                   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


                                                2
               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

                                                3
        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.
        3
               §. 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.

                                                 4
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



                                                  5
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


                                                 6
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


                                                7
                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




                                               9
