                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                     March 6, 2012 Session

        CYNTHIA A. WILKERSON v. RAYNELLA DOSSETT LEATH

                      Appeal from the Circuit Court for Knox County
                     No. 3-93-06   Hon. Wheeler A. Rosenbalm, Judge


                    No. E2011-00467-COA-R3-CV-FILED-JUNE 22, 2012




D. MICHAEL SWINEY , J., concurring.


                 I concur in the Opinion and Judgment of this Court to reverse the Judgment of the
Circuit Court. I agree with the Opinion that Ms. Leath’s “judgment of conviction cannot be used for
collateral estoppel purposes because the judgment of conviction is not a final judgment.” Likewise,
I agree with the Opinion that under current Tennessee law, Ms. Wilkerson “cannot assert the doctrine
of collateral estoppel because she was not in privity with the State” and, therefore, the mutuality of
parties as required in Tennessee for offensive collateral estoppel is missing. Sullivan v. Wilson
County, No. M2011–00217–COA–R3–CV, 2012 WL 1868292, at *11 (Tenn. Ct. App. May 22,
2012), no appl. perm. appeal filed.1

                I write separately to address the mutuality of parties requirement when a party seeks
to use what has been termed offensive collateral estoppel. Current Tennessee law is as expressed
in the Opinion in that mutuality of parties, or at least mutuality by privity, is required for offensive
collateral estoppel. While accepting that experience and not always logic is the foundation of our
law, I do not think logic should be discounted completely. This situation shows exactly why the
requirement of mutuality of parties in offensive collateral estoppel should be reconsidered in this
State and offensive collateral estoppel should be treated the same as any other collateral estoppel.

               Here, Ms. Leath has been found guilty of first degree murder of her husband, Ms.
Wilkerson’s father. While this conviction is not yet final and cannot yet be used for collateral
estoppel purposes, the judgment will at some point either become final or be reversed, modified, or
vacated. Even if Ms. Leath’s conviction of first degree murder of her husband becomes final, current
Tennessee law would prevent Ms. Wilkerson from using that conviction for collateral estoppel
purposes which means that Ms. Leath would get to relitigate in this civil case the issue of whether


       1
           The period of time in which an appeal may be filed in Wilson has not yet expired.
or not she intentionally killed her husband. In that event, Ms. Leath would be allowed to contest this
issue in the civil case even though she was found, in her criminal case, beyond a reasonable doubt
to have murdered her husband.

               If Ms. Leath’s criminal conviction becomes final, all the necessary elements of
offensive collateral estoppel would then be present except the required element of mutuality of
parties. As this Court has stated before:

               Collateral estoppel, an issue preclusion doctrine, was devised by the courts
       to “conserve judicial resources, to relieve litigants from the cost and vexation of
       multiple lawsuits, and to encourage reliance on judicial decisions by preventing
       inconsistent decisions.” Beaty v. McGraw, 15 S.W.3d 819 at 824 (Tenn. Ct. App.
       1998). The doctrine bars the parties or their privies from relitigating issues that were
       actually raised and determined in an earlier suit. Id.

Trinity Indus., Inc. v. McKinnon Bridge Co., Inc., 77 S.W.3d 159, 184 (Tenn. Ct. App. 2001). The
reasons our courts devised collateral estoppel are just as relevant in offensive collateral estoppel as
in any other collateral estoppel. I know of no legitimate reason to allow an individual who has been
convicted in a criminal court to relitigate that exact same issue in a subsequent civil suit. I,
respectfully, believe the time has come to treat offensive collateral estoppel no differently from all
other instances of collateral estoppel.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE
