Third, the court held that Pierce had unsuccessfully litigated the issue in the prior criminal appeal. We construe this final statement to mean that Pierce was precluded from further litigating this claim in this civil action. We first address the question of whether Pierce is precluded from raising this issue because he unsuccessfully litigated it in the prior criminal appeal. Whether a trial court correctly dismisses an action on grounds of issue preclusion presents a question of law which we review de novo. See Jensen v. Milwaukee Mut.
Issue preclusion turns on the concept of fundamental fairness.
We conclude that the burden of proof factor governs this case. If the burden of proof was greater in the first action than in the second, it is inappropriate to apply issue preclusion against the party now assigned a lesser burden. Therefore, under Brunton , Pierce's burden of proof in the criminal case was the clear and convincing standard. Therefore, Pierce was not precluded from bringing this action. We thus turn to the other grounds upon which the trial court granted summary judgment to Colwell.