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JORDAN v. JORDAN

Cite as 26 Neb. App. 280

Gary R. Jordan, appellant, v. Kelly R. 

Jordan, now known as Kelly 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 determined 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 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.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/11/2018 08:08 AM CDT
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JORDAN v. JORDAN

Cite as 26 Neb. 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. 

Harder, 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, Riedmann, 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 jurisdiction 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 without 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 
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JORDAN v. JORDAN

Cite as 26 Neb. 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 relitigating 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 possession. 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 dissolution 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 
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JORDAN v. JORDAN

Cite as 26 Neb. 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 modification 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:
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JORDAN v. JORDAN

Cite as 26 Neb. App. 280

[Richard’s] affidavit offered at the time of motion hearing 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 controversy, and it dismissed the amended complaint. The court went 

on to find that regardless of the doctrine of collateral estoppel, 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.
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JORDAN v. JORDAN

Cite as 26 Neb. App. 280

STANDARD OF REVIEW

[1,2] The applicability of the doctrines of collateral estoppel and res judicata is a question of law. Woodward v. 

Andersen, 261 Neb. 980, 627 N.W.2d 742 (2001). On a question of law, an appellate court is obligated to reach a conclusion 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 determination 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 determined 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 
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JORDAN v. JORDAN

Cite as 26 Neb. 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 marital 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, procedure, jurisdiction, or form. See Jamie N. v. Kenneth M., 23 

Neb. 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 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. Thomas Lakes Owners Assn. v. Riley, 9 Neb. App. 359, 
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JORDAN v. JORDAN

Cite as 26 Neb. 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 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. Id.

In the present case, Gary and Richard are related—Gary is 

Richard’s father. Further, the record shows that at the dissolution 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 relationship 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 opportunity 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 relitigating the issue of who owned the mobile home. This issue was 

conclusively decided as part of the dissolution action between 
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JORDAN v. JORDAN

Cite as 26 Neb. App. 280

Kelly and Richard. Accordingly, the court did not err in concluding 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 conversion. Because we conclude that issue preclusion applies to 

Gary’s cause of action for conversion and that the court properly 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. 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.

Affirmed.