Vanderpool v. Loftness, 2012COA115 (July 5, 2012)

“Nonmutual offensive issue preclusion” (NOIP) sounds like the kind of issue that would come out of a fight at a college party. It did. This case clarifies the requirements for asserting a NOIP: the usual elements plus 4 more: 1) did the claimant “wait and see?” 2) was there a prior incentive to litigate the issue? 3) would it be inconsistent with another decision? and 4) are there procedural protections in place? This case also warns litigators about timeliness and foresight – it’s important to bring a NOIP claim to court ASAP. In the trial court, Plaintiff lost his negligence and battery claims although defendant pled guilty in a criminal case. But he lost his appeal by waiving claims, not preserving issues for appeal, and inviting error.



Filed under Appellate Review Challenged

2 responses to “Vanderpool v. Loftness, 2012COA115 (July 5, 2012)

  1. As summarized in this case, the standard requirements for a successful claim preclusion claim are: 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 collateral estoppel (preclusion) is asserted has been a part 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 proceedings.

    Additionally there are two kinds of preclusion claims, offensive and defensive. As explained by the court, offensive claims are invoked by plaintiff who seek to bar a defendant from relitigating an issue that the plaintiff must prove. Defensive preclusion claims are brought by defendants to par a plaintiff from attempting to prove an issue that the plaintiff previously litigated and lost.


  2. As noted in other court of appeals cases, “[the] court uses the terms “claim preclusion” and “issue preclusion” rather than “res judicata” and “collateral estoppel.” Argus Real Estate, Inc. v. E-470 Pub. Highway Auth., 109 P.3d 604, 608 (Colo. 2005).


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