had the
title issued in his own name only. This explanation is supported
by exhibits 10 and 11, where it appears that Siverly signed the
title giving up her interest and then Richard added his signature
after the divorce decree was entered.
The record also contains Gary’s response to requests for
admissions wherein he was asked to admit or deny that title
to the mobile home was titled in Siverly’s name from 1996 to
2002. He denied it, stating that title was initially issued in his
and Siverly’s names; that title was transferred to Richard and
Siverly when Gary started having health issues; that he and
Siverly broke up in 2002 or 2003; and that before she left, she
signed the title and left it with him.
In the decree of dissolution, the court found that the mobile
home was a marital asset valued at $10,000 and awarded it to
Kelly. About a month after the divorce decree was entered,
Richard transferred title to the mobile home to Gary.
No direct appeal was taken from the decree, but Kelly and
Richard each filed a motion for new trial or, in the alternative,
to alter or amend the decree. The court made a minor modi-
fication to the decree, but overruled both motions in an order
dated June 17, 2014. No change to the decree was made with
respect to the mobile home awarded to Kelly, but the district
court for Buffalo County made the following findings with
regard to the mobile home:
- 284 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
[Richard’s] affidavit offered at the time of motion hear-
ing makes an additional reference to a mobile home not
mentioned in the motion itself . . . .
....
Richard’s affidavit does appear to point out a potential
problem in the Court’s award. Unfortunately, the evidence
is so meager as to whether this was marital property or
the property of a third-party that there is no true basis
for the Court to make an order other than paragraph 4 of
Richard’s affidavit, for which there is no foundation and
which is apparently based upon hearsay. Kelly’s counsel
objected at the time of the motion for hearing on these
grounds and the Court must find that the objection should
be sustained.
....
Richard’s motion in this regard should be [and] the
same hereby is overruled.
No appeal was taken from the order overruling the motions
for new trial or, in the alternative, to alter or amend. At that
point, Kelly utilized the divorce decree to obtain a title to the
mobile home in her name in Hall County. She subsequently
sold the mobile home to a third party for $10,000, the value
that had been placed on it in the divorce decree.
Following trial in the instant case, the trial court found that
collateral estoppel applied to Gary’s action and that therefore,
it lacked subject matter jurisdiction to determine the contro-
versy, and it dismissed the amended complaint. The court went
on to find that regardless of the doctrine of collateral estop-
pel, Gary did not meet his burden of proof to recover on his
actions for conversion and replevin.
ASSIGNMENTS OF ERROR
Gary assigns that the district court erred in (1) finding
that it lacked subject matter jurisdiction and dismissing his
causes of action, (2) finding that he failed to establish the
necessary elements of conversion, and (3) dismissing his
amended complaint.
- 285 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
STANDARD OF REVIEW
[1,2] The applicability of the doctrines of collateral estop-
pel and res judicata is a question of law. Woodward v.
Andersen, 261 Neb. 980, 627 N.W.2d 742 (2001). On a ques-
tion of law, an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the court
below. Id.
ANALYSIS
Gary first argues that the court erred in finding that it lacked
subject matter jurisdiction. The court made this determina-
tion after concluding that collateral estoppel applied to Gary’s
causes of action. As we begin our analysis of whether Gary’s
claims are barred by collateral estoppel, we note that courts
and commentators have moved away from using the term
“collateral estoppel” and now use the term “issue preclusion.”
See Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
Accordingly, we will use the term “issue preclusion” in our
analysis of the issue.
[3-5] Issue preclusion bars relitigation of a finally deter-
mined issue that a party had a prior opportunity to fully and
fairly litigate. See Shriner v. Friedman Law Offices, 23 Neb.
App. 869, 877 N.W.2d 272 (2016). Issue preclusion applies
where (1) an identical issue was decided in a prior action, (2)
the prior action resulted in a final judgment on the merits, (3)
the party against whom the doctrine is to be applied was a
party or was in privity with a party to the prior action, and (4)
there was an opportunity to fully and fairly litigate the issue
in the prior action. Id. Issue preclusion applies only to issues
actually litigated. Id.
The trial court found that all four elements necessary for
issue preclusion exist in this case. We agree.
The first element of issue preclusion—the identical issue
was decided in a prior action—is met. In the instant case, Gary
raises the issue of who owns the mobile home. He alleges that
he is the rightful owner of the mobile home and that Kelly
wrongfully converted title to her own name. However, the
- 286 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
issue of who owns the mobile home was previously litigated
and decided in the decree dissolving the marriage between
Kelly and Richard. Kelly claimed that the mobile home was a
marital asset in Richard’s possession; Richard contested that he
had possession and claimed that Gary owned the home. Gary
testified at the dissolution trial that the mobile home belonged
to him, yet he never sought to intervene in the matter. The
court ultimately determined that the mobile home was a mari-
tal asset and awarded it to Kelly in the decree. Therefore, the
issue of who owned the mobile home was previously litigated
and decided in a prior action.
[6] The second element of issue preclusion—a judgment
on the merits which was final—is also met. The decision by
the trial court in the divorce proceedings was on the merits. A
judgment is on the merits if the judgment is based upon legal
rights, as distinguished from mere matters of practice, proce-
dure, jurisdiction, or form. See Jamie N. v. Kenneth M., 23
Neb. Ct. App. 1, 867 N.W.2d 290 (2015). As previously discussed,
the ownership of the mobile home was at issue in Kelly and
Richard’s dissolution proceedings and after hearing evidence
on the matter, the trial court determined it was a marital asset
and awarded it to Kelly. Neither party appealed the decree of
dissolution or the order on the motion for new trial or to alter
or amend the judgment. The decree is a final order as defined
by Neb. Rev. Stat. § 25-1902 (Reissue 2016). Accordingly, the
court’s decision to award Kelly the mobile home in the divorce
decree was a final judgment on the merits.
[7-9] The third element of issue preclusion is that the party
against whom the doctrine is to be applied was a party or
was in privity with a party to the prior action. Gary, the party
against whom the rule is to be applied, was not a party in
the divorce action, but was in privity with a party, Richard.
Privity implies a relationship by succession or representa-
tion between the party to the second action and the party to
the prior action in respect to the right adjudicated in the first
action. Thomas Lakes Owners Assn. v. Riley, 9 Neb. Ct. App. 359,
- 287 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
612 N.W.2d 529 (2000). In its broadest sense, “privity” is
defined as mutual or successive relationships to the same right
of property, or such an identification of interest of one person
with another as to represent the same legal right. Id. For the
purpose of issue preclusion, the mere fact that litigants in dif-
ferent cases are interested in the same question or desire to
prove or disprove the same fact or set of facts is not a basis
for privity between the litigants. Id.
In the present case, Gary and Richard are related—Gary is
Richard’s father. Further, the record shows that at the dissolu-
tion trial, Richard claimed that Gary owned the mobile home
and Gary was called as a witness by Richard and allowed to
testify in regard to his ownership status. Based on the relation-
ship between Gary and Richard, and Gary’s involvement in
the dissolution trial, we agree with the trial court that privity
exists between Gary and Richard and that the third element of
issue preclusion has been met.
The fourth element of issue preclusion requires that there
was an opportunity to fully and fairly litigate the issue in the
prior action. Again, the ownership of the mobile home was
an issue in the dissolution proceeding. The record shows that
Richard presented evidence in the divorce proceeding to show
that Gary owned the mobile home. Specifically, Gary himself
testified about the ownership status of the home. There was no
appeal filed from the decree, but Richard did file a motion for
new trial or, in the alternative, to alter or amend the judgment.
One of the issues he raised was the ownership of the mobile
home. The court found there was no competent evidence to
show that Gary owned the mobile home and denied the motion.
No appeal was filed. We conclude that there was an opportu-
nity to fully and fairly litigate the issue of ownership of the
mobile home in the prior action, and the fourth element has
been met.
We determine that issue preclusion bars Gary from relitigat-
ing the issue of who owned the mobile home. This issue was
conclusively decided as part of the dissolution action between
- 288 -
Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
JORDAN v. JORDAN
Cite as 26 Neb. Ct. App. 280
Kelly and Richard. Accordingly, the court did not err in con-
cluding that it did not have subject matter jurisdiction because
issue preclusion barred Gary’s causes of action.
[10] Gary next assigns that the trial court erred in finding
that he failed to establish the necessary elements of conver-
sion. Because we conclude that issue preclusion applies to
Gary’s cause of action for conversion and that the court prop-
erly dismissed his amended complaint, we need not address
this assignment of error. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it. Essink v. City of Gretna, 25
Neb. Ct. App. 53, 901 N.W.2d 466 (2017).
CONCLUSION
We conclude the trial court did not err in finding that Gary’s
causes of action were barred by issue preclusion and that it did
not have subject matter jurisdiction. Accordingly, the order of
the district court is affirmed.
A ffirmed.