                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




This appeal involves a suit to restrain a surviving wife from inheriting from her deceased
husband. Husband’s daughter filed a complaint against wife, alleging that wife intentionally
killed husband, thereby forfeiting any right to inherit pursuant to Tennessee Code Annotated
section 31-1-106. When wife was convicted of first degree murder, Daughter filed a motion
for summary judgment and attached the judgment of conviction. The court granted the
motion, finding that no genuine issues of fact remained because the doctrine of collateral
estoppel precluded litigation of whether wife killed husband. We reverse the decision of the
trial court and remand this case for further proceedings consistent with this opinion.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Reversed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., joined and D. M ICHAEL S WINEY, J., concurred filing a separate concurring opinion.

James A. H. Bell and John C. Barnes, Knoxville, Tennessee, for the appellant, Raynella
Dossett Leath.

James S. MacDonald, Knoxville, Tennessee, for the appellee, Cynthia A. Wilkerson.

                                        OPINION

                                   I. BACKGROUND

      David R. Leath (“Husband”) and Raynella Dossett Leath (“Wife”) were married in
1993. Husband entered the marriage with one daughter, Cynthia A. Wilkerson (“Daughter”),
while Wife entered the marriage with two daughters, Raynella Magdelena Dossett and Nancy
Kathalena Dossett (collectively “Stepdaughters”). Husband died as a result of a gunshot
wound to the head on March 13, 2003. Husband’s will could not be found at the time of his
death. Wife and Stepdaughters petitioned the court to establish a copy of the will as
Husband’s last will and testament.1 The trial court denied the petition filed by Wife and
Stepdaughters, and this court affirmed the decision on appeal. See In re Estate of Leath, 294
S.W.3d 571, 578 (Tenn. Ct. App. 2008) (finding that appellants failed to show that Husband
was incapable of revoking his will). Daughter filed a complaint against Wife, alleging that
Wife had “forfeited her right to take any property, whether real, personal, or mixed belonging
to [Husband] at the time of his death” because Wife had feloniously killed Husband. As
Husband’s only heir, Daughter expected to inherit from Husband if Wife was precluded
recovery of the estate. Daughter’s complaint is the subject of this appeal.

       After Daughter filed her complaint, Wife was charged with the unlawful, intentional,
and premeditated killing of Husband. Wife filed a motion to stay the proceedings and
discovery on Daughter’s complaint until a final judgment was entered in the criminal case.
Wife argued that it would be impossible to defend against the complaint without being
compelled to waive her privilege against self-incrimination and the right to due process. The
court agreed, and a series of stays were requested and subsequently granted. While the
criminal case against Wife ended with a mistrial in 2009, a new trial date was set and the
proceedings relating to Daughter’s complaint were continued indefinitely.

       On January 25, 2010, Wife was found guilty of first degree murder and sentenced to
life imprisonment. Daughter filed a motion to dissolve the stay and a motion for summary
judgment, alleging that no genuine issues of material fact remained because Wife had been
convicted of murdering Husband. Daughter argued that the unanimous jury verdict
precluded re-litigation of whether Wife killed Husband, thereby establishing that Wife could
not inherit from Husband pursuant to Tennessee Code Annotated section 31-1-106, which
provides,

        Any person who kills, or conspires with another to kill, or procures to be
        killed, any other person from whom the first named person would inherit the
        property, either real or personal, or any part of the property, belonging to the
        deceased person at the time of the deceased person’s death, or who would take
        the property, or any part of the property, by will, deed, or otherwise, at the



1
 Husband devised a life estate of certain property to his mother, who died shortly after Husband, and the
remainder of his estate to Wife. The will provided that in the event that Wife predeceased Husband or died
with Husband as a result of a common disaster, the remaining property would pass to Daughter, with the
exception that any property that came to him as a result of Wife’s death would pass to Stepdaughters.
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       death of the deceased, shall forfeit all right in the property, and the property
       shall go as it would have gone under § 31-2-104, or by will, deed or other
       conveyance, as the case may be; provided, that this section shall not apply to
       any killing done by accident or in self-defense.

       Wife responded by asserting that a dissolution of the stay would be inappropriate
when a final judgment had not been entered in the criminal case and the case remained
subject to an appeal as of right. She argued that other issues impacted the disposition of the
case, namely she had been charged with the murder of her first husband, William Edward
Dossett. She noted that if she were convicted of murdering Mr. Dossett, the property she
inherited from him should not pass to Daughter but should pass to his heirs pursuant to
Tennessee Code Annotated section 31-1-106. Wife responded to the motion for summary
judgment by stating that the unanimous jury verdict did not preclude litigation of whether she
killed Husband because the related doctrines of collateral estoppel and res judicata did not
apply. Wife asserted that the “same parties” were not “present in each suit, a necessary
element of both res judicata and collateral estoppel.” Wife alternatively argued that a ruling
for summary judgment would be premature when she had not exhausted her right to appeal.

       Following the denial of Wife’s motion for new trial and all post-trial motions in the
criminal case, the court granted Daughter’s motion for summary judgment, finding that the
judgment of conviction and the order denying all post-trial motions were “issue preclusive
of the matters raised in this litigation” and that Wife was “precluded from inheriting or taking
by deed or otherwise any property belonging to [Husband].” This timely appeal followed.

                                         II. ISSUES

       We consolidate and restate the issues raised on appeal as follows:

       A. Whether Wife has waived review of the trial court’s allegedly erroneous
       use of the doctrine of “non-mutual offensive collateral estoppel” in granting
       the motion for summary judgment.

       B. Whether the trial court erred in concluding that Wife was collaterally
       estopped from arguing that she did not kill Husband.

       C. Whether the trial court erred in granting the motion for summary judgment.

       D. Whether the judgment of conviction may still be used at trial if it is not
       entitled to preclusive effect for collateral estoppel purposes.



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                             III. STANDARD OF REVIEW

       On appeal, the factual findings of the trial court are accorded a presumption of
correctness and will not be overturned unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review
with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.
2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed
questions of law and fact are reviewed de novo with no presumption of correctness; however,
appellate courts have “great latitude to determine whether findings as to mixed questions of
fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron
v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

                                     IV. DISCUSSION

                                              A.

        As a threshold matter, we must address Daughter’s assertion that Wife is attempting
to raise an issue for the first time on appeal. The central issue on appeal is the court’s use
of collateral estoppel in granting the motion for summary judgment. On appeal, Wife alleges
that Daughter’s use of collateral estoppel to preclude litigation of whether she killed Husband
was contrary to the law in Tennessee because Daughter was not a party in the criminal case.
Wife notes that use of collateral estoppel in this manner is characterized as non-mutual
offensive collateral estoppel, which Tennessee has specifically declined to accept. Daughter
asserts that Wife never used the terms non-mutual offensive collateral estoppel in the
pleadings or at the hearing and that Wife only alluded to general principles of collateral
estoppel in her defense of the motion for summary judgment. Daughter claims that because
the use of non-mutual offensive collateral estoppel was never specifically addressed in the
pleadings or at the hearing, Wife waived review of the alleged error on appeal.

        A party may not offer a new issue for the first time on appeal. See Lane v. Becker,
334 S.W.3d 756, 764 (Tenn. Ct. App. 2010) (citing Campbell County Bd. of Educ. v.
Brownlee-Kesterson, Inc., 677 S.W.2d 457, 466-67 (Tenn. Ct. App. 1984)). “The
jurisprudential restriction against permitting parties to raise issues on appeal that were not
first raised in the trial court is premised on the doctrine of waiver.” Fayne v. Vincent, 301
S.W.3d 162, 171 (Tenn. 2009) (citations omitted). While the doctrine of waiver is an
important jurisprudential restriction, this court must interpret and apply such rules “in a way
that enables appeals to be considered on their merits.” Id. (citing Tenn. R. App. 1.). In
keeping with that ideal, the party asserting the waiver doctrine bears the “burden of
demonstrating that the issue sought to be precluded [on appeal] was, in fact, not raised in the



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trial court.” Id. (citing Waste Conversion Sys., Inc. v. Greenstone Indus., Inc., 33 S.W.3d
779, 783 (Tenn. 2000); Smith v. Smith, 989 S.W.2d 346, 348 (Tenn. Ct. App. 1998)).

        Here, the pleadings reflect that Wife argued in her response to Daughter’s motion for
summary judgment that “a necessary element of both res judicata and collateral estoppel”
was missing because “[t]he same parties were not present in each suit.” Wife continued by
stating,

       Because the appropriate factors to bar a claim or issue by way of res judicata
       or collateral estoppel have not, and cannot be met, the issue of whether [Wife]
       killed or conspired to kill [Husband] must be litigated in this action.

At the hearing, Daughter argued that Wife’s conviction of first degree murder resolved the
case because the conviction proved that Wife feloniously killed Husband. Relative to the
motion for summary judgment, Wife stated, “Now, on the motion for summary judgment,
there were several factors the [c]ourt should consider, and we filed a brief that deals with
those five factors, but litigation in the criminal matter is still active and ongoing.” Following
further argument relating to the fact that the conviction was not final and could not be used
until it was final, the court sustained the motion for summary judgment after stating that the
findings of the criminal court were “issue preclusive of the matters raised” in Daughter’s
complaint.

        In order to apply the doctrine of issue preclusion, the court must have found, among
other elements, that Daughter, who was not a party in the prior case, was in privity with the
State. State ex. rel Cihlar v. Crawford, 39 S.W.3d 172, 180 (Tenn. Ct. App. 2000). While
the mutuality of the parties was not specifically mentioned during the hearing, the issue was
raised in Wife’s responsive pleading, alluded to in Wife’s argument, and implicated in the
trial court’s ruling. Accordingly, we conclude that Daughter failed to prove that Wife waived
review of the issue.

                                               B.

        Wife asserts that the trial court erred in applying the doctrine of offensive non-mutual
collateral estoppel because Daughter was not a party in the criminal case and because the
judgment of conviction was not final. Daughter responds that while she was not a party in
the criminal case, she was in privity with the State. She also responds that the judgment is
final for issue preclusion purposes until it is reversed.

        “The question of whether collateral estoppel applies is a question of law.” Mullins
v. State, 294 S.W.3d 529, 535 (Tenn. 2009) (citations omitted). Thus, this court must review

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the trial court’s “decision to grant a summary judgment based on [the] collateral estoppel
claim . . . de novo without a presumption of correctness.” Id. (citing Maggart v. Almany
Realtors, Inc., 259 S.W.3d 700, 703 (Tenn. 2008)). This court “must also view the evidence
in the light most favorable to the non-moving party and must resolve any doubts and draw
all inferences in the non-moving party’s favor.” Id. (citations omitted).

       Generally, res judicata bars a second suit between the same parties or their privies on
the same cause of action with respect to all issues that were or could have been litigated in
the former suit. State v. Thompson, 285 S.W.3d 840, 848 (Tenn. 2009) (citing Massengill
v. Scott, 738 S.W.2d 629 (Tenn. 1987)). “In the context of a civil case, collateral estoppel
(also known as issue preclusion) has been described as an extension of the doctrine of res
judicata (also known as claim preclusion).” Id. (citing Massengill, 738 S.W.2d at 631-32).
Collateral estoppel operates to bar a second suit between the same parties and their privies
on a different cause of action only as to issues which were actually litigated and determined
in the former suit. Id. The party invoking the doctrine of collateral estoppel must
demonstrate that

          1. [T]he issue sought to be precluded is identical to the issue decided in the
          earlier suit;

          2. [T]he issue sought to be precluded was actually litigated and decided on the
          merits in the earlier suit;

          3. [T]he judgment in the earlier suit has become final;

          4. [T]he party against whom collateral estoppel is asserted was a party or is in
          privity with a party to the earlier suit;2 and

          5. [T]he party against whom collateral estoppel is asserted had a full and fair
          opportunity in the earlier suit to litigate the new issue now sought to be
          precluded.

Beaty v. McGraw, 15 S.W.3d 819, 824-25 (Tenn. Ct. App. 1998) (internal citations omitted).

       Our consideration of the application of collateral estoppel in this case focuses on the
mutuality of the parties and the finality of the judgment because there was no disagreement
that the issue sought to be precluded was identical to the issue in the earlier suit, that the




2
    This element is somewhat misleading given Tennessee’s doctrine of mutuality of estoppel.
                                                    -6-
issue sought to be precluded was actually litigated and decided on the merits, and that Wife
had a full and fair opportunity to litigate the issue. Mullins, 294 S.W.3d at 536.

                                         1. Mutuality

        Daughter was not a party in the criminal case against Wife. At common law, the
doctrine of collateral estoppel could only be asserted by a person defending against a
previously-litigated claim involving the same party. Beaty, 15 S.W.3d at 825. The doctrine
has since been expanded to allow the offensive use of collateral estoppel. Id. “[T]he
offensive use of the collateral estoppel doctrine [may be used] in two ways.” Id. A plaintiff
may “foreclose a defendant from relitigating an issue that the defendant had previously
litigated unsuccessfully in another action against the same plaintiff.” Id. This use of the
doctrine is referred to as mutual offensive collateral estoppel. Id. A plaintiff may also
“foreclose a defendant from relitigating an issue that the defendant had previously litigated
unsuccessfully in another action against a different party.” Id. Tennessee refuses to approve
this use of the doctrine, which is commonly referred to as nonmutual offensive collateral
estoppel. Id. However, Tennessee’s adherence to the mutuality requirement does not
necessarily mean that the exact same parties must be involved in the prior case in order for
a party to assert the doctrine offensively.

        Instead, the mutuality requirement is met when the party seeking to offensively assert
the doctrine was in privity with a party involved in the previous suit. Crawford, 39 S.W.3d
at 180. In the context of the assertion of collateral estoppel, “privity relates to the subject
matter of the litigation.” Id. “Privity connotes an identity of interest, that is, a mutual or
successive interest to the same rights.” Id. “The existence of privity or identity of interest
for the purpose of applying res judicata and collateral estoppel depends on the facts of each
case.” Id. at 181.

        Daughter argues that utilizing a criminal conviction for offensive issue preclusive
purposes in a civil proceeding has been the approved law in Tennessee since this court’s
decision in McFadgon v. The City of Memphis, 731 S.W.2d 530 (Tenn. Ct. App. 1986). In
McFadgon, a police officer was charged with criminal neglect of duty and was also charged
with violating a department regulation concerning neglect of duty. The officer appealed his
termination to the civil service commission but requested that the appeal be stayed pending
the resolution of the criminal charge. Following the officer’s conviction of neglect of duty
in criminal court, the city alleged that the officer’s termination was mandatory pursuant to
state statute because those convicted of neglect of duty could not maintain their status as a
police officer. The commission agreed and concluded that the officer could not retry the
issues settled by the criminal court and that the conviction disqualified the officer from his
position. This court held that the commission was not required to hold a hearing as to

                                              -7-
whether the officer was guilty of the charge brought by the department. In so holding, this
court cited Grange Mut. Cas. Co. v. Walker, 652 S.W.2d 908 (Tenn. Ct. App. 1983), in
stating, “[a] criminal court conviction may work an estoppel in a subsequent civil action
where the issues have been determined in the previous criminal prosecution.” 3 This quote,
which forms the primary argument in Daughter’s brief on this issue, was derived from
Tietelbaum Furs, Inc. v. Dominion Ins. Co., 375 P.2d 439, 604 (Cal. Ct. App. 1962).
Interestingly, the court in Tietelbaum acknowledged that California had recently abandoned
the mutuality of estoppel doctrine and that prior cases that precluded the application of
collateral estoppel in a civil case to issues determined in a prior criminal case were either
based upon the abandoned doctrine of mutuality of estoppel or other concerns. Tietelbaum,
375 P.2d at 604-05. Regardless of the questionable lineage of the quote relied upon by
Daughter in this appeal, we believe that the facts of this case are materially different from
the facts in McFadgon. In that case, the city and the State had similar interests, namely the
administration of justice and to prevent other law enforcement officers from neglecting their
duties. Additionally, once the officer was convicted of the criminal charge, he was no longer
qualified to maintain his position as an officer. Thus, the use of collateral estoppel was not
necessary to sustain his termination in the civil proceeding even without a full evidentiary
hearing.

       Here, both parties, namely the State and Daughter, sought to prove that Wife killed
Husband. The State’s interest was grounded in the administration of justice, while
Daughter’s interest was grounded in securing an inheritance from Husband, her father. We
acknowledge that both interests, if secured, had an element of justice, namely preventing
Wife from profiting from her alleged wrongdoing. However, unlike Daughter, the State did
not have a pecuniary interest in the litigation. With all of the above considerations in mind,
we conclude that Daughter’s interest in this proceeding differed from the State’s interest in
the criminal proceeding. Accordingly, Daughter cannot assert the doctrine of collateral
estoppel because she was not in privity with the State.

                                            2. Finality

       In the event of further appellate review of this case, we will address the issue of
whether the judgment, while pending on appeal to the Court of Criminal Appeals, was final
for collateral estoppel purposes. A party may not assert the doctrine of collateral estoppel
unless the issue sought to be precluded was “previously and finally decided.” Thompson, 285
S.W.3d at 848. “The burden is on the party asserting collateral estoppel to demonstrate that
a specific point at issue has been previously and finally decided.” Id. “A final judgment is


3
 In Grange, this court reversed the grant of summary judgment because the conviction relied upon for
estoppel purposes was a guilty plea conviction.
                                                -8-
essential under either collateral estoppel or res judicata.” Id. “As a general rule, a trial
court’s judgment becomes final thirty days after its entry unless a timely notice of appeal or
a specified post-trial motion is filed.” State v. Pendergrass, 937 S.W.3d 834, 837 (Tenn.
1996) (citing Tenn. R. App. 4(a) and (c); State v. Moore, 814 S.W.2d 381, 382 (Tenn. Crim.
App. 1991)). In Tennessee, “‘a judgment is not final and res judicata where an appeal is
pending.’” Creech v. Addington, 281 S.W.3d 363, 376-78 (Tenn. 2009) (quoting McBurney
v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991)); see also In re Shyronne D.H., No.
W2011-00328-COA-R3-PT, 2011 WL 2651097, at *6 (Tenn. Ct. App. July 7, 2011) (“[I]t
is an inescapable conclusion that, in Tennessee, a judgment from a case in which an appeal
is pending is not final and cannot be res judicata until all appellate remedies have been
exhausted.”). The parties agree that Wife’s appeal of the judgment of conviction is pending
on appeal to the Court of Criminal Appeals. Accordingly, we conclude that the judgment of
conviction cannot be used for collateral estoppel purposes because the judgment of
conviction is not a final judgment.

                                             C.

      Having concluded that the judgment of conviction cannot be used for collateral
estoppel purposes, we further conclude that the trial court erred in granting Daughter’s
motion for summary judgment because a genuine issue of material fact remained, namely
whether Wife intentionally killed Husband. Tenn. R. Civ. P. 56.04; see Hannan v. Alltel
Publ’g Co., 270 S.W.3d 1, 9 (Tenn. 2008) (providing that “a properly supported motion for
summary judgment “must either (1) affirmatively negate an essential element of the
nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential
element of the claim at trial”). Accordingly, we reverse the judgment of the trial court and
remand the case to the trial court for further proceedings.

                                             D.

       While the judgment of conviction does not have preclusive effect, it may still be
relevant and admissible upon remand to prove facts essential to sustain the judgment at trial,
namely that Wife killed Husband. Indeed, the judgment of conviction may be admitted
pursuant to Rule 803(22) of the Tennessee Rules of Evidence, which provides,

       Evidence of a final judgment adjudging a person guilty of a crime punishable
       by death or imprisonment in excess of one year to prove any fact essential to
       sustain the judgment, but not including, when offered by the prosecution in a
       criminal case for purposes other than impeachment, judgments against persons
       other than the accused. The pendency of an appeal may be shown but does not
       affect admissibility.

                                             -9-
(Emphasis added). Before admitting the judgment of conviction, the court “must find that
the probative value of the prior conviction is not substantially outweighed by the risk of
unfair prejudice.” State v. Scarbrough, 181 S.W.3d 650, 660 (Tenn. 2005) (citing Tenn. R.
Civ. P. 403). If admitted, the judgment of conviction cannot be considered as “conclusive
evidence of the facts necessarily determined in the underlying criminal proceeding.” In re
T.H., No. 01-A-01-9412-JV-00600, 1996 WL 165511, at *2-3 (Tenn. Ct. App. Apr. 10,
1996) (citation omitted). Wife may “contest the conviction by introducing contrary evidence
and argument” because the conviction is “simply evidence” and is “not entitled to preclusive
effect under collateral estoppel.” Scarbrough, 181 S.W.3d at 660.

                                   V. CONCLUSION

       The judgment of the trial court is reversed, and this case is remanded to allow
Daughter to proceed with her complaint with the use of the judgment of the conviction
consistent with this opinion. Costs of the appeal are taxed to the appellee, Cynthia A.
Wilkerson.




                                          ______________________________________
                                          JOHN W. McCLARTY, JUDGE




                                            -10-
