Vanderpool v. Loftness

Decision Date05 July 2012
Docket NumberCourt of Appeals No. 11CA1251
Citation2012 COA 115
PartiesAdam Robert Vanderpool, Plaintiff-Appellant, v. Jeremy Rhys Loftness, Defendant-Appellee.
CourtColorado Court of Appeals

Arapahoe County District Court No. 09CV1855

Honorable Charles M. Pratt, Judge


Division I

Opinion by JUDGE J. JONES

Taubman and Russel, JJ., concur

Sixta & Associates, P.C., Terry W. Vanderpool, Friendswood, Texas; Blattner Law Firm, LLC, Lisa Theresa Carotenuto Blattner, Colorado Springs, Colorado, for Plaintiff-Appellant
Hillyard, Wahlberg, Kudla & Sloane, LLP, Stephen W. Wahlberg, Denver, Colorado, for Defendant-Appellee

¶ 1 Plaintiff, Adam Robert Vanderpool, appeals the district court's judgment on jury verdicts in favor of defendant, Jeremy Rhys Loftness, on Mr. Vanderpool's negligence and battery claims. We affirm.

I. Background

¶ 2 Mr. Vanderpool and Mr. Loftness, both students at Colorado State University, had a physical altercation near campus after attending a party. Mr. Loftness hit Mr. Vanderpool, and claimed self-defense.

¶ 3 The Larimer County District Attorney charged Mr. Loftness with second degree assault. On September 8, 2009, Mr. Loftness pled guilty to added charges of attempted second degree assault, a felony, and third degree assault, a misdemeanor. His plea to the attempted second degree assault charge was subject to a stipulation for a deferred judgment. If he successfully fulfilled the conditions of that deferred judgment, in two years the guilty plea would be deemed withdrawn and the charge would be dismissed with prejudice. See § 18-1.3-102, C.R.S. 2011. His plea to the third degree assault charge, however, was not conditional.

¶ 4 Mr. Vanderpool filed this civil case against Mr. Loftness on August 19, 2009, asserting claims for negligence, assault, battery, and outrageous conduct. The case was tried to a jury over five days from March 11 to 17, 2011. Only two claims – negligence and battery – were submitted to the jury. The jury found in Mr. Loftness's favor on both claims.

¶ 5 Mr. Vanderpool appeals.

II. Discussion

¶ 6 Mr. Vanderpool contends that the district court erred by: (1) denying his motion for a directed verdict on the battery claim; (2) allowing one of Mr. Loftness's medical expert witnesses to testify; (3) improperly instructing the jury on the elements of the battery claim; and (4) denying his motion for judgment notwithstanding the verdict on the battery claim. He also contends that the jury's verdict on the battery claim was clearly erroneous. We address and reject each of these contentions in turn.

A. Directed Verdict -- Issue Preclusion

¶ 7 On the second day of trial, toward the end of Mr. Loftness's testimony, Mr. Vanderpool's attorney moved for a directed verdict on the battery claim based on the fact that Mr. Loftness had pled guilty to attempted second degree assault and third degree assault in the criminal case.1 Counsel argued that the doctrine of issue preclusion barred Mr. Loftness from denying that he had committed battery on Mr. Vanderpool and from claiming self-defense. The court deferred ruling on the motion until Mr. Vanderpool had rested his case.

¶ 8 The court ultimately denied the motion, for several reasons. First, the court determined that the elements of the attempted second degree assault charge did not match those of the battery claim (primarily because that charge was for an attempted, rather than a completed, assault). Second, the court ruled that a deferred judgment is not a final judgment for issue preclusion purposes. Third, the court determined that Mr. Loftness had little incentive to contest the charges once the favorable terms of the pleas were conveyed. And fourth, the court ruled that Mr. Vanderpool had waived the right to assert issue preclusion because he had not raised it until the second day of trial.2

¶ 9 Though Mr. Vanderpool challenges each of the reasons given by the district court, we conclude that one of those reasons – waiver – is dispositive.

1. Issue Preclusion and Waiver

¶ 10 The doctrine of issue preclusion, often referred to as collateral estoppel, bars relitigation of issues necessary to the outcome of a prior action. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.5 (1979); Pomeroy v. Waitkus, 183 Colo. 344, 350, 517 P.2d 396, 399 (1973); see McLane Western, Inc. v. Dep't of Revenue, 199 P.3d 752, 756-57 (Colo. App. 2008).3

¶ 11 Issue preclusion "is designed to ‘relieve parties of multiple lawsuits, conserve judicial resources, and promote reliance on the judicial system by preventing inconsistent decisions.'" Reynolds v. Cotten, 2012 CO 27, ¶ 9 (quoting in part In re Tonko, 154 P.3d 397, 405 (Colo. 2007)); see Parklane Hosiery, 439 U.S. at 326 ("Collateral estoppel . . . has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation."). It may be invoked defensively or offensively. Issue preclusion is invoked defensively when a defendant seeks to apply it to bar a plaintiff from attempting to prove an issue that the plaintiff previously litigated and lost against the defendant or another party. It is invoked offensively when a plaintiff seeks to apply it to bar a defendant from relitigating an issue that the plaintiff must prove and which the defendant previously litigated unsuccessfully against the plaintiff or another party. See Parklane Hosiery, 439 U.S. at 326 n.4.

¶ 12 This case involves offensive issue preclusion. And because Mr. Vanderpool was not a party to the criminal case, this case involves "nonmutual" offensive issue preclusion. See id. at 326-28; Central Bank Denver v. Mehaffy, Rider, Windholz & Wilson, 940 P.2d 1097, 1102 (Colo. App. 1997).

¶ 13 In any case in which issue preclusion is invoked, the proponent of the doctrine must show that $$(1) the issue sought to be precluded is identical to an issue actually and necessarily determined in the prior proceeding; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is 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 issue in the prior proceeding. Reynolds, 2012 CO 27, ¶ 9; accord Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001); Allen v. Martin, 203 P.3d 546, 560 (Colo. App. 2008); see also Bebo Constr. Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 85 (Colo. 1999) (the party asserting issue preclusion has the burden of establishing each element); Allen, 203 P.3d at 560 (same).

¶ 14 When the applicability of nonmutual offensive issue preclusion is in question, other considerations come into play. In Parklane Hosiery, the Court recognized that application of nonmutual offensive issue preclusion "does not promote judicial economy in the same manner as defensive use does," and presents a unique potential for unfairness toward the party sought to be estopped. Parklane Hosiery, 439 U.S. at 329-31. Thus, a court deciding whether to apply nonmutual offensive issue preclusion must consider, in addition to the four foundational requirements noted above, whether the party seeking to assert preclusion could have joined the first action, but instead took a "wait and see" approach; the extent to which the party sought to be estopped had incentive to litigate vigorously the prior case; whether the decision sought to be relied on is inconsistent with another decision involving the party sought to be estopped; and whether the second case affords the party sought to be estopped procedural protections that were unavailable in the first case. Id.; see also Bassett v. State Bd. of Dental Examiners, 727 P.2d 864, 866 (Colo. App. 1986).

¶ 15 A party entitled to assert issue preclusion may waive it. Harvey v. United Transp. Union, 878 F.2d 1235, 1243 (10th Cir. 1989) (offensive issue preclusion); North Pacifica, LLC v. City of Pacifica, 366 F. Supp. 2d 927, 929-30 (N.D. Cal. 2005) (defensive issue preclusion); Fischer v. City of Sioux City, 654 N.W.2d 544, 548-49 (Iowa 2002) (offensive issue preclusion); see generally 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure§ 4405, at 83-84 (2d ed. 2002). With respect to defensive issue preclusion, this is recognized by C.R.C.P. 8(c), which lists res judicata and estoppel among those affirmative defenses that must be raised in a responsive pleading. See Taylor v. Sturgell, 553 U.S. 880, 907 (2008) (applying Fed. R. Civ. P. 8(c)); Blonder-Tongue Laboratories, Inc. v. Univ. of Illinois Foundation, 402 U.S. 313, 350 (1971) (same); see also Vincent v. Clean Water Action Project, 939 P.2d 469, 472 (Colo. App. 1997) (res judicata is waived if not appropriately raised); Davignon v. Clemmey, 322 F.3d 1, 15 (1st Cir. 2003) (defensive issue preclusion is subject to Fed. R. Civ. P. 8(c)); see generally 18 Federal Practice and Procedure § 4405, at 93.

¶ 16 Offensive issue preclusion is not an affirmative defense. Nonetheless, "it is difficult to understand why plaintiffs should not be required to plead preclusion as clearly as defendants – the need for notice and an opportunity to respond seems the same." 18 Federal Practice and Procedure§ 4405, at 109. Therefore, courts have held that a party waives offensive issue preclusion unless he raises it timely. See, e.g., Harvey, 878 F.2d at 1243-44 (the plaintiffs waived issue preclusion where they raised it after trial but before the trial court issued its decision); Fischer, 654 N.W.2d at 546, 548-49 (issue preclusion waived where the plaintiff did not raise it until two months before trial); Julien v. City of Sherman, 1997 WL 714870, *1, 3 (Tex. App. No. 05-96-00013-CV, Nov. 18, 1997) (having litigated the previously decided issue, the plaintiff waived issue preclusion). Because the function of issue preclusion is to avoid...

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