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Billingsley v. BFM Liquor Management6/14/2002
August 1, 1995, when the district court dismissed Billingsley's common-law causes of action for wrongful termination, breach of contract, and tortious interference from his third amended petition without leave to amend such claims, Billingsley's statutory claims for age discrimination and unpaid wages subsequently pled in his fifth amended petition were subsumed within that dismissal and that their assertion was barred by res judicata and collateral estoppel. Because, as detailed below, res judicata and collateral estoppel are limited in their application to subsequent actions, defendants' reliance on these doctrines within the course of the same action is misplaced.
In connection with this assignment of error, defendants contend that when the dismissal order was not vacated by the district court, Billingsley was precluded from subsequently amending his petition to add his statutory claims. In this regard, defendants note that before a district court can enter orders directing the course of a previously dismissed case, it must vacate the dismissal and reinstate the case. See Murray Constr. Servs. v. Meco-Henne Contracting, 10 Neb. App. 316, 633 N.W.2d 915 (2001). Defendants' reliance on Murray Constr. Servs. is misplaced. The instant appeal involves but one case which was not previously dismissed. Furthermore, the August 1, 1995, dismissal order was limited to three common-law causes of action pled in the third amended petition, which causes of action were not amended by either the fourth or fifth amended petitions. The fourth amended petition raised statutory causes of action in the pending action for the first time.
In connection with defendants' argument based on res judicata and collateral estoppel, we note that in its August 1, 1995, order, the district court dismissed from Billingsley's third amended petition the three common-law causes of action of wrongful termination, breach of contract, and tortious interference, without leave to amend. The parties agree that the order of August 1 was not vacated. When Billingsley sought and was granted leave to file his fourth amended petition, the petition did not replead the dismissed common-law causes of action, but, rather, added three completely new statutory causes of action: one for age discrimination under §§ 48-1001 to 48-1010 and two for wage payment under §§ 48-1228 to 48-1232. The fifth amended petition repeated the causes of action alleged in the fourth amended petition. Thus, although the common-law wrongful termination, breach of contract, and tortious interference causes of action were dismissed without leave to replead, the district court's order of dismissal did not encompass causes of action subsequently asserted in the same case under statutory provisions involving age discrimination and unpaid wages.
[6,7] Res judicata refers to claim preclusion, while collateral estoppel refers to issue preclusion, two different concepts, although the two terms are often used together. Hickman v. Southwest Dairy Suppliers, Inc., 194 Neb. 17, 230 N.W.2d 99 (1975). We have stated that under res judicata, "a final judgment on the merits is conclusive upon the parties in any later litigation involving the same cause of action." Woodward v. Andersen, 261 Neb. 980, 987, 627 N.W.2d 742, 749 (2001). Under collateral estoppel, when an issue has been determined by a final judgment, that issue cannot again be litigated between the same parties in a "future lawsuit." Id. at 987-88, 627 N.W.2d at 749.
[8,9] We take this opportunity to state that although it was apparent from the discussion of the facts of our previous opinions, we have not always explicitly referred to the requirement that for res judicata and collateral estoppel to a
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