noting that for purposes of summary judgment, "the nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts must be resolved against the moving party"
How later courts described this case
- noting that for purposes of summary judgment, "the nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts, and all doubts must be resolved against the moving party"
- stating that when an issue is properly raised, submitted for determination, and determined, “the issue is actually litigated”
- “issues that were actually litigated and decided, but were not necessary to the final outcome of the case, are not subject to collateral estoppel in a future case”
- "Additionally, as in Cox, Bebo was not prejudiced by the late assertion of the affirmative defense."
Written by the judges who cited it.
The opinion
JUSTICE SCOTT,
concurring:
I join in the judgment of the majority and most of what is set forth in the majority opinion. However, I write separately to indicate that I would not go as far as the majority does in addressing matters not necessary to the result we both reach — a conclusion that “the doctrine of collateral estoppel is not available to bar litigation of BRW’s misconduct in Bebo’s negligence action against BRW.” Maj. op. at 88. In my view, this result is reached once we determine that the issue of BRW’s misconduct was not “actually litigated and necessarily adjudicated.” Therefore, I do not reach the question of whether there was “a full and fair opportunity to litigate the issue” — principally because BRW’s misconduct was not actually litigated.
I.
I agree with the majority that collateral estoppel bars relitigation of an issue when four elements exist to preclude relitigation of settled issues. Those four elements are:
(1) The issue precluded is identical to an issue actually litigated and necessarily adjudicated in the prior proceeding; (2) The party against whom estoppel was sought *89 was a party to or was in privity with a party to the prior proceeding; (3) There was a final judgment on the merits in the prior proceeding; [and](4) The party against whom the doctrine is asserted had a full and fair opportunity to litigate the issues in the prior proceeding.
Maj. op. at 85 (citing Michaelson v. Michaelson, 884 P.2d 695, 700-01 (Colo.1994)). I also agree that in the case before us “the issue of BRW’s misconduct was never pled ... nor addressed by the administrative law judge, and no final determination was made regarding BRW’s misconduct.” Maj. op. at 87. Therefore, as does the majority, I conclude, “[tjhat issue ... was neither actually litigated nor actually determined.” Maj. op. at 87.
However, because all four elements must be met and finding that the first is not present, unlike the majority, I conclude we need not address the fourth element. In reaching the fourth element, the majority discusses whether “Bebo had a full and fair opportunity to litigate the issue of BRW’s negligence in the prior proceeding,” maj. op. at 87, and concludes that Bebo did not. See id. at 88. I neither agree nor disagree with this determination because I do not join in the majority’s decision to address this issue to decide this case. Presumably, the majority reaches the fourth element because it is somewhat related to the first. However, in my view, the two are only related when the first element is met (the issue is actually litigated), which is not the case here. As in Michaelson , our determination that “collateral estoppel does not preclude [newly asserted] claims because the issue was neither litigated nor necessarily adjudicated,” Michaelson, 884 P.2d at 703 , is all that is required to support our holding here — nothing-more. 6
The cases relied upon by the majority only proceed to the fourth element because, unlike the case here, the first element was satisfied. See Bennett College v. United Bank of Denver, Nat’l Ass’n, 799 P.2d 364 (Colo.1990); State Farm Mut. Auto. Ins. Co. v. Tygart, 971 P.2d 253 (Colo.App.1998). Thus, the steps the majority takes today to answer a question not necessary for the judgment and, in effect, providing dicta that may lead to unintended consequences takes us further than I am willing to go. See Olney Springs Drainage Dist. v. Auckland, 83 Colo. 510, 517 , 267 P. 605, 608 (1928) (as a general rule, the supreme court will not address issues not affecting the outcome or disposition of the case). The factors discussed in Bennett College are, to my understanding, well and good. However, in that case, unlike the case here, the “issue precluded [was] identical to an issue actually determined in the prior proceeding.” Bennett College, 799 P.2d at 367 . There, we resorted to the other factors, in particular element four, to resolve the legal question of collateral estoppel. Because I do not want to be bound by our analysis today in a case in the future where the issue is “actually litigated and necessarily adjudicated,” I do not, on this record today, go that far.
II.
Hence, while I join in the judgment of the court, I only join in the majority’s opinion to the extent that the majority addresses and discusses the first, and not the fourth, element of the factors necessary for a party to be collaterally estopped.
. I joined the Michaelson opinion, creating the majority in a divided court, because we resolved that case based solely on the first element and did not address the fourth element.