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Buckhannon v. U.S. West Communications Inc.3/21/1996
a final judgment on the merits; and (4) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. However, U.S. West's enumeration of the elements for issue preclusion is incomplete. In Moffat County School District, supra, 732 P.2d at 619, the supreme court held that for relitigation of an issue to be barred, the issue precluded must be "identical to an issue actually litigated and necessarily adjudicated in the prior proceeding." (emphasis added)
Furthermore, relying on the Restatement (Second) of Judgments ยง 27 comment h (1982), the supreme court held in Maryland Casualty Co. v. Messina, 874 P.2d 1058, 1062 (Colo. 1994), that "if issues are determined but the judgment is not dependent upon the determinations, relitigation of those issues in a subsequent action between the parties is not precluded. Such determinations have the characteristics of dicta . . . ."
Here, in order to reach a decision on U.S. West's sanctions claims against Buckhannon, the arbitrator was not required to determine whether U.S. West acted in bad faith in asserting those claims. The only necessary determination made by the arbitrator was that Buckhannon's earlier tort claims had not been substantially frivolous, groundless, or vexatious. Hence, any other determinations that the arbitrator made in the proceeding have the effect of dicta and, therefore, are not issue preclusive.
U.S. West further argues, however, that the original scope of the arbitration was expanded to include the bad faith issue, alleging that Buckhannon inserted it into the proceedings as part of his defense to the sanctions claim. We disagree.
It is true, as U.S. West urges, that parties may agree to expand an original arbitration proceeding. Leahy v. Guaranty National Insurance Co., 907 P.2d 697 (Colo. App. 1995) (parties may agree to submit to arbitration other matters in dispute between them). Contrary to the company's assertion that Leahy is dispositive, we find it distinguishable from this case case and reach a different result.
First, only one issue was submitted for arbitration: what liability, if any, did Buckhannon have for sanctions pursuant to C.R.S. 13-17-101 and Rule 11, C.R.C.P. in connection with Buckhannon's tort suit against U.S. West. Neither party submitted for arbitration the additional issue of whether U.S. West's sanctions claims were made in bad faith.
Second, there is no evidence in the record indicating that the parties agreed to expand the scope of the arbitration by submitting this issue for resolution. U.S. West contends that Buckhannon raised the issue by "repeatedly interjecting the alleged bad faith of U.S. West into the arbitration proceeding through argument and the testimony of his own witnesses." The only specific statement in the record which alleges U.S. West bad faith in seeking sanctions against Buckhannon appears in counsel's opening statement:
But for trying to vindictively pound some guy into the dirt because they got whipped by him once, we wouldn't be here Buckhannon wouldn't need to have all these cases and wouldn't need to be spending money that he doesn't have anymore.
At no time did either party request that the arbitrator address the issue of whether U.S. West's sanctions claims were asserted in bad faith. Furthermore, no witnesses gave testimony on the issue. Although perhaps a reflection of buckhannon's attitude toward U.S. West, in our view these statements do not suffice to expand the issues to be determined by the arbitrator.
We also
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