# FILED
January 14, 1999 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

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 CHAN CERY COUR T OF DAVIDSO N COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. K ILCREASE, JR., CHANCE LLOR

G. KLINE PRESTON, IV Wash ington Squ are 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 REMAND ED
BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - The Ch ancery Court of Davidson County dismissed the plaintiff’s bail ment action on the ground of res j udicata and prior suit pendi ng. We rev ers e because the record does not include evidence from which we can conclude that the issues in the case had been deci ded or were pending in the prior case.

I.

As it stood on the date the chancell or di smissed it, this action was for a breach of abailment contract against Tennessee Truck Sales, Inc. and its owner, Donald A. T omlins on. The complaint alleged that the plaintiff bought a truck from Tennessee Truck Sa les, Inc . and too k it back fo r some neces sary repairs. In a dispute over

the responsibility for the repairs, the defendants asserted a common law lien and retained pos s ession of the truck. The plainti ff then sued the defendant Tennessee Truck Sales, Inc. and tw o parts suppliers for breac h of war rant y. The complaint goes on to alleg e:

14. Plainti

ff avers that on the

12th day of September, 1996, the Court enteredan Agreed Order, the termsof which included his dismissal with prejudice of his claims, in an action filed in t he Chancery Court of Davidson County, Tennessee, at Nashville, Case No. 96- 132-II, which was filed on Apr il 26, 1996, and the Defendants Seal Po w er Corporation and Federal Mogul Engine Products were to pay to Tennessee Truck Sales, Inc. the sum of four thousand eight hundred doll ars ($4,800.00) as payment in full forthe indebtedness owed to Tennessee Truck Sa les by the Plaintiff, and that Tennessee Truc k Sa les would return Plai ntiff’s truck to him in good working

condition.

. . . 21. Plainti

ff avers that whil e the Defendants, Tennesse e Truck Sales and Tomlinson, held his truck pursuantto a common law mechanic s lien, that they did not care for its condition, and a llowed it to be damaged by the weather and other events and elements , while they held it to Plaintiff’s exclus ion based on a fraudulent mechanics lien.

. . . 30. The Plaintiff avers that the Defendant’ s possession of his truck was a bail me n t and that the- 3 - Defendants were responsible for t he truc k while in their possession. 31. T he Plaintiff avers that the Defenda nt s 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 truckwere 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 i ncluded allegations that the order in the former
case dis missed the plaintiff’s claims agai nst Tennessee Truck Sales, Inc. w ith prejudice; that on May 2, 1996 the pla intiff moved under Rul e 60.02, Tenn. R. Civ. Proc., to set aside the agreed ord er in the former case; that the trial court had denied the motion and that the plaintiff hadappealed 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, w ith the addition of fraud, violation of the Tennessee Consu mer Protection Act, and breach of

bailment, all of which causes of action arose out of the same transaction as originally sued upon by the P laintiff; 10. The instant action and the prev ious action involve the same partie s, with the exception that certain defendants involved in the previous action are not sued in this action and that the Plaintiff added Dona ld Tomlinson, individually, to this action.
The record in this case does not conta in any evid ence. The facts alleged in the motion to dismiss are merely that, allegations. But

we do have a copy of the Court of Ap peals opinio n in the former case, which helps to complete the picture. The opinion recites these facts:

Appellantfiled a complaint on A pril 26, 1996 against appellee, along with Sealed Power Corporation and Federal Mogul Engine Products [footnote] for breach of express and implied w arranties. The complaint w as dismissed by the entryof an agreed order on September 12, 1996 in which Sealed Po w er and Federal Mogul agreed to pay $2,400.00each to Tennessee Truck Sales, and Tennessee Truck Sales agreed to accept that sum as- 4 - paymentin full of the repair bill and to return his tru ck to him “in good workin g condition.” A ppellanttook possession of the repaired truc k from Tennessee Truck Sales in September 1996. Seven months later he filed this Rule 60.02 motion to se t as ide the agreed order, allegi ng material misrepresenta ti o n in the inducement to dismiss his c omplaint. He complained that when the truck was returned to him it was not in good working condition and had over $7,000.0 0 in body damages cau sed while in the exclu sive possession and control of appellee.

__________

[Footnote]

Seale d Power a nd Fe deral Mogul provi ded the repair par

ts. See Hampton v. Tennessee Truck Sa les, Inc. , No. 01A01-9707-CV-00046 at *1 (Tenn. Ct. App. April 29, 1998). The Court of Appeals affirmed the trial court’s r efusal to set aside the former judgment. One of the bases for the opinion was expressed in these three paragraphs:

We agree with the t rial court that appellant was guilty of laches. This equitable def ens e involves an inexcusablylong delay

coupled with injury

to the rights of another resulting from the del ay. (Citations omitted. ) The appella nt admit

s that he took pos sessio n of h is truckin September 1996, but says th e truck was not returned in good work

ing condition and that

“ It had five or six ser ious oil leaks, t h e engin e was sucking air,one of the heads was seep ing, it sounded like it had several cracked inject ors, the batteries needed repla ci ng along with flat tire s, and [it had] over $7 , 000.00 in body damages caused while in the exclusive po ssession and control of [appellee].” Although the problems with th e truc k were such that he shou ld ha ve noticed them immediately upon taking possession [footnote] the plaintiff waited seven months to file a motio n to se t aside the agreed order. After that length of time, the appellant cannot reasonably be e xpected to prove the condition of the truck when it was deliv

ered to appellant. These circum stances

justify the application of the doctrine of laches.

__________

[Footnote]

If nothi ng else, $7, 500.00 in body dama ge woul d have been readil

y apparent . Id. at *1 and *2.- 5 - II. Res Judicata

The courts draw a disti nction between res judic ata and collat eral estoppel: The doctrine of res judicata bars a second suit

between the sa me parties or their priv ies on the sa me cause of action with resp ect t o all issues which w ere or could have be en lit igated in the former suit. C ollateral 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 est oppel i s an issue preclusion doct rine, and that is what th e defendants assert in this case. In Beaty v. McGraw , No. 01A01-9701-CV-00046 at *6 (Tenn. Ct. App. Dec. 10, 1998), Judge Koch surv eyed the Tennesseedecisions and distilled the following requir

ements for the collateral estoppel doctrine: 1. that the issue sought to b e precluded is identical to the is sue de cided in the earlier suit; 2. that the issue sought to b e precluded was actuallylitigated 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 colla tera l estopp el is asserted was a party or is i n privity with a party to the earlier suit; and 5. that the party against whom collateral estoppel is asserte d had a full and fair opportunity i n the earlier suit to liti gate the issue now sought to be pr cluded. (Footnotes omitted.)

The issue to be litigated i n this case was the defendants’ liabi lity fo r 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- 6 -

litigated in that action because the tr uck was not d elivered 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 Rul e 60.02 moti on in the former c

ase the p laintiff alleged that the judgment should be set aside so that he c ould make a claim for

the damages to the truck inflicted while the truck was in the ex clusive possession and control of the appellee. The Court of Appeals hel d in part that the Rule 60.02 r elief was barred by

the doctrine of laches. But that decision was not on the merits of the bailmentclaims. See Goeke v. Woods , 777 S.W.2d 347 (Tenn. 1989). While the defendants may ultimately prev ail on the laches defense, it has not been raised on the merits of the bailment cl aim.

III. Former Suit Pending

In Cockburn v. Howard Johnson, Inc. , 385 S.W.2d 101 (Tenn. 1964), t he Court recited the requir ements for a s uccessful ple a based on a fo rmer suit pendin g:

[T]he two suit s must involve the id entical subject matter and be between the same parties and the f or mer 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 wasstill viable in Tennes see. Se e 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 w ere involvedin the former suit. And we thi nk therecord refutes a conclusion that the sa me issue was pendi ng in an ap peal of the

former case. That appeal only involved the propri ety of the trial judge’s rul ing on the Rule 60.02 motion. It did not involv e an appeal of the merits of a bailment cl aim.

The judgment of

the lower court is reversed and the caus e is remanded to the Chancery Court of Dav idson 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