# FILED July 17, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) PENNY POSTELLE , ) Davidson County Circuit Court ) Nos. 97C-578 and 97C-569 Plaintiff/Appellee. ) ) VS. ) C.A. No. 01A01-9708-CV-00446 ) DR. GENE SNEAD, Indiv idually and ) d/b/a EMERGENCY CHIR OPRACTIC ) CLINIC , ) ) Defendant/Appe

llant. ) )

______________________________________________________________________________ From the Circuit Court of Davidson County at Nashville. Honorable Thomas W. Brothers, Judge

John M. Cannon , CANNON, CANNON & COOPER, P.C., Goodlettsville, Tennessee Attorney fo

r Defendant/App

ellant. Stephen Crofford , PARKER, ALLEN & CROFFORD, Nashville, Tennessee Attorney for Plaintiff/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)1 The judgment inadvertently reads “2-18-96.” This case addresses the issue of whether the dismissal of an act ion for fai lure to prosecute in general sessions court operat e s as an adjud ication on the merits , thus barri ng a subsequent

suit on the same cause of action under the doctrine of res judicata , absent local rule. The appellant,Dr. Gene Snead, individually, and d/b/ a Emergency Chiropractic Clinic (hereinafter “Snead”), has appealed from the summary judgment enter ed bythe trial court in favor of the appellee, Penny Postelle (“Postelle”), which holds that such dismissal is not an adjudication on the merits and that the res judicata doctrine is not an available defense to Snead in the present action. After review of therecord, we

affirm the judgment of the trial court for the reasons hereinafter stated.

On July 31, 1996, Pos

telle filed a civi

l warrant in ge

neral sessions co

urt ag ainst Snead to recover $5,500 allegedly due her for work and labor performed on Snead’s behalf. A hearing was set for August 23, 1996. Postelle did not appear in court on the day of the scheduled hea ring. Snead andhis co unsel w ere present, however, and Postelle’s suit was dismissed for failure to prosecute. The judgment states “[d]ismissed F.T.P.” and is dated August 28, 1996. The record does not include an appeal from the dismissal.

On December 13, 1996, Postelle filed an identical action against Snead in the general sessions court. Snead file d a motion to dismiss this second action on t

he basis that the dismissal of the first action for failure to prosecute was an adjudication on the merits and that the present action
was barred under the doctrine of res judicata . Snead asserted, “[Postelle] ha s a lready had the opportunity

to litigate this matter and instead, this case was dismissed in favor o f [Snead]. Therefore, this Court must, underthe doctrine of res judicata dismiss this action . . . .” The general sessions court

granted the motion and entered judgment for Snead on February 18, 1997. 1 The court also denied Postelle’s motion to se t aside the order of dismissal entered on August 28, 1996. On February 27, 1997, the presiding judge of the general sessions court entered an order amending local Civil Rule 4.01 by addi ng the following language: “[w]hen a case is dismissed without a trial for want of prosecution, said dismissal shall be without prejudice to either party’s r ight to bring it again.”2 The motion reads, in part, as follows : The problem at the General Sessions level was that the local rules for the General Sessions Court of Davidson County, Tennessee, did not address whether a dismissal for failure to prosecute was a judgment on the merits or not. A special Judge made the ruling at the General Sessions level. The fact that this case was appealed was brought to the attention of the General Sessions Court Admin istra tor, p rovid ing th e Cour t Admi nist rator the br iefs o f both parti es. . . . In response to this inquiry, the General Sessions Judges, through the presiding Judge, . . . responded with a letter dated February 28, 1997, and an Or der amending the local rules of the General Sessions Court of Davidson County, Tennessee. . . . . . . the General Sessions Court of Davidson County, Tennessee, has clarified and se

t forth the practi

ce in General Se

ssions Court to speci

fy that a dismissal for want of prosecution is a dismissal without prejudice to either parties[’] rights to bring it again.
3 The parties do not dispute that the amendment to local rule 4.01 occurred after the ruling of the general sessions court on February 18, 1997.

4 The affidavit of Dr. Snead was submitted in support of the motion.
5 The affidavit of Postelle submitted in support of her motion for summary judgment states that the money

due her from Snea

d is $5,500. This amou

nt was not refuted

in the affidavit submitted by Snead.

Postelle appealed the general sessions court’s decision to circuit court where she filed
a motion for summary judgment asserting that the amendment to local rule 4.01 resolved the issue. 2 (R. 12). Snead also filed a motionfor summary judgment asserting that the rule upon which Postelle reliedwas entered after the accrual of their defense of res judicata 3 and also ar gue d, from the standpointthat Postelle was apparently appealing both t

he granting of

the motion to

dismiss and the denial of her motion to set aside, that it was too late to set asidethe prior order of di smissal because Postelle d id not appe al that deci sion with in ten (10) days after the or iginal heari ng. 4

After entertaining the parties’ respective motions, the trial court entere d an order granting Postelle’s motion for summary judgment “on the issue of res judicata not being an available defense” and also on the issue that the monetary amount to which she

would be entitled,

if liability
were proven, was $5,500. Thecourt denied Snead’s motion for summary judgment and expressly reserved the issue of

liability. After further hearing, the trial court entered a final judgment finding “no genuine issue of material fact for trial” and awarding a judg ment to Postelle for $5,500. 5

The sole issue p resented on appeal, as stated by the appellant, is “[w]hether a dismissal for failure to prosecute in a general sessions case, absent local rule or specific finding ofprejudice, operates as a res judicata bar to the same action in a

subseque nt suit.” We

believe this issue is resolved by this court’s opinion in Sea-Land Servic e, Inc. v. Buntrock Indus., Inc., No. 03A01-9407-CH-00237, 1994 WL 719601 (Tenn. App. Dec. 28, 1994). In Sea-Land, the plaintiff initially filed suit again

st the defendant in general

sessions court and

on the scheduled h

earing date failed to ap pear, altho ugh defendant and counsel were present. The suit was dismissed for failure to prosecute. The plaintiff thereafter pursued the same action against the defenda ntin the chancery court where it was dismissed uponmotion for summary judgment under the doctrine of res judicata
. Th e o nly issue presented on appeal was whether the trial court had er red in entering summary judgment for the defenda

nt. In holding

the doctrine inap

plicable under th

e facts before

it, the SeaLand court reasoned

as follows:

In order for re s judicata to operate as a bar to plaintiff’s suit in the instantcase, the dismissal of the pri or general se

ssions suit must

have been a dismissal on the merits of the case. Long v. Kirby-Smith , 40 Tenn.App. 446, 292 S.W.2d 216, 219 ( 1956). Therefore, the dispositive issue in this case is whether the dismissal of the gener al sessions suit operated as a adjudication on the

merits of th e case. Under Tenn.R.Civ.P. 41.02, the dismissal for failure to prosecu t e operates as an adjudicationupon the merits unless otherwise ordered by the court. However, the Tennessee Rules of Civil Procedure do notappl y, wi th certain exceptions not applicable here, to general sessions court. Tenn.R.Civ.P. 1. Accordi ng ly, in the absence of a statute or rule

to the contrary, common law controls the decision as to whether the general sessions dismissal operates as an adjudication on the merits. In W. R. Grace & Company v. Taylor , 55 Tenn.App. 227, 398 S.W.2d 81 (Tenn
. App. 1965), this court was faced with a similar problem. In Grace , the defendant entered a plea of res judicata

on the ground that a bill on the same cause of action had previously been filedby com

plai nant in November of 1961, but had been dismissed by decree of Septem

ber 3, 1962 , for failure to prosecute. Id . at 82. On the date the first case was set for trial, complainant did not appear, although defendant was ready for trial. Id . at 83. The court then dismissed plaintiff’s case for want of prosecution. Id
. The plaintiff then refi led the same suit a short time later. In the second suit, the chancellor

overruled defenda

nt’s plea of res judicata, and held that the order of dismissal, eventhough it did not recite that it was without prejudice, was not res judicata. In affirming the chancellor, this court said: [W]he re it a ppears on the face of a decree of dismissal that it was not upon the merits, as in this case where it appears from the faceof the decree the dismissal was based on want of pro sec ution, that a suit on the same grounds may be reinstated at any time within one year, and that such a decree is not res judicata. Id
. at 83. Se e al

so Patrick v. Dickson , 526 S.W.2d 449(Tenn.1975); Woods v. Palmer , 496 S.W.2d 474 (Tenn. 1973). In Patrick v. Dickson, supra , our Supreme Court, after ruling that the Tennessee Ru

les of Civil Procedu

re do not apply

to paternity cases in juvenile court,

held that an order

of dismissal for fa

ilure to prosecute which stated that the dismissal was with prejudice did not operate as an adjudication o n the merits and would not sustain the plea of res judicata in the case before the court. Id . at 453. Under the above authorities, it appears that the dismissal for lack of prosecution o f p laintiff’s first case in general sessions court was not an adjudication on the merits, and, theref ore, res judicat

a would not bar this suit in the case before us. Accordingly, the order of the trial court granting summary judgment is rever sed.

We find the reasoning set forth in Sea-Land applicable to the present case . We thereforefind that the dismiss al of Postell

e’s origin al suit for failure to prosecute was not an adjudication on the merits and th at Postelle was ent

itled to refile the

sameaction against Sn

ead, in accordance

with the savings statute. The doctri ne of r es judicata is not available a s a defense to Snead in the present action.

It results that the jud

gment of the tria

l court is affirme

d and this cause remand ed thereto for any further proceedings herewith consistent. Costs are a ssessedagainst the appellant, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LILL ARD, J. (Concurs)