# FILED
April 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9702-CR-00075

) ) Roane County v. ) ) Honorable E. Eugene Eblen, Jud ge ) DENNIE RAY LODEN, ) (Habitual Motor Vehicle Offender) ) Appellant. ) For the Appellant : For the Appellee : Dennie Loden, Pro Se John Knox Walkup 104 Davis Hollow

Road Attorney General of Tennessee Kingston, TN 37763 and Michael J. Fahey, II Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Charles E . Hawk District Attorney General and Frank A. Harvey Assistant District A

ttorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge1 The c ourt of crim inal appea ls has juris diction ove r appea ls in HMV O action s. See T.C.A. § 55-10-6 16. 2 O P I N I O N
The defendant, Dennie Ray Loden, appeals as of right from the judgment of the Roane County Criminal Court declaring him to be an Habitual Motor Vehicle Offender (HMVO) who is bar red from driving. He contends that res judicata bar red the trial court from declarin g such status after a prev ious HMVO petition based upon the same predicate convictio ns had been dismissed. We affirm the trial court.

In 1994, the state filed a petition to have the defendant declared an habitual offender based upon two pri or driving under th e influence (DUI) and one dri ving on a revoked license conv ictions. Two of the convi ctions were still on appeal. The trial court dismissed the petiti on in an order that states in pertinent part:

Based on the complaint of the State, the statements of counsel that two of the three convictions n ecess ary to declare the Defendant an Habitual Motor Vehicl e Offender are still on appeal, and the record as a whole the Court finds that the State has not carried its burd en under the statute and the complai nt is here by DISMISSED

.

After the two convicti ons were affirmed on appeal, the st ate brought another petition in 1996 that all eged the same three convic tions as its predicate. The trial court declared the defendant to be an habitual offender.

The defendant rightly notes that an HMVO action is civ il in nature and that civil procedural r

ules apply. See State v. Malady , 952 S.W.2d 440, 444 (Tenn. Crim. App. 1996); Everhart v. State , 563 S.W.2d 795, 79 6-97 (Tenn. Crim. App. 1978). 1 He argues that the trial court’s order constitutes an adjudication on the merits tha t bars a subsequent suit upon the same cl aim. He relies upon Rule 41.02, Tenn. R. Civ. P., which states in part:3 (3) Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any d ismissal not provided for in this Ru le 41, other than a dismissal forlack of jurisdiction or for improper v enue or for lack of an indispensable party, operates as an adj udicati on up on the merits.
In response, the state first notes the sparseness of the record, which contains only the 1994 petit ion and order of dismissal and the 1996 petition and judgment. It asserts that u pon such a record, there is no evidence that the defendant raised the issue of res judi cata in the trial court. Second, it argues that the w ording of the order specifies that it w as not an adjudication on the meri ts. Third, it argues tha

t res judicata does not apply beca use the convictions w ere not final and, thus, wer e not actually justiciabl e at the time of the first petition. Finally, it arg ues that a procedural rule should not be allow ed to frustrate the important purpo se and policy of the Habitual Motor Vehicle Offenders Act.

As for the state’s last arg ument, we question whether the doctrine of res judicata is a procedural rule that may be ignored to serve public polic y in some “ends justifying the means” fashi on. Res judicata is, it self, a rule of public policy aimed at quieting legal dis putes with reasonable ex pedition without being required to relitigate matters that should have been s ettled in former litigati on. See Jordan v. Johns , 168 Tenn. 525, 536-37, 79 S.W .2d 798, 802 (1935).

However, we ag ree with the state that under the record on appeal, the defendant has waived any r es judicata claim. Pursuant to Rule 8.03, Tenn. R. Civ . P., res judicata is an affirmativ e defense that must be specifically raised. Absent any record that such a defense was raised and litigated in the trial court, we will consider it waived. There is no t ranscript of any trial court hearing nor any

written response or pleading that reflects that the claim was presented to the trial court. In this respect, it was the defendant’s responsibi lity, as the appellant, to insure that the record on appeal4

contained all of the trial cour t actions and events needed to c onvey a fair, accurate a nd complete account of what transpi red relative to the is sue being appealed. See T.R.A.P. 24; State v. Groseclose , 615 S.W.2d 142, 147 (Tenn. 1981). Thus, even if the defendant did raise the matter in the trial court, the lack of a record on appeal of such matter requires us to pr esume that the trial court r uled correctly. See State v. Jones , 623 S.W.2d 129, 131 (Tenn. Crim. App. 1981).

In consideration of the foregoing and the record as a whole , the judgment of the trial court is affirmed.

_________________________ Joseph M. Tipton, Judge CONCUR:

__________________________ Gary R. Wade, Judge

__________________________ William M. Barker, Judge