dissenting. The majority holds that the Department of Human Services is barred by collateral estoppel from bringing an action in juvenile court in an attempt to establish that the parties’ children are “dependent-neglected.” I cannot agree that on these facts the doctrine of collateral estoppel is applicable.
Collateral estoppel is, as the court says, issue preclusion. One requirement for the doctrine’s application is an identity of issues. David Newbern, Arkansas Civil Practice & Procedure § 26-12 (1985); Jack H. Friedenthal, et al., Civil Procedure § 14.10 (1985). It is said that the requirement that the issues be identical is strictly construed. Friedenthal, supra. In the prior proceeding in chancery court the ultimate questions the court had to decide were whether the mother was in contempt of the court’s prior orders and whether primary custody of the child should be changed from the father to the mother. In the proceeding brought by DHS in juvenile court, the judge would ultimately have had to decide whether the children were dependant-neglected and where their physical custody should be placed, at least on a temporary basis. I agree with the majority that the underlying issue in both cases is whether the father has abused the children, or either of them. Perhaps this is enough to satisfy the requirement that the issues be identical.
I cannot agree, however, that DHS was in privity with the mother in a way which would operate to bar DHS, under the doctrine of collateral estoppel, from bringing a dependency-neglect proceeding. I agree with the majority’s general approach that it is preferable to examine and state the reasons why a non-party should or should not be barred by collateral estoppel, rather than simply concluding that there is or is not “privity.” See 18 Charles A. Wright, et al., Federal Practice & Procedure § 4448 (1981). See also, generally Friedenthal, supra at 683; 46 Am. Jur. 2d Judgments § 532 (1969); Note, Collateral Estoppel of Nonparties, 87 Harv. L. Rev. 1484 (1974).
The majority finds privity here based on § 39 of the Restatement (Second) of Judgments (1980): “A person who is not a party to an action but who controls or substantially participates in the control of the presentation on behalf of a party is bound by the determination of issues decided as though he were a party.” See also, Montana v. United States, 440 U.S. 147 (1979); Friedenthal, supra at 684. The same principle was approved in Carrigan v. Carrigan, 218 Ark. 398, 236 S.W.2d 579 (1951), where the supreme court said:
The strict rule that a judgment is operative, under the doctrine of res judicata, only in regard to parties and privies is sometimes expanded to include as parties, or privies, a person who is not technically a party to a judgment, or in privity with him, but who is, nevertheless, connected with it by his interest in the prior litigation and by his right to participate therein, at least where such right is actively exercised by the employment of counsel, control of the defense, filing of an answer, payment of expenses or costs of the action, or doing of such other acts as are generally done by parties.
Carrigan at 403, (quoting 30 Am. Jur. Judgments § 227). In Mixon v. Barton Lumber & Brick Co., 226 Ark. 809, 295 S.W.2d 325 (1956), Justice Millwee, in referring to the rule approved in Carrigan, added:
An essential condition recognized expressly by most of the cases for the application of the rule is that the prosecution of the action or the defense by the nonparty, or his assistance or co-operation with the party, must have been for the promotion or protection of some interest of his own which would otherwise be prejudicially affected. And ' another condition frequently, but not always, attached to the application of the rule is that such person had the control or a right of control over the litigation, with the privilege of exercising all the rights of a party of record, such as the right to introduce evidence, examine and cross-examine witnesses, and appeal from the decision of the court, etc. . . .
Mixon at 814 (quoting 30 Am. Jur. Judgments § 227 (Supp. 1956)). See also, Montana v. United States, 440 U .S. 147 (1979) at pp. 154 and 155. In the case at bar there is no question but that DHS was not a party to the custody proceeding between the parents. DHS did, through its agent Ms. Snell, advise the mother to continue to violate the prior court order and not return the children to their father. Ms. Snell also testified favorably for the mother in the custody litigation, although she was subpoenaed by the father. It is also true, as the majority states, that both the mother and DHS sought to prove allegations of sexual abuse against the father. Finally, DHS had notice of the custody proceeding, in the sense that its agents were aware of it.
The question in my view is whether this all adds up to sufficient participation and control of the litigation to require the bar of collateral estoppel, I think not. The case at bar has none of the factors typically present when a finding of privity is based on participation and control of the litigation. In the custody suit DHS did not pay attorney’s fees or costs, examine witnesses, argue to the court, or participate in the preparation of the pleadings. DHS did not appeal the chancellor’s order — indeed it could not have as it was not a party to the action. Even though one who has a right to intervene is not by that fact alone bound by the doctrine of res judicata, see UHS of Ark., Inc. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988), it is significant that the dependency-neglect proceeding could not have been joined with the custody proceeding in chancery for the reason that the juvenile court had exclusive jurisdiction. Ark. Code Ann. § 9-27-396(a)(l) (Repl. 1991). Arkansas Code Annotated section 16-13-605(c) (Supp. 1991) prohibits an assignment of such cases out of the juvenile division.
Privity is not established by the mere fact that persons may happen to be interested in the same question or in proving or disproving the same state of facts. 46 Am. Jur. 2d Judgments § 532 (1969). That one person helps another in litigation, by itself, does not justify imposing preclusion on one of them on the basis of a judgment affecting the other. Restatement (Second) of Judgments) § 62 cmt. c (1980). Clearly one does not become bound by res judicata merely because of having been a witness in the prior lawsuit. See Hogan v. Bright, 214 Ark. 691, 218 S.W.2d 80 (1949). DHS’s inability to appeal the custody decree provides a specific exception to the application of collateral estoppel. Restatement (Second) of Judgments § 28(1) (1980).
The paternity cases cited by the majority do not seem to me to be persuasive. In Moore v. Hafeeza, a decision of a New Jersey trial court, the mother brought a paternity action against Hafeeza some fourteen years after she had participated in the same cause of action brought by a New Jersey Board of Social Services against the same man. In Department of Human Services v. Seamster we had the converse situation: DHS brought a paternity action against Seamster some twelve years after the mother of the child had received an adverse determination of the same claim. In Seamster we did not discuss the question of privity. Our decision was a limited one, based upon the particular language of the paternity statute in effect in 1979. Seamster, 36 Ark. App. at 205. The situations in both cases seem analogous to barring successive trustees from filing the same claim on behalf of the same beneficiary against the same defendant. See generally Friedenthal, supra at 684.
Finally, there are constitutional problems. “It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100 (1969). In Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313 (1971), the Court said:
. . . [T] he requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.
Some litigants - those who never appeared in a prior action - may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position.
Blonder-Tongue, 402 U.S. at 329.
While I do not approve of DHS’s advice to the mother to continue to violate the chancellor’s order, I cannot understand how this justifies imposing the bar of collateral estoppel. And while it seems perhaps unwise, given the principle of comity1, for DHS to file a petition in juvenile court based on the same evidence that was so recently found insufficient in chancery court, I cannot agree DHS is legally barred from doing so.
Danielson, J., joins in this dissent.
See Triplett v. Lowell, 297 U.S. 638 at 642 (1936), overruled in part, on other grounds, in Blonder-Tongue, supra.