# FILED
December 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

JAMES ROWLAND MOORE, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9708-CV-00444 VS. ) ) Davidson Circuit ) No. 94D-2612 KAREN OWEN MOORE, ) ) Defendant/Appellee. )
APPEALED FROM THE CIRC UIT COURT OF DAVIDSON C

OUNTY AT NASHVILLE, TENNESSEE THE HONORABLE MURIEL RO BINSON, JUDGE

LINDA F. BURNSED AMY BRYSO N SMITH 424 Church Street, Suite 1750 Nashville, Tennessee 37219 Attorneys for Plaintiff/Appella nt SANDRA JONES 213 Third Avenue, North Nashville, Tennessee 37201 Attorney for Defendant/Appellee

REVERSED AND REMAND ED

BEN H. CANTRELL PRESIDING JUDGE, M.S.
CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - After a 1996 divorce by the Circu it C ourt of Davidson County the husband filed an independent damages action in the chancery court, all eging that the wife fraudulently induced him to enter int o the divorce settlement. The wife filed a Rule 60.02 motion in the divorce cou rt seeking a declarati on that she was not guilty of fraud. The divorce court r uled that the chancer

y court wa s bound by the circuit court’s judgment and that the husband must pay $2500 in attorne y’s fees to the w

ife for services in the Rul e 60.02 motion. We reverse.

I.

The parties were

divor ced in 1996 by an

order o f t h e Circuit Court of Davidson County. Prior to the entry of the divorce, th e parties negotiated a settl ement of the marital home. The wif e agreed to pay the husband $9,000 for his equitable interest in the home in exchange for a quitclaim of that interest to the wife. This agreementwas formalized by a n agreed order entered in the divorce court on July 5, 1995. The final order granting the divorce anddisposing of the remaining issues was entered on May 20, 1996.

On or about January 17, 1997, Mr. Moore filed a complaint in the Davidson County Chancery Co ur t accusing Ms. Moore of fraudulent mi srepresentations

in the marital home transaction. Specifically, the complain t alleged that Ms. Mo ore wa s a real est ate agent and that she and her attor ney represented to Mr. Moore that his interest in the home amounted to $9,000 when they knew such r epresentatio ns were false and that the v alue was much higher. The complaintfurther alleges that the $9,000 val ue was based on a total v alue for the home of $ 215,000 , as represented by Ms. Moore, but that she sold the house in September

of 1995 for $238 ,500. Th e compla int sough t compen satory and punitive damages and attorney’s fees and asked for a jury to try the issues.- 3 - On May 2, 1997 Ms. Moore filed a motion to dismiss or in the alternative, forsummary judgment in the chancery court. She assert ed that Mr. Moore was estopped from raising the fraud issue in the chancery court, that the judgment of the divorce court was r es judicata, and that the div orce court had exclusi

ve jurisdiction
over the question. At some point no t clear from the record, Ms . Moore answered the complaint and raised the same defenses th at she raised in her prior motions.

On May 2, 1997 Ms. Moore also filed a motion in the d ivorc e court seeking a review

under Rule 60.02, Tenn. R. Civ. Proc. todetermine “whether fraud
was perpetrated upo n the Court and Defendant in this cause.” The motion also asserted that Mr. Moore’s chance ry court action w as frivolous and that the divo rce court should award sanctions pursuant to Rule 11, Tenn. R. Civ. Proc.

The chancery court overruled Ms. Moore’s motion to dismiss. The court held that the complaint stated a cause of action for fraud, but the court deferred a ruling on the other

matters pending before it until the divorce court ruled on the Rule 60.02 motion.

The divorce court hea rd the Ru le 60.02 motion on July 11, 1997 and thereafter

entered an order holdi ng (1) t hat “Mr. Moore’s ‘eq uitable interest’ in the parties real property

is res judicata and bindi ng on the Chancery Cour t,” and (2) that the June 23, 1995 agreed order “ is notcontractual and does not consti tute a contract but is part of the final resolution of the divorce action and is part of the Final Decree of Divorce.”

II.

We think most of the confusion in this case arises from a fundamental misunderstandingof what is involv ed. First, the chancery

court action is an action for- 4 -

damages based on fraud and deceit. It is not an acti on for relief from the judgment. The chancery court complai nt does not ask that the divorce de cree be set aside, altered, or modified in any way. It seeks compensatory and punitive damages for the defendant’s alleged misrepres entations in the divisi on of the marital home. “This is a separate, in depen dent, and distinct action.... Notwithstanding

that the pro perty settlement agreement mayhave been incorporated into the divorce decree, one option available to

plainti ff to seek redress for the all eged fraud of defendants is to sue for damages at law und er the theory of fraud and deceit.” Tanner v. Tanner

(Tenn. Ct. App., filed at Jacks on July 31, 1985). See also Vance
v. Schulder

, 547 S.W.2d 927 (Te nn. 1977). We would only add that, in our opinion, and contrary to the circuit court’s order, the agreement to divide the mari tal ho me does retain its contra ctual st atus, despite being incorporated into the circuit court’s order. See Penland v. Penland , 521 S.W.2d 222 (Te nn. 1975).
Second, Ms. Moore’s Rule 60.02 motion filed in the circuit court had no le giti mate purpose. Rule 60 provi des avenues for relief from a final j udgment. But Ms. Moore’s motion did not seek any relief fro m the circuit court’s fin al judgment. Stripped to its bare essentials, the motion simply sought a declaration by the circuit court that Mr. Moore’s chancery action had no merit -- a cu rious reversal of the historic relationship between the two courts . That such relief is beyond the power of the circuit court should be apparent. But e ven if the po wer existed, it should be even more apparent that it is not i nvoked by a Rule 60.02 moti on.

Finally, in perhaps the strangest aspec t of this strange case, the circuit court assessed sanctions under R ul e 11, Tenn. R. Civ. Proc. for what the court deemed was Mr. Moore’s frivolous lawsuit in chancery. There is no allegation that Mr. Moore misrepresented anything in responding to t he Ru le 60.02 motion, or that his pos ition was nottenable under the applicable l aw. He did not volunt arily seek any relieffrom the circuit court; he was compelled to respond to Ms. Moore’s effort to seekthe court’s protection from the c hancery action. In our opinion the Rule 11 sanctions were misplaced.

III.

It may be that Mr. Moore’s chancery action is frivolous, w e take no position on the merits of that cas e, but the chancery court has the tools to deal with frivolouslawsuits. We simply recog nize t hat Mr. Moore had the right to file the chancery action and that the circuit court had no power to rul e on its merits or to impose sanctio ns for its filing.

The judgmentof the lower court is reversed and the cause is remanded to the Circuit Court of Dav idson County for any further proceedings that

may become necessary. Tax the cos ts on appeal to the appellee.

_______________

______ _______ _ BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE