FILED

January 14, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

RAYMOND O. HAMPTON, )

)

Plaintiff/Appellant, )

) Appeal No.

) 01-A-01-9712-CH-00721

VS. )

) Davidson Chancery

) No. 97-2692-I

TENNESSEE TRUCK SALES, INC. )

and DONALD A. TOMLINSON, )

)

Defendants/Appellees. )

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

G. KLINE PRESTON, IV

Washington Square Two

222 Second Avenue North

Suite 416

Nashville, Tennessee 37201

Attorney for Plaintiff/Appellant

GERALD C. WIGGER

W. CARL SPINING

200 Fourth Avenue, North

Third Floor

P. O. Box 198985

Nashville, Tennessee 37219-8985

Attorneys for Defendants/Appellees

REVERSED AND REMANDED

BEN H. CANTRELL,

PRESIDING JUDGE, M.S.

CONCUR:

KOCH, J.

CAIN, J.

O P I N I O N
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The Chancery Court of Davidson County dismissed the plaintiff’s

bailment action on the ground of res judicata and prior suit pending. We reverse

because the record does not include evidence from which we can conclude that the

issues in the case had been decided or were pending in the prior case.

I.

As it stood on the date the chancellor dismissed it, this action was for

a breach of a bailment contract against Tennessee Truck Sales, Inc. and its owner,

Donald A. Tomlinson. The complaint alleged that the plaintiff bought a truck from

Tennessee Truck Sales, Inc. and took it back for some necessary repairs. In a

dispute over the responsibility for the repairs, the defendants asserted a common law

lien and retained possession of the truck. The plaintiff then sued the defendant

Tennessee Truck Sales, Inc. and two parts suppliers for breach of warranty. The

complaint goes on to allege:

14. Plaintiff avers that on the 12th day of

September, 1996, the Court entered an Agreed Order, the

terms of which included his dismissal with prejudice of his

claims, in an action filed in the Chancery Court of

Davidson County, Tennessee, at Nashville, Case No. 96-

132-II, which was filed on April 26, 1996, and the

Defendants Seal Power Corporation and Federal Mogul

Engine Products were to pay to Tennessee Truck Sales,

Inc. the sum of four thousand eight hundred dollars

($4,800.00) as payment in full for the indebtedness owed

to Tennessee Truck Sales by the Plaintiff, and that

Tennessee Truck Sales would return Plaintiff’s truck to

him in good working condition.

. . . 

21. Plaintiff avers that while the Defendants,

Tennessee Truck Sales and Tomlinson, held his truck

pursuant to a common law mechanics lien, that they did

not care for its condition, and allowed it to be damaged by

the weather and other events and elements, while they

held it to Plaintiff’s exclusion based on a fraudulent

mechanics lien.

. . .

30. The Plaintiff avers that the Defendant’s

possession of his truck was a bailment and that the
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Defendants were responsible for the truck while in their

possession.

31. The Plaintiff avers that the Defendants

intentionally breached their duty to protect the Plaintiff’s

property which resulted in damages to the truck.

32. The Plaintiff avers that the damages to the

truck were a direct and proximate result of the defendants’

intentional breach of their duty as bailees.

The defendants filed a motion to dismiss on the grounds of res judicata

and former suit pending. The motion included allegations that the order in the former

case dismissed the plaintiff’s claims against Tennessee Truck Sales, Inc. with

prejudice; that on May 2, 1996 the plaintiff moved under Rule 60.02, Tenn. R. Civ.

Proc., to set aside the agreed order in the former case; that the trial court had denied

the motion and that the plaintiff had appealed the denial to the Court of Appeals. The

motion then concluded with these two specific allegations:

9. The Plaintiff alleges in this action the same

matters set forth in the previous action, with the addition

of fraud, violation of the Tennessee Consumer Protection

Act, and breach of bailment, all of which causes of action

arose out of the same transaction as originally sued upon

by the Plaintiff;

10. The instant action and the previous action

involve the same parties, with the exception that certain

defendants involved in the previous action are not sued in

this action and that the Plaintiff added Donald Tomlinson,

individually, to this action.

The record in this case does not contain any evidence. The facts

alleged in the motion to dismiss are merely that, allegations. But we do have a copy

of the Court of Appeals opinion in the former case, which helps to complete the

picture. The opinion recites these facts:

Appellant filed a complaint on April 26, 1996

against appellee, along with Sealed Power Corporation

and Federal Mogul Engine Products [footnote] for breach

of express and implied warranties. The complaint was

dismissed by the entry of an agreed order on September

12, 1996 in which Sealed Power and Federal Mogul

agreed to pay $2,400.00 each to Tennessee Truck Sales,

and Tennessee Truck Sales agreed to accept that sum as
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payment in full of the repair bill and to return his truck to

him “in good working condition.”

Appellant took possession of the repaired truck

from Tennessee Truck Sales in September 1996. Seven

months later he filed this Rule 60.02 motion to set aside

the agreed order, alleging material misrepresentation in

the inducement to dismiss his complaint. He complained

that when the truck was returned to him it was not in good

working condition and had over $7,000.00 in body

damages caused while in the exclusive possession and

control of appellee.

__________

[Footnote] Sealed Power and Federal Mogul provided the

repair parts.

See Hampton v. Tennessee Truck Sales, Inc., No. 01A01-9707-CV-00046 at *1

(Tenn. Ct. App. April 29, 1998). The Court of Appeals affirmed the trial court’s refusal

to set aside the former judgment. One of the bases for the opinion was expressed in

these three paragraphs:

We agree with the trial court that appellant was

guilty of laches. This equitable defense involves an

inexcusably long delay coupled with injury to the rights of

another resulting from the delay. (Citations omitted.)

The appellant admits that he took possession of his

truck in September 1996, but says the truck was not

returned in good working condition and that

“It had five or six serious oil leaks, the

engine was sucking air, one of the heads

was seeping, it sounded like it had several

cracked injectors, the batteries needed

replacing along with flat tires, and [it had]

over $7,000.00 in body damages caused

while in the exclusive possession and

control of [appellee].”

Although the problems with the truck were such

that he should have noticed them immediately upon

taking possession [footnote] the plaintiff waited seven

months to file a motion to set aside the agreed order.

After that length of time, the appellant cannot reasonably

be expected to prove the condition of the truck when it

was delivered to appellant. These circumstances justify

the application of the doctrine of laches.

__________

[Footnote] If nothing else, $7,500.00 in body damage would

have been readily apparent.

Id. at *1 and *2.
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II.

Res Judicata

The courts draw a distinction between res judicata and collateral

estoppel:

The doctrine of res judicata bars a second suit

between the same parties or their privies on the same

cause of action with respect to all issues which were or

could have been litigated in the former suit. Collateral

estoppel operates to bar a second suit between the same

parties and their privies on a different cause of action only

as to issues which were actually litigated and determined

in the former suit.

Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989). As this description indicates,

collateral estoppel is an issue preclusion doctrine, and that is what the defendants

assert in this case. In Beaty v. McGraw, No. 01A01-9701-CV-00046 at *6 (Tenn. Ct.

App. Dec. 10, 1998), Judge Koch surveyed the Tennessee decisions and distilled the

following requirements for the collateral estoppel doctrine:

1. that the issue sought to be precluded is

identical to the issue decided in the earlier

suit;

2. that the issue sought to be precluded was

actually litigated and decided on its merits in

the earlier suit;

3. that the judgment in the earlier suit has

become final;

4. that the party against whom collateral

estoppel is asserted was a party or is in

privity with a party to the earlier suit; and

5. that the party against whom collateral estoppel is

asserted had a full and fair opportunity in the

issue now sought to be pr earlier suit to litigate thecluded.

(Footnotes omitted.)

The issue to be litigated in this case was the defendants’ liability for a

breach of the bailment contract. From the record in this case we cannot conclude that

that issue was litigated in the former case. In fact we don’t think it could have been
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litigated in that action because the truck was not delivered to the plaintiff until the

former suit had been settled. Therefore the breach did not occur until after the agreed

judgment was entered in that case.

It is true that in his Rule 60.02 motion in the former case the plaintiff

alleged that the judgment should be set aside so that he could make a claim for the

damages to the truck inflicted while the truck was in the exclusive possession and

control of the appellee. The Court of Appeals held in part that the Rule 60.02 relief

was barred by the doctrine of laches. But that decision was not on the merits of the

bailment claims. See Goeke v. Woods, 777 S.W.2d 347 (Tenn. 1989). While the

defendants may ultimately prevail on the laches defense, it has not been raised on the

merits of the bailment claim.

III.

Former Suit Pending

In Cockburn v. Howard Johnson, Inc., 385 S.W.2d 101 (Tenn. 1964), the

Court recited the requirements for a successful plea based on a former suit pending:

[T]he two suits must involve the identical subject matter

and be between the same parties and the former suit

must be pending in a court in this state having jurisdiction

of the subject matter and the parties.

385 S.W.2d at 102.

This court recently held that the defense was still viable in Tennessee.

See Davich v. State Farm, No. 01A01-9303-CV-00119 (Tenn. Ct. App. August 18,

1993).

Again, the record in this case is simply not complete enough to allow us

to conclude that the same issues were involved in the former suit. And we think the
record refutes a conclusion that the same issue was pending in an appeal of the

former case. That appeal only involved the propriety of the trial judge’s ruling on the

Rule 60.02 motion. It did not involve an appeal of the merits of a bailment claim.

The judgment of the lower court is reversed and the cause is remanded

to the Chancery Court of Davidson County for further proceedings. Tax the costs on

appeal to the appellee.

____________________________

BEN H. CANTRELL, 

PRESIDING JUDGE, M.S.

CONCUR:

_____________________________

WILLIAM C. KOCH, JR., JUDGE

_____________________________

WILLIAM B. CAIN, JUDGE