W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins, J., joined.
Appellants appeal the dismissal of their products liability cases. The trial court concluded that the doctrine of collateral estoppel applied to a prior forum non conveniens dismissal. The trial court reasoned that, at the time of the prior forum non conveniens dismissal, Appellants should have foreseen that the foreign forum would be unavailable to them and that issue should have been raised in previous proceedings. Because we conclude that an alternative to the application of collateral estoppel may apply, we reverse.
This is our fourth decision relating to this litigation, albeit the third involving Appellants. See In re Bridgestone/Firestone,
The trial court consolidated the cases for pretrial proceedings on May 21, 2001. Id. Ford and Firestone moved for dismissal under the doctrine of forum non conveniens,
In Firestone I, we considered the following issues: (1) "[w]hether the trial court erred by inquiring into the `adequacy' of an alternative forum as part of its forum non conveniens analysis"; and (2) "[w]hether the trial court erred by denying [defendants'] motion to dismiss under the doctrine of forum non conveniens." Id. In resolving the first issue, we found that the proper inquiry in establishing an alternative forum is to analyze that forum's availability, not its adequacy. Id. at 206. Therefore, the trial court had erred in holding that Mexico presented an inadequate forum to litigate the plaintiffs' cases because "a plaintiff's ability to bring suit is, by itself, determinative of the issue of availability." Id. We then held that, because the record indicated that Ford and Firestone were willing to waive any jurisdictional defenses, Mexico provided an available alternative forum without any further inquiry into the availability of the Mexican courts. Id. at 206-07.
Next we examined the trial court's findings on the public and private interest factors to be weighed in a forum non conveniens analysis. We found, contrary to the trial court, that the public interest factors weighed strongly in favor of requiring the cases to proceed in a Mexican forum. Id. at 209-10. Among other factors, we cited the difficulty our courts would face in interpreting Mexican law that would be applicable to the cases. Id. at 209.
Therefore, we reversed the trial court's decision and granted the defendants' motion for forum non conveniens dismissal. Id. at 210. The plaintiffs filed an application for permission to appeal to our Supreme Court, seeking the addition of a return jurisdiction clause in the event the Mexican courts denied jurisdiction, but the Supreme Court denied the application. See Ramirez, 414 S.W.3d at 722.
Following our decision in Firestone I, the plaintiffs filed numerous lawsuits in several Mexican trial courts. Firestone II, 286 S.W.3d at 901. The Mexican courts dismissed all of the cases, and those dismissals that were appealed were affirmed.
The plaintiffs then re-filed twenty-six of the thirty-one previously dismissed actions in the Circuit Court for Davidson County, and the court again consolidated the cases for pretrial purposes. Firestone II, 286 S.W.3d at 900-02. The defendants responded by filing "motions to dismiss on grounds of [collateral estoppel],
Following its decision, the trial court granted the defendants permission to seek an interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure.
We concluded "that [collateral estoppel] can apply to the findings underlying a dismissal on the basis of forum non conveniens, and in particular can apply to a finding that an alternate forum is available." Id. at 909. Even recognizing the fact that the trial court never made a finding on whether a Mexican forum was truly available, we nevertheless concluded that the finding of an available alternative forum was necessary to our forum non conveniens dismissal in Firestone I and that finding could have a preclusive effect absent a change in the underlying material facts. Id. We further stated:
Id. Therefore, we declined to hold as a matter of law that the plaintiffs were precluded from reconsideration of the availability of Mexico as an alternate forum. Id. Instead, we remanded to the trial court to determine whether the plaintiffs brought their claims in Mexico in good faith. Id. We also allowed the trial court to consider whether the dismissal of the plaintiffs' claims by the Mexican courts was foreseeable. Id.
On remand, the parties engaged in extensive litigation regarding the filing and dismissal of the Mexican proceedings. Ramirez, 414 S.W.3d at 712. Following a four-day evidentiary hearing, the trial court found that eight of the twenty-six cases should be dismissed under the doctrine of collateral estoppel because they had engaged in manipulation of the Mexican proceedings to secure dismissals. Id. at 712-13. In regard to the cases currently before us, the trial court found that the plaintiffs had brought their cases in good faith in Mexico. Id. at 712. In accordance with Firestone II, the trial court also found dismissal did not become foreseeable until after our Supreme Court had denied their application for permission to appeal in Firestone I in June 2004. Id.
The plaintiffs from the eight dismissed cases appealed, resulting in our third decision related to this litigation, Ramirez v. Bridgestone/Firestone, Inc., 414 S.W.3d 707 (Tenn.Ct.App.2013). The primary issue raised by the plaintiffs in Ramirez was whether the trial court erred in finding that they had manipulated the Mexican proceedings to secure a dismissal. Id. at 715. As an alternative ground for the trial court's ruling, the defendants contended that the unavailability of the Mexican courts was foreseeable to the plaintiffs at the time of our original forum non conveniens dismissal in Firestone I. Id. at 721.
The eight cases before us in Ramirez were roughly divided into two categories. In six of the cases, the "FR480" cases, the trial court found that the plaintiffs had manipulated the Mexican proceedings by failing to include a Mexican manufacturer of Firestone tires that may have granted the courts competencia in those proceedings. Id. at 712. In the other two cases, the trial court found that the plaintiffs had attempted to conceal certain documents related to the Mexican proceedings, including the fact that at least one Mexican court had initially accepted jurisdiction over a case before it was voluntarily dismissed and re-filed in another court. Id. at 712, 714. Concluding that the trial court did not abuse its discretion in making these findings, we affirmed its decision with regard to all eight cases. Id. at 718, 721.
Had the decision ended there, the present appeal would have been unnecessary. However, we held that, in the alternative, "even if the trial court erred in dismissing the cases ... the trial court reached the correct result because it was foreseeable to the Plaintiffs, and should have been argued in Firestone I, that Mexico would not accept jurisdiction over their cases." Id. at 722. We overturned the trial court's findings on the foreseeability issue based on two key points. First, we concluded that a plain reading of Mexican law indicated that Mexican courts could never accept jurisdiction over foreign defendants in a personal injury action. Id. at 721. Second,
Following our decision in Ramirez, the defendants filed a renewed motion to dismiss the remainder of the plaintiffs' cases on September 10, 2013.
Id. at 721-22. Appellants filed a timely notice of appeal, raising the issues currently before us: (1) whether the trial court correctly dismissed their cases on the basis that it was foreseeable that the Mexican courts would refuse to accept jurisdiction; (2) whether the Tennessee Savings Statute, Tennessee Code Annotated § 28-1-105 (2000), provides a basis for accepting the cases despite the prior forum non conveniens dismissal; (3) whether the trial court erred in finding that Appellants had
This appeal comes before us on the defendants' motion to dismiss under the doctrine of collateral estoppel. "[W]hether collateral estoppel applies is a question of law." Mullins v. State, 294 S.W.3d 529, 535 (Tenn.2009). We review a trial court's legal conclusions de novo, with no presumption of correctness. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999).
Before addressing Appellants' arguments, we must consider as a preliminary matter the defendants' argument that Ramirez represents the law of the case in this appeal and dictates the result. The law of the case doctrine "generally prohibits reconsideration of issues that have already been decided in a prior appeal of the same case." Memphis Publ'g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.1998) (emphasis added); see also Gray's Disposal Co. v. Metro. Gov't of Nashville, 318 S.W.3d 342, 348 (Tenn.2010); 36 C.J.S. Federal Courts § 602 (2015) ("pursuant to the law-of-the-case, a court will generally refuse to reconsider an issue that has already been decided by the same court or a higher court in the same case." (emphasis added)). The doctrine makes an appellate court's decisions on an issue of law binding in later trials and appeals "of the same case if the facts on the ... [subsequent] appeal are substantially the same as the facts in the first trial or appeal." Memphis Publ'g Co., 975 S.W.2d at 306. The law of the case doctrine only applies to issues that were actually decided by the court — either explicitly or implicitly — but not to dicta. Id.; see also Gray's Disposal Co., 318 S.W.3d at 348.
Neither a constitutional mandate nor a limit on judicial power, the law of the case doctrine represents "a longstanding discretionary rule of judicial practice." Memphis Publ'g Co., 975 S.W.2d at 306; see also Creech v. Addington, 281 S.W.3d 363, 383 (Tenn.2009) ("Law of the case directs a court's discretion; it does not limit the tribunal's power." (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). This discretionary rule is "based on the common sense recognition that issues previously litigated and decided by a court of competent jurisdiction ordinarily need not be revisited." Memphis Publ'g Co., 975 S.W.2d at 306. The doctrine promotes finality and efficiency in the judicial system, avoids the need to relitigate issues, fosters consistency in litigation, and requires lower courts to follow appellate courts' decisions. Id.
Even where a previous decision constitutes the law of the case, a redetermination of an issue decided in a previous appeal may be justified "(1) when the evidence offered at a trial or hearing following the remand is substantially different from the evidence in the earlier proceeding; (2) when the prior decision was clearly erroneous and would result in manifest injustice if allowed to stand; or (3) when the prior decision is contrary to a change in the controlling law which has occurred between the first and second appeal." Gray's Disposal Co., 318 S.W.3d at 348; see also Memphis Publ'g Co., 975 S.W.2d at 306.
Firestone I and II are each previous appeals of the cases currently before
"Collateral estoppel is a judicially created issue preclusion doctrine that promotes finality, conserves judicial resources, and prevents inconsistent decisions." Mullins, 294 S.W.3d at 534 (footnotes and citations omitted); see also State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn.Ct.App.2000) ("Collateral estoppel is an issue preclusion doctrine."). The doctrine of collateral estoppel renders the determination of a particular issue of law or fact conclusive on the parties and their privies where it has previously been "actually or necessarily determined by a court of competent jurisdiction." Cihlar, 39 S.W.3d at 178-79; see also Mullins, 294 S.W.3d at 535 ("[W]hen an issue has been actually and necessarily determined in an earlier proceeding between the parties, that determination is conclusive against the parties in subsequent proceedings."). To prevail on a collateral estoppel claim, the party seeking preclusion must demonstrate:
Mullins, 294 S.W.3d at 535.
The first requirement for the application of collateral estoppel is clearly met. When a party invokes the doctrine of collateral estoppel, we must identify the legal and factual issue decided in the earlier proceeding as well as the issue sought to be precluded in the later proceeding. Id. at
Next we must consider whether the availability of the Mexican courts was an issue actually raised, litigated, and decided on the merits in Firestone I. See id. at 535. In Firestone I, the trial court assumed that the Mexican courts were available based on the defendants' agreement to submit to the jurisdiction of the Mexican courts — an assumption which we ourselves adopted in Firestone I. Firestone I, 138 S.W.3d at 206-07. However, an issue need not be subject to a full evidentiary and adversarial trial to be "actually litigated." Mullins, 294 S.W.3d at 536. Rather, "[t]he requirement that an issue be `actually litigated' is generally satisfied if the issue was properly raised by the pleadings or otherwise placed in issue and was actually determined in the prior proceeding." Id. Because the doctrine of forum non conveniens "presupposes [that] there is at least one [available alternative] forum," Zurick, 426 S.W.2d at 771, in which plaintiffs may bring their case, the availability of the Mexican courts is an issue that was "actually litigated" by necessity in Firestone I.
As to the third requirement for the application of collateral estoppel, our decision in Firestone I became final when the Supreme Court denied the plaintiffs' application for permission to appeal that case. Firestone I, 138 S.W.3d at 202, perm. app. denied, (Tenn. June 1, 2004). The fourth requirement is also quickly disposed of. Appellants include a subset of the plaintiffs who were subject to our forum non conveniens dismissal in Firestone I.
The final requirement for the application of collateral estoppel is that the party against whom it is invoked had "a full and fair opportunity to litigate the issue now sought to be precluded." Mullins, 294 S.W.3d at 538. Although this requirement may appear to be the same as the "actually litigated" requirement, it is not. Id. The "actually litigated" requirement focuses on the issues, while the "opportunity to litigate" requirement focuses on the parties. Id. This latter requirement rests on issues of fundamental fairness and warrants a redetermination of the issue sought to be precluded where "`there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.'" Id. (quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982)). Where the party sought to be precluded is the plaintiff, "it is appropriate to consider (1) the procedural and substantive limitations placed on the plaintiff in the first proceeding, (2) the plaintiff's incentive to litigate the claim fully in the first proceeding, and (3) the parties' expectation of further litigation following the conclusion of the first proceeding." Id. at 538-39 (footnotes omitted).
In regard to this last requirement, Appellants' argument that our decision regarding forum availability in Firestone I did not warrant the application of collateral estoppel is not without merit. On the one hand, the trial court assumed, without deciding, that Mexico presented an available forum, and on extraordinary appeal, we presumed that Mexico was an available forum based on the defendants' agreement to waive any jurisdictional defenses. Firestone I, 138 S.W.3d at 206-07. On the other hand, the plaintiffs could have raised this issue in their original response to the defendants' motion for forum non conveniens dismissal. There is nothing exceptionable in concluding that a party who failed to raise an issue at trial has waived it. See Pratcher v. Methodist Healthcare
Given the presence of all of the necessary requirements, the doctrine of collateral estoppel is applicable to the forum non conveniens dismissals in these cases. Under some circumstances, application of the doctrine of collateral estoppel is warranted to preclude relitigation of a forum non conveniens dismissal notwithstanding the fact that the alternative forum declines to accept jurisdiction. Courts in other jurisdictions have reached a similar conclusion, and the law of the case doctrine compels such a conclusion based on our decision in Firestone II. Firestone II, 286 S.W.3d 898; In re Bridgestone/Firestone, 420 F.3d 702; Mizokami Bros. of Ariz., Inc. v. Mobay Chem. Corp., 660 F.2d 712 (8th Cir.1981); Ex parte Ford Motor Credit Co., 772 So.2d 437 (Ala.2000); Saudi Am. Bank v. Azhari, 460 N.W.2d 90 (Minn.Ct.App. 1990); Alcantara v. Boeing Co., 41 Wn.App. 675, 705 P.2d 1222 (1985).
We next consider whether an exception to the application of collateral estoppel applies to these cases. In Firestone II, we concluded that collateral estoppel "can apply to the findings underlying a dismissal on the basis of forum non conveniens, and in particular can apply to a finding that an alternative forum is available." Firestone II, 286 S.W.3d at 909. However, in light of the fact that the plaintiffs had introduced dismissals from the Mexican forums following our original forum non conveniens dismissal, we were unwilling to hold that they were precluded from re-filing their cases as a matter of law. Id. Rather, we remanded to the trial court to determine whether certain exceptions to the doctrine of collateral estoppel applied to these particular cases with the following instructions:
Id. (footnotes omitted).
In the present appeal, the trial court rested its dismissal on the conclusion that it was foreseeable that Mexico did not present an alternative forum at the time of our original forum non conveniens dismissal.
Close examination of the above-quoted passage from Firestone II supports the latter interpretation. First, our holding in Firestone II draws on two separate sources in outlining the exceptions to the application of collateral estoppel. Firestone II, 286 S.W.3d at 909. We refer to a decision by the Seventh Circuit Court of Appeals, In re Bridgestone/Firestone Inc.,
In concluding that the plaintiffs could avoid the preclusion of their claims on the basis that the unavailability of a Mexican forum was unforeseeable, we turned to another source, the Restatement (Second) of Judgments. Id. at 909. Although the fact that we drew on two separate sources is not determinative of the issue, we find that it strongly suggests that Firestone II recognized two independent exceptions to the application of collateral estoppel.
Furthermore, the plain language of our holding in Firestone II suggests the availability of two independent exceptions to the preclusive effects of collateral estoppel. After discussing the possibility that the plaintiffs could avoid preclusion by demonstrating that they brought their claims in good faith in the Mexican forums — followed by their subsequent dismissal — we state: "In addition, the trial court may consider whether the dismissal of the Plaintiffs' claims was foreseeable. See Restatement (Second) of Judgments § 28(5)(b) and comment i [(1982)]." Id. (emphasis added). This statement indicates that we were not qualifying the prior exception but discussing an additional exception to the operation of collateral estoppel.
Such an interpretation of our decision in Firestone II is also consistent with our reading of the Restatement (Second) of Judgments, a portion of which we cited in adopting the foreseeability exception. The section of the Restatement cited in Firestone II reads more fully as follows:
Restatement (Second) of Judgments § 28 (1982) (emphasis added). As we understand it, the Restatement sets forth a number of independent exceptions to the doctrine of collateral estoppel based on its disjunctive nature. Under the present circumstances, a finding that Appellants' cases were dismissed by the Mexican courts notwithstanding the Appellants' good faith efforts could support application of the second exception. A finding that dismissal by the Mexican courts was unforeseeable at the time of the forum non conveniens dismissal could independently excuse the operation of collateral estoppel under the fifth exception.
For the foregoing reasons, the judgment of the trial court is reversed. These cases are remanded for further proceedings consistent with this opinion.
Tenn. R. App. P. 10(a). The circumstances in which Rule 10 review is available "are very narrowly circumscribed to those situations in which the trial court ... has acted in an arbitrary fashion, or as may be necessary to permit complete appellate review on a later appeal." Tenn. R. App. P. 10 Cmt. (2005). We may only grant a Rule 10 appeal where:
Gilbert v. Wessels, 458 S.W.3d 895, 898 (Tenn. 2014) (emphasis added); see also State v. McKim, 215 S.W.3d 781, 791 (Tenn.2007).
Tenn. R. App. P. 9(a).
