### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decem ber 12, 200 2 Session NANCY S. WEBBER v. GARY D . WEBBER Direct Appeal from the Chancery Court for Anderson County No. 00CH0517 Hon. William E. Lantrip, Judge

FILED FEBRUARY 4, 2003
No. E2002-01355-COA-R3-CV

The Trial Court held it had jurisdiction over marital property a

nd alimony. Husband arg ued since the divorce was granted in Nevada , the Nevada Decree was res judicata

on these i ssues. We a

ffirm.
Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed.

H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which H O US TON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. David A. Stuart and Roger A. Miller, Clinton, Tennessee, for Appe llant, Gary D. Webber

. W. Andrew Fox, Knoxville, Tennessee, for Appellee, Nancy S. Webber.

OPINION

Nancy Webber (“wife”), filed a Petition for Enforce ment of F oreign Judgment i n this Stateagainst Gary

Webber (“husband”), seeking enf orcement of a Nevada divorce

decree which was entered divorcing the parties in 1998 in the State of Neva da.
In the Petition the wife asserted that while the Nevada divorce was valid as a status judgmen t, that Court did not have personal jurisdiction over the husband. Since that Court didn’t have jurisdiction over alimony and prope rty issues, she

sought to have these issues addressed by the Tennessee court.-2- Husband movedto dismiss, on t he grounds that t

he Neva da decr ee was res judic

ata as to all issues in the divorce.

The Trial Court then entered an Order finding the wife should be allowed t o domestica

te the Nevada decree, and that the de cree was entitled to full fai th and cre dit. Su bs eq ue nt ly, the Court determined the husba nd was judi cially estopped fr om arguing that the Nevada cour t was the proper forum for issues relating to mar ital property, and he

ld that it had jurisdict ion and did

adjudica te issues p ertainin g to mar ital prope rty , alimony

and attor ney ’s fees

. On appeal, the husband insists that the doctri ne o f Ju dicial Estoppel was not applica ble to this cas e, and tha

t res judic ata would bar the wife’s attempt to litigate property

issues in Tennessee, after obtaining the divorce in Nevada.
In the Nevada divorce action, the husband swore that he was a resident

of Tennessee, and that had no contact with the State of Neva da. He then moved to dismiss because the Nevada Courthad no personal jurisdiction over him. He rec ited in his Motion that he was entering a special appearance

for the purpose of contesting jurisdiction. He also conceded that the N evada divorce statute allowed the Nevada Court to assert jurisdiction over the plaintiff and to award a divorce, but asserted that the Nevada Court could not dispose of any property rig

hts.
Howeve r, whe n the wife brought this action in Tennessee, seeking to have the propert y issues adjudicated, the husband argued that he entered a gener

al appearance in Nevada, tha t the Court ther e had jurisd iction ov er the propert y rights of the parties , and since t he Fi nal D ecree made no provisi on for sa

me and wa s not appe aled, tho se issues were now barred by res judic

ata
. Our Supreme C ourt has p

reviousl y st ated, how ever, th at, “[w]hile the law of judicial estoppel is ordinarily applied to one who h as made oath to a state of facts in a former judicia l proceeding which in a later proceeding he under takes to contradict, y et

it is frequently applied, whe re no oath is involved, to one who undertakes to maintain inco nsistent pos itions in judicial proceedings.” Stearns Coal & Lumber Co. v. Jame stown R. Co. , 208 S.W. 334 (Tenn. 1919). Recently the Supre

me Court e

xplained the doctri ne of judi cial esto ppel as f ollows:
Under the doctrine of judicial estoppe l "a party will not be permitted to occupy inco nsistent positions o

r to take a position

in rega rd to a ma

tter whic h is directl y contrary to, or inconsistent with, one prev iously assumed by him, at least wher e he had, or was charge a ble with, full knowledge of the facts, and another will be prejudiced

by this action." Obion County v. McKinn is , 211 Tenn. 183, 364 S.W.2d 356, 357 (1962 ); see also L ayhew v. Dixon , 527 S.W.2d 739, 741 (Tenn.1975); Wernev. Sanderson , 954 S.W.2d 742, 745 (Tenn.App.1997). Designed to prevent a party from "gaining an unfai r advantage," Carvell v. Bottoms , 900 S.W.2d 23, 30 (Tenn.1995), the indoc trination of judicia

l estoppel by Tennessee courts has been cogen tly explained by

this Court in Sartain v. Dixie Coal & Iron Co. , 150 Tenn. 633, 266 S.W. 313 (1924):-3- The distinctive feature of the Tennessee law of judicia l estoppel (or estoppel by oa th) is the expre ssed purp ose of the court, on broad grounds of public pol

icy , to uphold the sanctity

of an oat

h. The swo

rn statem ent is n ot me re ly e vidence against the litigant , but (unle ss explained) precl udes him f

rom deny ing its truth. I

t is not mer

ely an admission, but an absolute bar.
Id . at 318.
Marcus v. Marcus , 993 S.W.2d 596, 602 (Tenn. 1999).

This Court has also pre viously ruled that estoppel applies to a pa rty who takes a

n inconsistentposition in

a proceeding, e.g., Mo ntgomery v. Nicely , 301 S.W.2d 379 (Tenn. Ct. App. 1956). In another case Cothron v. Scott , 446 S.W.2d 533 (Tenn. Ct. App. 1969), this Court quoted with approval from 31 C.J.S. Estoppel §117:

The rule is well establishedthat during the co urse of litigatio n a party

is not permitted to assume or occupy inconsiste

nt and con

tradicto ry positions, and while

this rule i s freque ntly refer red to as “judicia

l estoppel,” it more

properl y is a rule which estops a party to play fast-and-loose w ith the courts. Id. at 535-536.

Th e T rial Court properly r uled that the husband was estopped from alleging in the Tennessee Court thatthe Nevada Court had jurisdiction, when he took the opposite position during the pendency

of the Nevada

action. However, husband argue s that the Motion was never ruled upon, and that his attorney later sig ned the Decree of Divorce, a nd that su ch constitutes a general appearance in that action.

Under Nevada law, a party

may enter a

special appearance for the purpose of contesting personal jurisdiction, and it is notconvert ed to a g eneral

appear ance un less the p arty

seeks additional relief. See Simpson v . O’Donn ell , 654 P.2d 1020 (Nev. 1982). Also see Estin v. Es tin , 334 U.S. 541 (1948). The record before us illustrates that the husband entered a special appear ance in Nevada for the purpose of contesting personal jurisdiction , and the Nevada Court entered a Divorce Decree because the Court had pe rsonal jurisdiction over the wife. That Court did not adjudicate any

of the parties’ property

rights. See Simpson

. Husband’s argument that his attorney made a gene

ral ap pearance in the Nevada Court is not established by the rec ord, except by a possible neg ative inference, i.e., the Decree signed by the husband does not specifically state the husband made a special appearanc e, but by similar negativeinference, the Court recognized husband’ s special appearanc e , in that the Decre e only1 From the actual arguments of the husband ’s att orney conta ined in the transcripts and the plead ings filed on th

e husban d’s beha

lf, it is clear the husband

only made a spec ial appearance for the purpose o f contes ting jur isd icti on and this position was consistent both before and after the Decree of Divorce. -4- recites that the Court had jurisdiction of the plaintif f and the subject matter. 1 The husband’s argume nt is withou

t merit.
Based upon the f

orego ing, it is clear that the Nevada Decr ee cannot be res judic

ata on the property issues. Res judic ata applies o nly

if the pri or judgm

ent “con cludes th e right s of the parties on the merits.” Richardso n v. Tenn. Bd. of Den tistr y , 913 S.W.2d 446, 459 (Tenn. 1995). Thus, a judgment in a prior action has to be final, meaning that it disposed “of the whole merits of the case leaving nothing for the f urther judgment of the court.” Id. at 460. Since the Neva

da Court h ad no juri sdiction to adjudica te the pa rties’ pr operty rights, res judicata may not be invoked in this action, and we affirm the Judgment of the Trial Court. The cost of the appeal is assessed to Gary D. Webber.

_________________________

H ERSCHEL P ICKENS F RANKS , J.