Whether issue preclusion applies to an undisputed set of facts is a question of law which this court reviews de novo , without deference to the circuit court. This case also presents a question of statutory interpretation, which we review de novo . Tri-County Trails asserts issue preclusion is not applicable. Issue preclusion requires the actual litigation of an issue which is necessary to the outcome of the first action. The burden of establishing that issue preclusion should be applied in any given instance is on the party seeking its benefits.
Issue preclusion employs a flexible analysis based on fundamental fairness.
We note that prior to dismissing the first action, the circuit court did discuss the obligation to fence. Therefore, the issue of a fencing obligation does not meet a threshold criterion necessary to begin an analysis of whether issue preclusion may be applied. Based on what previously occurred in the circuit court and in this court, we conclude that issue preclusion does not bar Tri-County Trails from appealing the statutory interpretation of the circuit court. When we are asked to apply a statute whose meaning is in dispute, our efforts are directed at determining legislative intent. In attempting to determine the intent of the legislature, we begin with the plain meaning of the language used in the statute.