The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
______________________________________________
LEZLEY M. JOHNSON,
Vs.
Plaintiff-Appellant,
FILED
Shelby Circuit No. 55658
C.A. No. W1998-00549-COA-R3-CV
December 15, 1999
KENNETH R. DOWNING,
Cecil Crowson, Jr.
Defendant-Appellee. Appellate Court Clerk
____________________________________________________________________________
FROM THE SHELBY COUNTY CIRCUIT COURT
THE HONORABLE JOHN R. MCCARROLL, JUDGE
John R. Johnson, III of Memphis
Carlton Barnes of Memphis
For Appellant
R. Layne Holley;
McNabb, Holley, Waldrop & Bragorgos, PLLC of Memphis
for Appellee
REVERSED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This is a personal injury case. Plaintiff, Lezley M. Johnson, a Memphis police officer,
appeals from the order of the trial court granting defendant, Kenneth R. Downing’s motion for
summary judgment.
On September 12, 1992, at the intersection of Winchester and Lamar in Memphis, Shelby
County, Tennessee, plaintiff-appellant, Lezley M. Johnson, a Memphis police officer, was
involved in an automobile accident with the vehicle driven by defendant-appellee, Kenneth R.
Downing. The collision occurred when Downing attempted to make a left hand turn from
Winchester on to Lamar and drove his vehicle in front of Johnson’s vehicle. Johnson contends
that she had a green light, and Downing contends that he had a green arrow.
Johnson’s complaint alleges permanent injury to her right leg, including a severe fracture
of the right ankle, loss of income, loss of earning capacity, and permanent disability.
Downing and his wife filed a separate action in the Circuit Court of Shelby County
against Johnson and the City of Memphis under the Governmental Tort Liability Act. T.C.A.
§ 29-20-101 - T.C.A. § 29-20-407 (1980 and Supp. 1998). Johnson was dismissed as immune.
Johnson was not represented by her current counsel in that action, but was called to testify by
an Assistant City Attorney representing the City of Memphis. Judgment was rendered in favor
of the plaintiffs in that case. The trial judge found Downing to be guilty of ten (10%) percent
of the negligence and Johnson to be guilty of ninety (90%) percent of the negligence in causing
the accident. Although the city appealed that case, it is now a final judgment.
In the instant case, Downing filed a motion for summary judgment based on the doctrine
of collateral estoppel. The trial court granted Downing’s motion, finding that the prior judgment
in Downing v. City of Memphis, is res judicata as to Johnson’s claim against Downing. The
order provides in pertinent part:
From all of which it appears to the Court that a prior
judgment granted in the case of Kenneth Downing v. City of
Memphis, which involved the same automobile collision at issue
herein and involved testimony concerning the actions of the same
individuals who are parties in this case. That judgment
determined that Lezley Johnson, a City of Memphis police
officer, was guilty of more than fifty percent (50%) of the fault
which caused the automobile collision. The Court is of the
opinion that such judgment is res judicata as to the claim of
Lezley Johnson against Kenneth Downing in this case.
The court further finds that the provisions of the
Governmental Tort Liability Act, which were applicable to the
case of Downing v. City of Memphis, did require a separate
bench trial for the governmental entity; and the court further finds
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from statement of counsel for the parties that the City of
Memphis would not consent to trying both of these cases in one
proceeding before one judge and one jury.
The issue on appeal is whether the previous decision of the Circuit Court of Shelby
County, sitting without a jury as required by the GTLA, T.C.A. § 29-20-307 (1980), precludes
the plaintiff from litigating her case against the defendant.
Summary judgment should be granted when the movant demonstrates that there are no
genuine issues of material fact and that the moving party is entitled to a judgment as a matter of
law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate
view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor
of that party, and discard all countervailing evidence. There is no dispute of material facts as to
the issue presented for review. Since only questions of law are involved, there is no presumption
of correctness regarding a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622.
Therefore, our review of the trial court’s grant of summary judgment is de novo on the record
before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).
Johnson contends that the doctrines of inconsistent verdict, collateral estoppel and res
judicata do not apply in the instant case.1 Johnson asserts that the parties in this case are not
identical to the parties in Downing v. City of Memphis. In that suit Johnson was sued along with
the City of Memphis by Downing, but was dismissed as immune. Johnson argues that she is not
in privity of estate or of contract with the defendant, the City of Memphis, as she is not an
executor, administrator, donor or donee, lessor or lessee.2
1
While Downing v. City of Memphis was on appeal, Downing filed a motion to
stay proceedings grounded in the theory of “inconsistent verdict”; his motion for summary
judgment utilized an argument based on “collateral estoppel”; and the summary judgment was
granted on grounds of “res judicata”.
2
Appellant cites Cotton v. Underwood, 442 S.W.2d 632 n.1 (Tenn. 1969) defining
“privies” in the context of collateral estoppel as:
[p]ersons who are partakers or have an interest in any action or
thing, or any relation to another. Wood, Inst. b. 2, c. 3, p. 255;
Co. Litt. 271a. There are several kinds of privies: namely, privies
in blood, as the heir is to the ancestor; privies in representation,
as is the executor or administrator to the deceased; privies in
estate, as the relation between the donor and donee, lessor and
lessee; privies in respect to contracts; and privies on account of
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Johnson further asserts that her rights and those of the City of Memphis are not the same.
The rights of the City of Memphis, as a governmental entity, include the right to a bench trial.
Johnson is entitled to a trial by jury, a right secured by the Tennessee Constitution3, which she
demanded and has never waived.
In summary, Johnson argues that the prior decision by the a trial Judge, hearing only the
facts of the prior case pertaining to liability of the City of Memphis, should not bar her from
having her day in court.
Downing contends that Johnson’s status as a city employee was dispositive of Downing’s
claim against her in the prior action and that her status of city employee, remains with her in this
action. Downing contends that since Johnson was found immune and dismissed from the suit
in which her employer was held liable based on a finding of her negligence of more than fifty
(50%) percent, the issue of her fault is precluded from relitigation under Tennessee comparative
fault law. Downing argues that the trial court correctly granted his motion for summary
judgment, holding that the prior finding of Johnson’s fault “ is res judicata as to the claim of
Lezley Johnson against Kenneth Downing”.
The Tennessee Supreme Court stated in Cole v. Arnold, 545 S.W.2d 95, 97 (Tenn. 1977):
the doctrine of collateral estoppel, or estoppel by judgment, which
is an extension of the principle of Res judicata, is applicable only
where it affirmatively appears that the issue involved in the case
under consideration has already been litigated in a prior suit
between the same parties.
Collateral estoppel is asserted to prevent relitigation of identical issues that have been
necessarily determined in a prior action between the parties or their privies. Blue diamond Coal
Co. v. Holland-Am. Ins. Co., 671 S.W.2d 829, 832 (Tenn 1984). The doctrine may be invoked
even in cases where the cause of action is different from the prior cause of action, Dickerson v.
Godfrey, 825 S.W. 2d 692, 694 (Tenn. 1992), as long as the determination of the issue was
estate and contract together. Prest. Conv. 327. Privies have also
been divided into privies in fact and privies in law. 8 Co. 42b.
See Viner, Abr. Privity: 5 Com.Dig. 347; Hamm. Part. 131;
Woodf. Landl. & T. 279; 1 Dane, Abr. c. 1, art. 6. The latter
are created by the law casting land upon a person, as in escheat;
1 Greenl. Ev. § 189. Vol. 3 Bouv.Law Dict., Rawle’s Third
Revision, p. 2714.
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§. 6. Trial by Jury - Qualifications of jurors.- That the right of trial by jury
shall remain inviolate, and no religious or political tests shall ever be required as a qualification
for jurors. Tennessee Const. art.1 § 6.
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necessary to support the judgment. Shelley v. Gipson, 200 Tenn. 1, 400 S.W. 2d 709,714 (Tenn.
1966). The burden of proof lies on the party seeking to invoke the doctrine, Dickerson v.
Goodfrey, 825 S.W.2d 692, 695 (Tenn. 1995), and requires that the party successfully
demonstrate:
1. that the issue sought to be precluded is identical to the issue
decided in the earlier suit; 2. that the issue sought to be precluded
was actually litigated and decided on its merits in the earlier suit;
3. that the judgment in the earlier suit has become final; 4. that
the party against whom collateral estoppel is asserted was a party
or is in privity with a party to the earlier suit; and 5. that the party
against whom collateral estoppel is asserted had a full and fair
opportunity in the earlier suit to litigate the issue now sought to
be precluded.
Beaty v. McGraw, No. 01A01-9701-CV-00046 at *4, 1998 WL 855516 (Tenn. App. 1998)
(citations omitted).
We agree with the Appellee that the issue sought to be precluded here is the same issue
that was decided on the merits by the final order in the previous action. However, we find that
the fourth and fifth criteria enumerated by the Beaty court are not met. We find that the requisite
privity does not exist between the Appellant and her employer for the application of collateral
estoppel. We further find that Appellant did not receive a full and fair opportunity to represent
her interests in the issue that Downing seeks to preclude. Our reasoning set forth below is based
on the failure of the facts of the case at bar to meet the requirements for the application of
collateral estoppel. The roles of the parties, a lack of privity and a lack of shared interest
between the Appellant and her employer were decisive in reaching our conclusions.
The Tennessee Supreme Court affirmed the general rule set forth by the Court of
Appeals of Tennessee, Eastern Section, in Booth v. Kirk, 381 S.W.2d 312 (Tenn. App. 1964),
concerning the application of the doctrine of collateral estoppel to negligence actions stating:
judgment for a plaintiff is not conclusive, as to issues of
negligence or contributory negligence, in a subsequent action
growing out of the same accident by a different plaintiff against
the same defendant.
Cole v. Arnold, 545 S.W.2d 95, 97 (Tenn. 1977).
As the Cole Court noted, the roles of parties in a prior suit can be decisive in the
application of the doctrine of collateral estoppel. In Fourakre v. Perry, 667 S.W.2d 483 (Tenn.
App. 1983), a wrongful death action was brought for the death of the plaintiff’s wife that resulted
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from an automobile accident with a state trooper. In an interlocutory appeal filed after the state
trooper’s motion to dismiss was denied, the Court of Appeals held that a prior judgment for the
State in an action before the Board of Claims based on the trooper’s negligence barred the
plaintiff from asserting the trooper’s negligence in a later action filed in Circuit Court.
Fourakre, 667 S.W.2d 488. The Fourakre Court also found the plaintiff had waived jury trial
by “participation in the non-jury proceeding before the Board of Claims”. Id. at 489. The Court
of Appeals reversed the trial court’s denial of the defendant’s motion stating “where the
discharge of the master was expressly based upon the failure to prove negligence of the servant,
then the plaintiff is not privileged to relitigate the issue of negligence of the servant in a
subsequent proceeding.” Id. at 487. However, in discussing its holding the Fourakre court
noted:
there is no “mutuality of estoppel” in that the state trooper who
was not a party to the action before the Board of Claims (indeed
could not be) cannot be estopped by the action of the Board
because he had no opportunity to litigate any issue before the
Board. The trooper invokes estoppel against the plaintiff herein
because he (the plaintiff) was a party with opportunity to litigate
before the board the identical issue in the present case, i. e. the
negligence of the trooper.
Id. at 488. That court clarified the limits of collateral estoppel by applying its reasoning to
hypothetical situations stating:
[i]f the circuit court case against the trooper had been tried first,
an unfavorable jury verdict would have estopped plaintiff’s claim
against the State; but a verdict for the plaintiff would not have
been binding upon the State because it was not a party to the
circuit court case .....If the Board of Claims decision had been
favorable to the plaintiff, the trooper would not be estopped to
defend the circuit court suit because he was not a party to the case
before the Board of Claims.
Id.
The case at bar appears to be analogous to hypothetical situations discussed by the
Fourakre Court, and we agree with that Court’s reasoning that a party, not given the
opportunity to litigate in a prior action, is not bound by that holding. Id at 488 - 89.
Privity, within the meaning of the doctrine of res judicata, is privity as it exists in
relation to the subject matter of the litigation. Cantrell v. Burnett & Henderson Co., 187 Tenn.
552, 216 S.W.2d 307, 309 (1948)(quoting 30 Am.Jur. at 957-958). In Shelley v. Gipson, 218
Tenn. 1, 400 S.W.2d 709 (1966), a rural mail-carrier, Shelley, sued the Gipsons for personal
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injuries sustained in an automobile collision while Shelley was performing his duties as a mail-
carrier. The Gipsons filed suit against Shelley in a separate action which was removed by
Shelley to federal court pursuant to federal law and proceeded as a tort action against the United
States under the federal tort claims act. The federal judge in the case found that the plaintiff,
Richard Gipson, was guilty of proximate contributory negligence and therefore could not recover
and further found that Shelley was guilty of negligence which was a proximate cause of the
accident. After this holding in the federal court, the Gipsons filed a plea of res judicata in the
instant case filed by Shelley for his personal injuries. The issue before the Supreme Court was
whether the trial court correctly sustained the plea of res judicata and dismissed Shelley’s suit.
In discussing privity, the Court states:
Privity is based on the relationship of two parties for the
purposes of res judicata, only as it pertains to the subject matter
of the suits.
In a situation where a party is trying to bring suit against
a servant after having been unsuccessful against the master on a
vicarious liability claim, the servant is in privity with the master
and he can properly plead res judicata against the unsuccessful
plaintiff whose suit against the master had been dismissed.
Caldwell v. Kelly, 202 Tenn. 104, 302 S.W.2d 815 (1957). In the
instant case, however, the servant, Shelley, is not the defendant
in the second suit, but the plaintiff suing the original plaintiff in
the former suit. The significant difference, of course, is that here
the postal employee is asserting his interest for damages which
were immaterial to his master, the United States, in the former
suit. The trial court held that privity existed between the United
States Government and Shelley. We do not agree for the reasons
appearing herein. (emphasis added).
Id. at 712.
The Court then discussed various cases dealing with privity, res judicata, and collateral
estoppel, and concluded by stating:
It is one of the proud boasts of the Anglo-American legal
tradition that every man is entitled to his day in court, that is, a
trial court, and Shelley has not had that day to assert his claim for
damages. He was certainly not a party to the litigation in the
federal court; he had no right to cross-examine witnesses; no
control over the litigation; he had no right to appeal the finding of
his negligence, because the judgment was not adverse to him, and
since, also, he was not a party. It might be said that he could have
filed a counterclaim by way of intervention in the suit against his
employer, but if he had, he would have then had two suits
pending -- one in the state court and one in the federal court for
the same cause of action seeking the same damages.
We think that Shelley should have an opportunity to try
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his case as a plaintiff in the Circuit Court for Franklin County
where the suit is now pending.
Id. at 715.
In Leathers v. USA Trucking, Inc., No. 02A01-9109-CV-00198, 1992 WL 37146 (Tenn.
App. 1992), this Court considered a case involving issues similar to the case at bar. Leathers was
involved in a vehicle accident with defendant Young, an employee of USA Trucking, Inc. USA
owned the vehicle driven by Young. Leathers’s employer, Gibson Electric Membership
Corporation, sued Young and USA Trucking for property damage to its truck and recovered a
judgment against Young and USA Trucking for the property damage. Leathers subsequently
sued Young and USA Trucking for his personal injuries and asserted in his complaint that the
defendants were collateral estopped from relitigating the issue of liability because of the previous
judgment rendered against them in favor of Leathers’s employer. The trial court sustained
Leathers’s use of collateral estoppel in this situation, and this Court granted an interlocutory
appeal on that issue. The Court found that the privity asserted is analogous to the relationship
found in Shelley and stated:
When GEMC sued U.S.A. Trucking, GEMC was not representing
the interests of Leathers, but rather was attempting to recover for
its own property damages. In the present suit, the Leatherses are
asserting their interests in damages for personal injuries, which
are immaterial to the interests litigated by GEMC.
Id. at 4.
We find that privity does not exist between Johnson and the City of Memphis to support
claim preclusion through the application of collateral estoppel. Johnson’s interest in the subject
matter, a claim for personal injuries, was not represented by the City of Memphis in the previous
action. Barring Johnson’s claim against Downing would preclude her from the opportunity to
litigate the issue of negligence where she was not a party, or in privity with a party, to the prior
action. Preclusion of her claim would also violate her right to a jury trial protected by the
Tennessee Constitution. It is clear from the order of the trial court that the City of Memphis’s
refusal to consolidate the cases, and try both in one proceeding before one judge and one jury,
effectively denied Johnson her constitutional right to a jury trial.
We agree with the Appellant that should the trial court find different degrees of fault, this
would not create inconsistent verdicts.
8
Accordingly we reverse the trial court’s order granting summary judgement and remand
this case for trial. Costs of the appeal are assessed against Appellee.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
DAVID R. FARMER, JUDGE
____________________________________
ALAN E. HIGHERS, JUDGE
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