Richard K. Jordan, appellant,
LSF8 Master Participation Trust and Kelly R. Jordan, now known as Kelly R. Fairchild, appellees.
Issue Preclusion: Appeal and Error. The applicability of
issue preclusion is a question of law on which an appellate
court reaches a conclusion independent of the court below.
Summary Judgment. Summary judgment is proper when the
pleadings and evidence admitted at the hearing disclose no
genuine issue regarding any material fact or the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light
most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
Motions for New Trial: Time: Appeal and Error. A motion for
new trial following the entry of summary judgment is not a
proper motion and does not terminate the 30-day period to
file a notice of appeal under Neb. Rev. Stat. § 25-1912
Pleadings: Judgments: Time: Appeal and Error. A timely motion
to alter or amend a judgment under Neb. Rev. Stat. §
25-1329 (Reissue 2016) terminates the 30-day period to file a
notice of appeal under Neb. Rev. Stat. § 25-1912
Pleadings: Judgments. A postjudgment motion must be reviewed
based on the relief sought by the motion, not on its title.
Trial: Parties. The right to consolidate is dependent upon
application by the defendant.
Trial: Courts. The trial court has the inherent power to
consolidate for purposes of trial in order to expedite the
reception of evidence and eliminate the multiplicity of
hearings and trials.
Neb. 524] 9. Statutes. A statute should not be construed to
restrict or remove a common-law right unless the plain words
of the statute compel it.
Homesteads: Issue Preclusion: Estoppel. Issue preclusion and
judicial estoppel may supply the statutory requirements set
forth in Neb. Rev. Stat. § 40-104 (Reissue 2016) for
encumbrances of a homestead.
Evidence: Words and Phrases. A judicial admission is a formal
act done in the course of judicial proceedings which is a
substitute for evidence, thereby waiving or dispensing with
the production of evidence by conceding for the purpose of
litigation that the proposition of fact alleged by the
opponent is true.
Rules of Evidence. Statements in trial briefs should be
treated under the evidence rules the same as unsworn
statements made anywhere else.
There is no per se bar against the admission of briefs from
Rules of Evidence: Hearsay: Appeal and Error. A court's
decision to admit a statement as a nonhearsay statement
against interest under Neb. Rev. Stat. § 27-801(4)(b)
(Reissue 2016) is reviewed for an abuse of discretion.
Judgments: Words and Phrases. An abuse of discretion occurs
when a trial court's decision is based upon reasons that
are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence.
Issue Preclusion: Summary Judgment. Issue preclusion is a
question of law that may properly be raised on a motion for
Issue Preclusion: Judgments: Final Orders: Parties. Under
issue preclusion, when an issue of ultimate fact has been
determined by a final judgment, that issue cannot again be
litigated between the same parties in a future lawsuit.
Issue Preclusion. Issue preclusion applies where (1) an
identical issue was decided in a prior action, (2) the prior
action resulted in a final judgment on the merits, (3) the
party against whom the doctrine is to be applied was a party
or was in privity with a party to the prior action, and (4)
there was an opportunity to fully and fairly litigate the
issue in the prior action.
Issue Preclusion: Judgments. The first step in determining
whether issue preclusion applies is to decide whether there
is an identity of issues in the successive proceedings.
Issue Preclusion: Proof. The party relying on issue
preclusion in a present proceeding has the burden to show
that a particular issue was involved and necessarily
determined in a prior proceeding.
Actions: Judgments: Verdicts. In determining whether issues
in a prior and subsequent action are identical, the former
verdict and judgment are conclusive only as to the facts
directly in issue and do not extend to [300 Neb. 525] facts
which may be in controversy but which rest on evidence and
are merely collateral.
Issue Preclusion: Judgments: Evidence: Proof. The issue
preclusion test as to whether the former judgment is a bar
generally is whether the same evidence will sustain both the
present and the former action; where different proof is
required, a judgment in the former action is no bar to the
Issue Preclusion: Words and Phrases. For purposes of applying
the doctrine of issue preclusion, an issue is considered to
be the identical issue in the absence of a significant
Issue Preclusion: Parties: Proof. Issue preclusion does not
apply to a party who had a higher standard of proof in the
first action than the standard of proof in a later
Issue Preclusion: Due Process. Due process requires that the
rule of issue preclusion operate only against persons who
have had their day in court either as a party to a prior suit
or as a privy; and, where not so, that at least the presently
asserted interest was adequately represented in the prior
Issue Preclusion. A party cannot circumvent the doctrine of
issue preclusion simply by cherrypicking which facts and
theories to raise at the prior proceeding and which to
reserve for later.
from the District Court for Buffalo County: William T.
Wright, Judge. Affirmed as modified.
A. Schroeder, of Ross, Schroeder & George, L.L.C., for
D. Stalnaker and Robert J. Becker, of Stalnaker, Becker &
Buresh, P.C., for appellee LSF8 Master Participation Trust.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Schreiner, District Judge.
NATURE OF CASE
plaintiff appeals from an order of summary judgment in a
quiet title action seeking to invalidate a mortgage lien on
the ground that it was an improper encumbrance of the
homestead under Neb. Rev. Stat. § 40-104 (Reissue 2016),
because his [300 Neb. 526] signatures on the deed of trust
were forged. In a prior order of dissolution and property
division, the court allocated to the plaintiff the marital
home and its accompanying refinancing mortgage debt, after
concluding that it was "unlikely [the plaintiff] was
unfamiliar" with the debt. The plaintiff's attorney
asserted in trial briefs to the dissolution court that even
if the signatures on pertinent documents were forgeries, the
"propriety" of the mortgage lien would not be in
court in the quiet title action determined as a matter of law
that the plaintiff was barred from challenging the validity
of the mortgage lien by the doctrines of issue preclusion and
judicial estoppel. The plaintiff argues on appeal that such
equitable doctrines do not apply to encumbrances that are
invalid under § 40-104 and that in any event, the court
erred in concluding there was no genuine issue that all the
elements of those doctrines were satisfied. The plaintiff
also asserts that the trial court erred in admitting into
evidence the trial briefs from the dissolution proceedings
and in failing to join the action with another quiet title
action he had filed against his ex-wife regarding the same
property. We affirm.
K. Jordan and Kelly R. Jordan, now Kelly R. Fairchild, were
married in 1985. They purchased real property in 1995, which
included land and a new manufactured home where they lived
during their marriage (the real estate). The parties do not
dispute that this was their homestead as defined by Nebraska
statutes, at least up to the $60, 000 value and land
limitations described in Neb. Rev. Stat. § 40-101
and Kelly purchased the manufactured home for approximately
$100, 000 by way of an installment contract and security
agreement, giving the lender a security interest in the home
until all payments had been made. Richard and Kelly made
payments on the installment contract until Kelly entered into
a fixed-rate refinancing loan with Ameriquest Mortgage
Company in the amount of $68, 250.
Neb. 527] The proceeds of that loan were used to satisfy the
outstanding debt of Richard and Kelly on the installment
contract in the amount of $50, 875.55. The remainder of the
loan was used to pay off other debts owed by Richard and
refinancing mortgage was secured with a deed of trust dated
February 11, 2004, in favor of Ameriquest Mortgage Company.
The deed was recorded in the office of the register of deeds
on April 26.
was designated in the deed as the only borrower, and she was
the only party to initial the various pages and sign the
original signature page. Attached to the deed of trust was an
acknowledgment signed by Kelly before a notary public in
Council Bluffs, Pottawatomie County, Iowa, on February 11,
both Richard's and Kelly's apparent signatures appear
on another signature page attached to Kelly's
acknowledgment. In fact, Richard's apparent signature
appears twice. Next to one of Richard's apparent
signatures is the notation, "original signature,"
which notation appears to be made by the registrar of deeds.
following page of the trust deed contains a notarized
statement by Rhonda Nichols, a notary in Buffalo County, that
Richard had acknowledged the trust deed instrument before her
in Buffalo County on February 29, 2004. Nichols signed and
stamped the acknowledgment again on March 19.
first page of the deed of trust is a registrar's note
stating, "Borrower does not show Richard Jordan but a
signature [illegible] notarized/requested to record as
presented." The deed of trust was assigned in 2014 to
LSF8 Master Participation Trust (LSF8).
Dissolution The marriage of Richard and Kelly was dissolved
in 2013. A trial had been held to determine the division of
property and debts. In its dissolution decree, the court
found that Richard and Kelly had more debts than assets, in
part due to income [300 Neb. 528] tax liability for unfiled
tax returns and a judgment against them in a lawsuit.
decree set forth that the real estate was encumbered by a
mortgage deed of trust in the amount of $65, 300. The court
recognized that only Kelly's name was on the debt and
mortgage instruments and that a quitclaim deed, dated
February 29, 2004, "purportedly from Richard to Kelly .
. . allowed Kelly to obtain this apparent refinancing."
The court acknowledged that Richard denied that this
quitclaim deed contained his real signature.
court did not specifically discuss in the decree whether
Richard denied that his purported signatures on the debt and
mortgage instruments were his. Instead, the court concluded:
"The debt however was incurred in February 2004, was
recorded in 2004, and it's highly unlikely that Richard
was unfamiliar with it."
court found that the mortgage lien, a judgment lien, and an
Internal Revenue Service lien consumed all the equity in the
real estate. But the court awarded the real estate to Richard
because vehicles and equipment previously used in
Richard's trucking business were stored on the land;
therefore, Richard would have more use for the property. The
court stated that awarding the real estate to Richard
"is more realistic as long as it's accompanied by
all associated debt."
court thus awarded the real estate to Richard, explicitly
subject to the mortgage lien, the judgment lien, and any tax
lien present or future. The court also quieted title of the
real estate in Richard and terminated any right, title, or
interest Kelly might have in the real estate. Ultimately, the
court's allocation of debt resulted in a mere $1, 477.84
difference between the parties, and the court found that an
equalizing judgment would not be appropriate.
Quiet Title Action After the time for appealing the
dissolution decree had passed without an appeal by either
party, Richard brought, in the same court, a quiet title
action against LSF8 and Kelly. [300 Neb. 529] Richard
described the action as one in which he sought "to quiet
title to real estate ... by setting aside a deed of
trust." Specifically, Richard asked the court to quiet
title in his name without any encumbrances by LSF8.
alleged that Kelly was the former owner of the property. At
the same time, he alleged that his apparent signature on a
quitclaim deed filed April 26, 2004, and purporting to
transfer title from Richard to Kelly was forged.
LSF8, Richard alleged that his apparent signature on a deed
of trust filed April 26, 2004, was a forgery. Richard
recognized that this signature was "allegedly notarized
by [the notary] on February 29, 2004." He did not
specifically allege in his complaint that he had not, in
fact, acknowledged the trust deed in front of the notary on
February 29. Richard did not make any reference in his
complaint to the Nebraska homestead statutes, Neb. Rev. Stat.
§§ 40-101 to 40-116 (Reissue 2016).
denied Richard's allegation that his signature was a
forgery. LSF8 alleged affirmative defenses of waiver,
estoppel, unclean hands, laches, unjust enrichment,
acquiescence and acceptance, and ratification.
brought a counterclaim for declaratory judgment that the LSF8
deed of trust constitutes a valid, first, and prior lien
against the property. In the alternative, LSF8 counterclaimed
for equitable subrogation or an equitable lien, giving it
priority over any other encumbrance on the property.
record indicates that there was a separate, pending quiet
title action by Richard against Kelly. In that action,
Richard asserted that Kelly was claiming title to the
property, adversely to Richard, by virtue of an alleged quiet
title deed containing Richard's forged signature.
However, the record does not contain the complaint in the
status hearing for both actions, the court stated that it was
considering whether to try the two actions together, but
noted concern as to whether the two actions involved [300
Neb. 530] different standards of proof. In its order on
status hearing, the court acknowledged that the parties
advised that both actions involved the same real estate and
common parties and could be tried together. But the record
does not contain a motion by either party to join the
actions, or an order joining the actions.
Motion for Summary Judgment
9, 2017, LSF8 moved for summary judgment against Richard in
his quiet title action and in favor of LSF8 in its
counterclaim that its deed of trust is a first and priority
encumbrance upon the real estate or, in the alternative, that
LSF8 was entitled to a similar equitable lien on the real
time of the summary judgment hearing, it was clear that
Richard was claiming his forged signature and lack of proper
acknowledgments rendered the deed of trust void under the
homestead statutes. LSF8 responded that the court need not
determine the disputed factual questions of whether the deed
of trust contained valid signatures and acknowledgments
because the undisputed facts demonstrated that under several
equitable doctrines, Richard was estopped from asserting such
Trial Briefs From Dissolution Proceedings
summary judgment hearing, LSF8 offered into evidence
certified copies of Richard's trial brief and rebuttal
brief filed in the dissolution proceedings. The attorney who
wrote the briefs was the ...