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Under Nebraska law, there are four requirements for the
doctrine of collateral estoppel to apply: (1) The identical
issue must have been decided in a prior action, (2) a final
judgment must have been rendered on the merits, (3) the party
against whom the rule is applied must have been a party or in
privity with a party to the prior action, and (4) there must have
been an opportunity to litigate the issue fully and fairly in the
prior action. See Stewart v. Hechtman, 581 N.W.2d 416, 418-419
(Neb. 1998); Cunningham v. Prime Mover, Inc., 567 N.W.2d 178, 181
(Neb. 1997).
With respect to the third requirement, there is no dispute
that HJA was a party to the State litigation. See Cunningham v.
Prime Mover, Inc., supra at 181 (as to status of parties, only
requirement is that party against whom rule is being applied was
party or in privity with party to prior action). There is
considerable disagreement, however, regarding the remaining
requirements.
In order for collateral estoppel to apply under Nebraska
law, the identical issue must have been litigated in the prior
action. An issue is considered “identical” in the absence of a
significant factual change. See Stewart v. Hechtman, supra at
419. Henry’s liability under the FirsTier note was not an issue
in the State litigation. The only issues raised in that
litigation related to the enforceability, breach, and validity of
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