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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 

Nebraska Supreme Court Online Library

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

04/20/2021 08:07 AM CDT
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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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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 thirdparty 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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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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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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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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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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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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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 rationale 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.