Billingsley v. BFM Liquor Management6/14/2002
pply, the potential application is restricted to subsequent lawsuits. See, e.g., City of Kearney v. Johnson, 222 Neb. 541, 385 N.W.2d 427 (1986); Hickman, supra. However, it is essential that there be a prior action to invoke application of these doctrines in the subsequent case. See In re Application of City of Lincoln, 243 Neb. 458, 500 N.W.2d 183 (1993) (stating that for application of res judicata and collateral estoppel, successive lawsuits are required). See, also, Wicker v. Vogel, 246 Neb. 601, 603, 521 N.W.2d 907, 909 (1994) (stating that res judicata is inapplicable when parties are "involved in but one action"); State ex rel. Douglas v. Morrow, 216 Neb. 317, 320, 343 N.W.2d 903, 905 (1984) (collateral estoppel may apply to pending action so long as identical issue was decided in "prior action"). As to res judicata, it is required that there must have been a decision on the merits in the prior action. See Gruber v. Gruber, 261 Neb. 914, 626 N.W.2d 582 (2001) (stating that because court's decision that it lacked jurisdiction to enter order was not resolution on merits of claim, res judicata did not apply).
The doctrines of res judicata and collateral estoppel bar the relitigation of certain issues in a subsequent lawsuit. In the instant case, there has been no former lawsuit reaching final judgment as to the statutory age discrimination and wage payment issues tried pursuant to the fifth amended petition. Because there is no prior action, neither res judicata nor collateral estoppel is applicable to this case in the manner proposed by defendants. See, Wicker v. Vogel, supra; In re Application of City of Lincoln, supra.
We conclude that Billingsley was not precluded by the doctrines of res judicata and collateral estoppel from amending his petition to add his statutory causes of action. Accordingly, there is no merit to this assignment of error.
(b) Defendants Are Common Enterprise for Purposes of "Employer" Under § 48-1002
For their next assignment of error, defendants assert that the district court erred when it determined, as a matter of law, that BFM and BCI were a "common enterprise" which shared employees and employed over 25 people, thus subjecting both BFM and BCI to the age discrimination act. Defendants focus on the fact that in 1993 and 1994, BCI had fewer than 25 employees on its payroll and, standing alone, was not an "employer" within the meaning of § 48-1002. Billingsley worked for BFM and BCI, and the record shows that, as a matter of law, BFM and BCI were a "common enterprise." Therefore, both defendants were subject to the age discrimination act and there is no merit to this assignment of error.
The issue raised in this assignment of error presents the question of statutory interpretation of whether the employees of technically separate entities may be combined for the purpose of meeting the statutory definition of an "employer" under § 48-1002. Statutory interpretation presents a question of law. Douglas Cty. Bd. of Comrs. v. Civil Serv. Comm., 263 Neb. 544, 641 N.W.2d 55 (2002). On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).
Under the age discrimination act, it is an unlawful employment practice for an employer " o refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to his terms, conditions, or privileges of employment, otherwise lawful, because of such individual's age, when the reasonable demands of the position do not require such an age distinction." § 48-1004(1)(a). The prohibitions under the age discrimination act are "limit
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