FILED

April 2, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE 

 JANUARY 1998 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) No. 03C01-9702-CR-00075

 )

) Roane County

v. ) 

) Honorable E. Eugene Eblen, Judge 

)

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 General of Tennessee 

450 James Robertson Parkway

Nashville, TN 37243-0493

Charles E. Hawk

District Attorney General

and

Frank A. Harvey

Assistant District Attorney General

P.O. Box 703

Kingston, TN 37763

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton

Judge
1

 The c ourt of crim inal appea ls has juris diction ove r appea ls in HMV O action s. See

T.C.A. § 55-10-616.

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 barred from driving. He contends that res judicata barred the

trial court from declaring such status after a previous HMVO petition based upon the

same predicate convictions 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 prior driving under the influence (DUI) and one driving

on a revoked license convictions. Two of the convictions were still on appeal. The trial

court dismissed the petition 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 necessary to declare the

Defendant an Habitual Motor Vehicle Offender are still on

appeal, and the record as a whole the Court finds that the

State has not carried its burden under the statute and the

complaint is hereby DISMISSED. 

After the two convictions were affirmed on appeal, the state brought

another petition in 1996 that alleged the same three convictions as its predicate. The

trial court declared the defendant to be an habitual offender. 

The defendant rightly notes that an HMVO action is civil in nature and that

civil procedural rules apply. See State v. Malady, 952 S.W.2d 440, 444 (Tenn. Crim.

App. 1996); Everhart v. State, 563 S.W.2d 795, 796-97 (Tenn. Crim. App. 1978).1 He

argues that the trial court’s order constitutes an adjudication on the merits that bars a

subsequent suit upon the same claim. 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 dismissal

not provided for in this Rule 41, other than a dismissal for lack

of jurisdiction or for improper venue or for lack of an

indispensable party, operates as an adjudication upon the

merits. 

In response, the state first notes the sparseness of the record, which

contains only the 1994 petition and order of dismissal and the 1996 petition and

judgment. It asserts that upon such a record, there is no evidence that the defendant

raised the issue of res judicata in the trial court. Second, it argues that the wording of

the order specifies that it was not an adjudication on the merits. Third, it argues that res

judicata does not apply because the convictions were not final and, thus, were not

actually justiciable at the time of the first petition. Finally, it argues that a procedural

rule should not be allowed to frustrate the important purpose and policy of the Habitual

Motor Vehicle Offenders Act. 

As for the state’s last argument, we question whether the doctrine of res

judicata is a procedural rule that may be ignored to serve public policy in some “ends

justifying the means” fashion. Res judicata is, itself, a rule of public policy aimed at

quieting legal disputes with reasonable expedition without being required to relitigate

matters that should have been settled in former litigation. See Jordan v. Johns, 168

Tenn. 525, 536-37, 79 S.W.2d 798, 802 (1935).

However, we agree with the state that under the record on appeal, the

defendant has waived any res judicata claim. Pursuant to Rule 8.03, Tenn. R. Civ. P.,

res judicata is an affirmative 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 transcript 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 responsibility, as the appellant, to insure that the record on appeal
4

contained all of the trial court actions and events needed to convey a fair, accurate and

complete account of what transpired relative to the issue 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 presume that the trial court ruled 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