### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

anuary 19, 2001 I N RE 

### : ESTATE OF CONSTANTINE ANAGNOST Appeal from the Chancery Court for Knox County No. 55484-1 Daryl R. Fansler, Chancellor

FILED APRIL 19, 2001 No. E2000-02321-COA-R3-CV

This litigation involves a claim against an estate. The claimant asserts that the decedent breached a contract which p

urportedly

obligated the de

cedent to convey

to the cla

imant a certa

in parcel of property upon the claimant’s satisfaction of his contractual obl igations. The estate moved for summary judgment, ar guing that the issues relating to the existence of the purported contract had beendecided adversely to the claimant in an earlier suit, thereby barring the present claim under the doctrine of res judicata . The trial court granted summary judgment to the estate, and the claimant now appeals, asse

rting that the pr

ior judgment does

not bar the instant

claim. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. George Anagnost, Knoxville, Tennessee, Pro Se. Melinda Meador, Kn ox ville, Tennessee, for the appellee, Mrs. Virginia Anagnost, Personal Representative f

or the Estate of Co

nstantine Anagn

ost. OPINION
I. The appellant, George Anagnost, and his sister, Athena Anagnostopoulos, owned a tract of property located in Knox County

that was sold on August 23, 1991, in satisfaction of unpaid city and county property taxes. Knox County purchased the property at the tax sale for

$84,716.07. Shortly thereafter, George’s brother, Constantine Anagnost, and his wife, Virginia Anagnost, purchased the property from Knox County for $93 ,187.6 8. Constantine and his wife borrowed $80,000 from Valley Fide lity Bank an d Trust Company to partially fund the purchase, a nd the property was conveyed to them subject to the right of redemption of George and Ath

ena. The sale of

the property1 By this time, Valley F idelity Bank and Trust Company had been sold to or merged into First Tennessee Bank. -2- to Constantine and Virginia was co nfi rme d by a judgment entered by Chancellor Frederic k D. McDonald on October 14, 1991. George alleges that

during theone-year redemption period, he and Constantine agre ed that George would manage the property and pay Constantine’s note to the bank, and that when the note was eventuall

y paid off, Constantine would return the property to George. George began making the monthly payments of $892.06 on the note on September 30, 1991.
After the expiration of the one-year redemption period, Constantine petitioned the court for a tax deed convey

ing the property

to him and Virginia. The Chancery Court held a hearing on the matter on December 18, 1992. George alleges that he was not presen t at this hearing. At the conclusion of the hearing, Chancellor McDo nald specifical

ly found that the redemption period had expired without redemption being effected and directed the Clerk and Master to issue a tax deed and a writ of possession to Constantine and Virginia. The Chancel lor’s order reflects th at his find ings were made upon consideration of “s tat ements ma de by c ounsel fo r [Constan

tine and V

irginia] , statements

made by George A

nagnost , statements made by the Clerk and Master, the file at large and the records of this case.” (Emphasis added.)
On January 18, 1 993, George fi led a handwritten

motion cla

iming that he had not been present at the December, 18, 1992, hearing and requesting the court to set as ide its order. I n his motion, George assert s that he “had an agreement with Constantine Anagnost that Constantine Anagnost would buy the

property a

t the tax sale for or

on behalf of [Geor

ge] with a lo an from his bank and then [George] would pay that loan off and keep the proper ty.”
A hearing on this handwritten motion was held o n February 4, 1994. After hearing the parties’ argu

ments, the court f

ound as follows: Well, insofar as [the motion] alleges that [George] was not present for the time the case was heard, he was pre sent. The Court recall s him being here. So, I don’t think that’s any ground, and we cannot grant the motion for that reason. And we con sidered the claims at that previous hearing

and overruled th

em. Chancellor McDon

ald subsequently denied the motion and again dire

cted the Clerk an

d Master to issue a tax deed and a writ of possession to Constantine and Virginia.
On Mar ch 4 , 19 94, Geo rge f ile d a p eti tio n to rehe ar. T he d eed c onv eyin g the pro pert y t o Constantine and Virginia wa s executed and del

ivered on April 4,

1994, along with

a writ of possession, and George’s petition to rehear was denied on April 5, 1994. George continued to make payments on Constantine’s no

te until June or July

, 1994, when Consta

ntin e told the b ank 1 to discontinue accepting payments from George.2 George also fil ed two other clai

ms on January 21, 1999: (1) a claim amending his prior clai m clarify ing that the property was in

itiall y owned by both hi

m and Athena a

nd ulti mately purchased by

both Constanti

ne and Virginia; and (2) a claim seek

ing damages in t

he amount of $8,000,000 and asser ting that such damages resulted from the breach of the contra ct. This latter claim is not at issue on this a ppeal. -3- The instant litigation

was commenced a

fter Consta

ntine died on August 25, 1998, and Virginia was appointedhis personal representative. On November 20, 1998, George filed a claim against the estate alleging “[b]reach of contract regarding a redemption agreement.” On January 21, 1999, he filed another claim for breach of the redemption agreement on behalf of Athena, for whom he h ad p owe r ofatt orn ey. 2
The Estate moved for summary judgment, arguing, inter alia , that the claims had already beenadjudicated in the

prior proceedin

g. In his response to the Estate’s motion, George asserted the following as an additional fact constituting a material fact re ndering summary judgment inappropriate: This agreement continued to be in effect

even after Constantine and Virginia Anagnost obtained the Deed to the property. Even after the Deed of [sic] the property wastransferred to Constantineand Virginia Anagnost,Constantine Anag n ost on behalf of him self and Virgin

ia Anagnost told George Anag

nost that Virginia and he did not want the property. After

all, they we

re brothers,

and that it was Virginia that wa ntedto make sur e that the De ed served as gu arantee that George would give them their mo

ney back. I

t was not unti

l Jun e of 1994 when Constantine Anag

nost instructed Fi

rst Tennessee B ank not to accept George Anagnost’s payments and begun [sic] to treat the property a

s his own and come in

possession of it. The court, on January 19, 2000, found that George’s assertion that the agreement continued to be in effect even after Constantine and Virginia obtained the deed to the property added nothing to the assertions made by George in the prior litigation and was thus barred. The court then stated as follows: [T]aking the assertions of Mr. Anagnost and his counsel in the light

most favorable to them they have at best alleged a land sale contract enter ed into between Consta ntine Anagnost a

nd George Ana

gnost subsequent

to December, 1992. At oral argument, the Court observed potential problems associated with such a claim but nevertheless wil

l grant claimant an additional thirty day s within which to supplement his response to the personal representative’s motion for summary judgment.3 The term “pri vies” i ncludes “

those who a

re so rel ated by reason of the facts show ing an identity of inte rest.” Cotton v. Under

wood , 223 Tenn. 122, 442 S.W .2d 632, 634-35 (1969 ). -4- In response to this order, George filed an unverified supplemental response to the Estate’s summary judgment m otion. Thr ough this response, George presented (1) an unsigned promissory note, the original of which he apparently claims to have executed and given to Constantine, and (2) a copy of the

$80,000 cashier’s check from Valley Fidelity Bank and Trust Company made paya

ble to Constantine and Vir

ginia. While the r

elevancy of these documen

ts to th e a lleged “land sa le contract” claim is not entirely clear, it is apparently Ge orge’s position that both th e note and the check, in some und

isclosed way

, relate to that la

nd sale contract

. Upon review of George’s supplemental response, the court granted summary judgment to the Estate. George now appeals, raising the following two issues: (1) whether the trial court erred in grantingsummary judgment to the Estate on the basis of res judicata ; and (2) whether there was an agreement

between theparties subsequent to the entr y of the order fol lowing the p rior proceed ing.
II.
A. Before determining whe

ther summa

ry judgme

nt is appropriate

in this case, we mus

t first establish the applicable principles. “The doctrine of res judicata bars a second suit betw

een the same parties or their privies on the same cause of action with respect to al l issues which w ere or could have been litigated in the former suit.” Massengill v. Scott , 738 S.W.2d 629, 631 (Tenn. 1987). The purpose of the doctrine is to “promote[] finality in litigation.” Lien v. Couch , 993 S.W.2d 53, 55 (Tenn. Ct. App. 1998) (citing Moulton v. Ford Motor Co. , 533 S.W.2d 295, 296 (Tenn.1976)).
An assertion of res judicata , if i t is to prevail, must be supported by a showing that “(1) a court of competent jurisdiction rendered the prior judgment, (2) the prior judgment was final and on the merits, (3) the same parties or their privies 3 we re involved in both p roceedings, a

nd (4) both proceedings involved the same cause of action.” Lien , 993 S.W.2d at 56; see also White v. White , 876 S.W.2d 837, 839 (Tenn. 1994).
A prior jud gment is res ju dicata as to all matters at issue in the prior proceeding as they existed at the time the prior judgment was rendered. White , 876 S.W.2d at 840. It bars the litigation notonly of those

matters actually determined in the prior action, but also those that reasonably

could have been litigated i

n the prior action. American Nat’l Bank and Tr ust v. Clark , 586 S.W.2d 825, 826 (Tenn. 1979). A pr

ior judgment does

not, however, ope

rate to prohibit the later

consideration of rights that had not accrued at the time of the ear

lier proceeding

or the re-examina

tion of the same question between the same parties when the facts have changed or new facts have occurred that have altered the parties’ legal rights and relations. See White , 876 S.W.2d at 839-40.-5- B. Having decided the re levant parameters of our inquiry, we must now determine whether summary judgment for the Estate is appropriate under the record now before us. In deciding whether a grant of summary judgment

is appropriate, c

ourts are to dete

rmine “if the plea

dings, deposition

s, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue a

s to any mate

rial fact and tha

t the moving party

is entitled to a judg

ment as a matter o f law.” Tenn. R . Civ. P. 56.04. Courts “must take the strongest legitimate view of the evidencein favor of the nonmoving party, allow all reasonable infere nces in favor

of that party, and discard all countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993). The party seeking s ummary jud gment has the burden of demonstrating that there is no genuineissue of material fact and that it is entitled to a judgment as a matter of law. Id . at 215. Once the moving party satisfies its burden of showing that there is no genuine issue of material fact, the burden then shifts to the nonmoving party to show that there is a genuine issue of materia l fact requiring submission to the trier of fact. Id

. George argues that the trial court erred in granting summary judgment

to the Estate because, so the argument

goes, it is unclear from the record what claims George raised at the De cember 18, 1992, hearing and on w

hat basis the cou rt dismisse d his subse

quent han

dwritten m

otion. We disagree, and we therefore hold t hat the trial cour

t did not err in gr

anting summary

judgment to

the Estate.
We are of the opinion that George’s assertion – th at he and Constantine had an agreement whereby Constantine would procure a loan fo r the purpose of p urchasing the p

roperty an

d would returnthe property to George when Georg e paid off the loan –

was litigated in the prior proceeding and det ermined adverse to George as a final judgment on the merits. The chancellor’ s orde r directing the Clerk and Master to issue a tax deed to Constantine and Virgin ia states that the chancellor’s decision was based in part on statements made by George. Even if we were to accept as true that George did not pursue his “contract” argument at the initial hearing in December, 1992, it is cle ar that he made such an argument by way of his handwritten motion, which he filed o n January 18, 1993. The chancellor held a hearing on that motion, and stated that he had “considered the claims at [the] previous hearing and overruled them.” He again directed the Clerk andMaster to issue a tax deed to Co nstantine and Virg

inia, which was do

ne on April 4, 1994. Apart from George’s petition to rehear, which was den ied, the issuance of the tax deed was not further questione d in th at proceeding and the decree of the court became final. Geor ge made no further claim with respec

t to the purported a

greement until a

fter Constantine d

ied, four ye

ars later. Thus, we are of the opinion that the pri or judgment of the chancellor d irecting the Cle

rk and Master to issue a tax deed to Constantine and Virginia was a final judgment on the m eri ts and that the judgment is res judicata

as to George’s

allegation that

Constantine purch

ase d the propert y with a view toward holding it for George’s ultimate benefi t. The sa

me argument wa

s made in both proceedings and involv ed the same parties, except that the instant case involves the Estate of Constantine Anagnost, which is clearly in privity with Constantine himself.-6- C.
We are further of the opinion that the trial court was correct in holding that the prior judgment is also res judicata as to George’s argument concerning the “continuation” of

the contract. Add iti ona lly, with respect to whether there was a land sale contract which was agreed to

subsequent to the issuance of

the tax deedto Constantine and Virginia, that issue was not pled, and we will not consider it. George brou

ght the instant ac

tion for “[b]reach

of contract reg

ardin g a rede mption agreement

between Constantine Anagnost and George Anagnost with respect to property

previously belonging to George Anagnost and subsequently purchased by Constantine Anagnost as a result of a tax sale in 1991.” Summary judgment is appropriate as to this claim. George’s claim that he and Constantine entered into a new contract subsequent to the prior proceeding wa

s not raised until

the summary judgment proce

ss was already

underway.

Moreover, even

if that i ssue wer e properly before this court, we are of the opinion that George’s proffer of the unsigned promissory note and a cop y o f the $80, 000 cashier’s ch eck that Constantin

e and Virginia p

rocured to enab

le them to purchase the property is insufficient to prove the existence of a land sale contract arising subsequent to date of the final judgment of t he prior ac tion. For the foregoing reasons, we find that the trial court did not err in granting summary judgment to the Estate.
III. The judgment of the tria

l court is affirme

d. The case is re

manded for colle

ction of costs, assessed below, a

ll pursuant to applic

able law. Costs on a

ppeal are taxed to

the appellant.

___________________________________ CHARLES D. SUSANO, JR., JUDGE