Vicki L. Carmichael
Earl C. Mullins, Jr.
Lonnie Thomas Cooper
Jeffersonville, Indiana ATTORNEY FOR APPELLEE
Vicki L. Carmichael
Earl C. Mullins, Jr.
in the absence of a showing that it is unfair to the defendant to give conclusive effect to the
abused its discretion. Tobias, 700 N.E.2d at 801. In evaluating abuse of discretion the
Court of Appeals held it was appropriate to give weight to any factors the trial court could
have used in denying the use of offensive collateral estoppel. The Court of Appeals
identified the possibilities that Tobias might introduce new evidence bearing on Doe's
reliability as a witness, or that Tobias might pursue a new defense strategy as potential basis
for the trial court's ruling and then found no abuse of discretion. Id. We granted transfer
to address this issue. We reverse the trial court, and remand with instructions to enter partial
summary judgment on the issue of liability in favor of Doe.
sexual battery under a reasonable doubt standard and he had an opportunity to defend
himself at trial and on appeal. However, Tobias contends, and the Court of Appeals agreed,
that even though the trial court had the power to grant partial summary judgment in favor of
Doe, the trial court also had discretion to deny the motion. The Court of Appeals relied on
Tofany for the proposition that when a trial court denies a motion for partial summary
judgment involving offensive collateral estoppel, the decision should be upheld based on
what the trial court could have found. Tobias, 700 N.E.2d at 801.
We do not agree with the Court of Appeals that the trial court has unfettered discretion to deny offensive collateral estoppel when the first litigated case involved a criminal proceeding and the defendant was proven guilty beyond a reasonable doubt. Tofany adopted for Indiana state law the requirements for offensive collateral estoppel developed in Parklane Hosiery, and in doing so recognized that the trial court has broad discretion in deciding whether to permit offensive collateral estoppel based on a prior civil proceeding. Tofany, 616 N.E.2d at 1038 . In general, this is correct, but its application to a prior criminal conviction requires somewhat different considerations. First, the reasoning of Parklane and Tofany is in significant part inapplicable to the offensive use of a criminal conviction. Both Parklane and Tofany observed that the offensive use of collateral estoppel is more problematic than the defensive use of collateral estoppel. One aspect of this issue is that collateral estoppel is rooted in part in the concern for judicial economy. The use of offensive collateral estoppel in a civil context may actually reduce judicial economy by giving a later plaintiff an incentive to refrain from intervening in the first suit, and wait for
a favorable outcome . . . to assert the prior judgment against the defendant in a second
action. Id. (citing Parklane Hosiery, 439 U.S. at 332-33). This consideration, however, is
wholly inapplicable where the prior litigation was a criminal conviction. The victim does
not have the opportunity to join in the criminal case, and the decision to wait and see
whether to file a civil suit cannot result in duplicative litigation.
A second area of concern is unfairness to the defendants. In determining whether to allow the use of offensive collateral estoppel, the trial court must consider: (1) whether the party in the prior action had a full and fair opportunity to litigate the issue and (2) whether it is otherwise unfair to apply collateral estoppel given the facts of the particular case. Id. These considerations, as a general proposition, are appropriate to evaluation of offensive use of a criminal conviction. However, the factors that support unfairness in a civil context are often inapplicable to a prior criminal conviction. Tofany stated that unfairness to the party against whom the estoppel is asserted may result in the following situations:
(a) where the defendant had little incentive to vigorously litigate the first action
either because the damages were small or nominal, or because future suits were
(b) where the judgment relied upon for estoppel is inconsistent with one or more
previous judgments in which the defendant was successful; or
(c) where the procedural opportunities are available to the defendant in the later
action which were unavailable to him in the previous action and which would
likely affect the result.
Id. (quoting Parklane Hosiery, 439 U.S. at 330-31). In evaluating these possibilities, the trial court is to consider the defendant's incentive to litigate the prior action, the defendant's ability to defend the prior action, and the ability of the plaintiff to have joined the prior
In this case none of the problems associated with offensive collateral estoppel applies. As already noted, the plaintiff's ability to join the first suit is not a factor in considering the effect to be given to a prior criminal conviction. The defendant's lack of an incentive to litigate the first action is also not a significant factor as will presumably be true in most criminal convictions.See footnote 2 The Tofany formulation of this factor is to consider the interest at stake for the defendant . . . [and] whether the forum in which the action was defended allowed the defendant to participate in the full range of discovery. Id. at 1039. In an Indiana criminal prosecution the defendant has the full range of discovery. See In re WTHR- TV, 693 N.E.2d 1, 5 (Ind. 1998) (citing Rita v. State, 674 N.E.2d 968, 970 n.3 (Ind. 1996)) (rules of trial procedure generally apply to criminal proceedings absent a conflicting criminal rule). And although there may be criminal prosecutions that are in effect defaulted, there can be no doubt that the defendant in a B felony case has full incentive to defend. The defendant's ability to defend also presents somewhat different considerations if the prior case is a criminal prosecution. The defendant typically, as here, has appointed counsel. It is therefore appropriate to permit the defendant to raise issues similar to those presented by claims of ineffective assistance of counsel insofar as they bear on the fairness of holding the defendant to the results of the criminal trial. But as to those it should be the convicted defendant's burden to present persuasive evidence of inability or ineffectiveness in
presenting a defense. Here we find none.
Tobias presents his arguments against preclusion of relitigation of liability only in terms of Indiana Code § 34-3-18-1 (1993). Doe responds by pointing to Kimberlin and Hawkins v. Auto-Owners Mutual Insurance Co., 608 N.E.2d 1358 (Ind. 1993), but Tobias does not directly address the doctrine of offensive collateral estoppel. Tobias does, however, argue that the trial court's decision was suspect. Thus, he implicitly contends that its use of offensive collateral estoppel is unfair, and the issue is not waived. Nonetheless, Tobias argues only that the trial court could have denied the motion for partial summary judgment based on the possibilities that he might introduce new unspecified evidence bearing on Doe's reliability or that he might pursue a new unidentified defense strategy. These are always possibilities, but we are directed to nothing that suggests the criminal proceeding was unfair or unreliable.
In sum, the trial court is given broad discretion in evaluating the fairness of offensive collateral estoppel, but that discretion is not unbounded. Rather, the trial court is to consider the Parklane/Tofany factors together with any other factors that bear on fairness, and determine whether the use of offensive collateral estoppel is unfair. The convicted defendant bears the burden of showing that preclusion is unfair.See footnote 3 In evaluating fairness to Tobias, none
of the Parklane/Tofany concerns applies. Tobias faced a serious criminal charge and had
every incentive to defend it vigorously. There is no suggestion that full discovery was
unavailable to him. The burden of proof of beyond a reasonable doubt in Tobias' criminal
proceeding was higher than the preponderance of the evidence required for a civil judgment.
See 47 Am. Jur. 2d Judgments § 732 (1995) (higher standard of proof and numerous
procedural safeguards provide rationale for giving preclusive effect of criminal convictions
in civil proceedings
). Thus, none of the policy concerns identified in Tofany or Parklane
Hosiery that may limit the use of offensive collateral estoppel is evident here, and there is
no other showing of unfairness in preclusion. Under these circumstances, it was an abuse
of discretion to deny collateral estoppel effect to Tobias' conviction.
based on a compromise verdict, (6) treating the issues as conclusive will complicate the determination of issues in the second action, (7) treating it as conclusive would inappropriately foreclose application of a legal rule, and (8) other compelling circumstances. Restatement (Second) of Judgments § 85 & 29 (1982).
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