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FILED

January 29, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

JOHN WAYNE SLATE, SR., ) C/A NO. 03A01-9809-CH-00299

 )

Petitioner-Appellant, )

 )

 )

v. ) APPEAL AS OF RIGHT FROM THE

 ) SEVIER COUNTY CHANCERY COURT

 )

 )

 )

JUDGE BEN W. HOOPER, II, and )

AL SCHMUTZER, JR., )

 ) HONORABLE TELFORD E. FORGETY,

Defendants-Appellees. ) CHANCELLOR

For Appellant For Appellees

JOHN WAYNE SLATE, SR. JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

Mountain City, Tennessee

MICHAEL E. MOORE

Solicitor General

HEATHER C. ROSS

Assistant Attorney General

Nashville, Tennessee

MEMORANDUM OPINION

AFFIRMED AND REMANDED Susano, J.
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This is a lawsuit filed by a prisoner in state custody

seeking the disbarment of the judge who tried him and the

district attorney general who prosecuted him. The court below

dismissed the plaintiff’s suit, finding that “these charges are

more appropriately brought under the procedures set forth in

Tenn.Code Ann. § 17-5-101 et seq. and/or under Supreme Court Rule

9.” The plaintiff appealed. We affirm, but for a reason

different from that expressed by the trial court.

The complaint in the instant case is essentially

identical to an earlier complaint filed by the plaintiff in the

same court. That complaint was also dismissed. On appeal, we

treated the plaintiff’s complaint as one for disbarment, and

affirmed in an opinion filed at Knoxville on February 27, 1998. 

See Slate v. Schmutzer and Hooper, 1998 WL 102072, C/A No. 03A01-

9708-CV-00369 (Tenn.App. 1998)(perm. app. denied by the Supreme

Court). The matters raised in the instant case are res judicata. 

The Supreme Court has recently explained that

[t]he term “res judicata” is defined as a

“[r]ule that a final judgment rendered by a

court of competent jurisdiction on the merits

is conclusive as to the rights of the parties

and their privies, and, as to them,

constitutes an absolute bar to a subsequent

action involving the same claim, demand or

cause of action.... [T]o be applicable, it

requires identity of cause of action, or

person and parties to action, and of quality

in persons for or against whom claim is

made.”

Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459

(Tenn. 1995)(quoting from BLACK’S LAW DICTIONARY 1172 (5th ed.

1979)). Or, stated another way, “res judicata bars a second suit
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Rule 10(b), Rules of the Court of Appeals, provides as follows:

The Court, with the concurrence of all judges

participating in the case, may affirm, reverse or

modify the actions of the trial court by memorandum

opinion when a formal opinion would have no

precedential value. When a case is decided by

memorandum opinion it shall be designated “MEMORANDUM

OPINION,” shall not be published, and shall not be

cited or relied on for any reason in a subsequent

unrelated case.

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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.” Richardson, 913 S.W.2d at 459. 

In the earlier suit, it was determined that the plaintiff could

not pursue disbarment of the defendants in a court proceeding. 

That issue, having been found adverse to the plaintiff in the

first suit, cannot be re-litigated in this action.

The judgment of the trial court is affirmed pursuant to

the provisions of Rule 10(b), Rules of the Court of Appeals.1

Costs on appeal are taxed to the appellant. This case is

remanded to the trial court for the collections of costs assessed

there, pursuant to applicable law.

__________________________

Charles D. Susano, Jr., J.

CONCUR:

_________________________

Houston M. Goddard, P.J.

_________________________

Herschel P. Franks, J.