# FILED
April 30, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

EARLENE POLYAK, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9803-CH-00133 VS. ) ) Lawrence Chancery ) No. 7951-96 and 7736-95 DORA LEE HULEN and ) WILMA LE SNANSKY, ) ) Defendants/Appellees. )
APPEALED FROM THE CHAN CERY COUR T OF LAWRENCE COU NTY AT LAWRENCEBURG, TENNESSEE THE HONORABLE JIM T. HAMI LTON, JUDGE

EARLENE POLYAK 3179 Midd lefield Drive Trenton, Michigan 48183 Pro Se/Plaintiff/Appellant DALTON MOUNGER 806A South Garden Street Columbia, Tennessee 38402-1468 Attorney for Defendants/Appellees

REVERSED AND REMAND ED

BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR: KOCH, J. COTTRELL, J.- 2 - 

## O P I N I O N

This family

dispute over t he partition of a forty- two acr e fa rm i n Lawrence County is well into its third decade. The Chancer

y Court of Lawrence County granted judgment on the pleadi ngs and ordered the property sold for

partition. We reverse and remand for f urther proceedings.

I.

Rena Hulen, the owner of the farm died in 1976. She left her property in e qual s hares to her three chil dren, Earle ne Polyak, Frank Hule n, and Wilma Lesnansky. The farm contained a smal l house and a barn.

In 1983 Mr. Hulen and Ms. Lesnansky filed a complaint in the chancery Cou rt of Lawrence County asking that the farm be sold for partition. Ms. Polyak’s defense has always been that th e parties orally agreed to partition the property so that she would get the house and approximately ten acres on the front, Ms. Lesnansky would get a site for her son to bui ld a house to the north of the farmhouse, a nd Mr. Hulen would get some of the property on the back next to his own farm. Apparently Ms. Polyak

lost that battle (the order from that case is not in the record), and she set out on a journey

through the federal courts, seeking to enjoin the sale of the property and to recover damages for a ho st of civil rights violations. The course of this journey is described in part in an or der from the Sixth Circuit Court of Appeals filed on August 13, 1993: This case and eight other s presently before the

court (92-6345/6525; 92-6347/6528; 6526; 6527; 6529; and 6530) had their origin in 1976 when Mrs. Poly ak and her two siblings inhe rited from their mother a family farm in Lawrence County, Tenness ee, as tenants in common. Mrs. Polyak’s siblings sought and obtaineda partition sale of the property

. Mrs. Polyak objected to the manner in which the farm wasd ivided and began protrac ted state court proceedings. Faili ng t o prevail in state court litigation, Mrs. Po lyak began her assault on the partition sale in federa l- 3 - cou rt i n 1985. She sought monetary damag es and an order setting aside the partition sale. The defendants in this case are Mrs. Polya k’s brother, Frank Hul en, and her sister, Wilma Lesnansky. The def endants have long ago stopped filing briefs in res ponse. Mrs. Polyak is appealing from an order entered by the district court on October 6, 1992 , in wh ich the court held that it would not consider any further submissions by Mrs. Polyak to relitig ate any issue regarding the partie

s or the property involv

ed in the partition sale.

In December of 1995 Ms. Polyak filed a complaint in the Chancery Court of Lawrence Cou nty against Ms. Lesnansky and Mr. Hulen. The basis for the complaint was the “settl ement by agreement” of the parties in 1976. The complaint wenton to describe expenses Ms. Polyak had incurred i n working on the house, how her appeal of the order of sale was inadvertently lost, how the

tobacco allotment was transferred to another (unspecified)farm, and how the whole or deal had caused her stress, anxie ty, and embarrassment. She prayed for $250,000 in com pensatory damages, $250,000 in punitive damages, and a deed to the house and ten acres.

In Februaryof 1996 Mr. Hulen and Ms. Lesnansky, acti ng pro se, moved to dismiss the complaint under Rule 12.06, Tenn. R. Civ.Proc., for failure to state a claim. The court entered an orde ron February 21, 1996 contai ning the following findings: It appears to the Cour t that th e plaintiffwill pursue any means to re-litigate

the pr evious and related issues that were involved or which ar ose out of the s ame tran sactions and occurrences that wer e involved i n lawsuits already adjudicated in this Court, including, in this instance, attempting to bring in as defendants the plainti ffs in the original lawsuit in which the plaintiff herein, Earlene Polyak, was a defendant. That lawsuit was filed in the Chan cery Court of Lawren ce County, Tennessee, bearing Action No. 1974. The Court takes judicial notice from the public record that plaintiff herein, Earlene Polyak, has already litiga te d this dispute with the defendants named herein, in this and sev eral othe r court s, and the avermentstherein appear to be largely the same as in this particular

case. The original case was appealed to the Tennessee Court of Appea ls and to the Tennessee SupremeCourt. As mentioned, the dispute has also been filed by plai ntiff in numerous courts across the United States of America and h as even been pursued to the United States Supre me Court. It appears from the record, the Court’s judicial noti ce of prior matters of public r ecord, and defendants’ motion that plaintiff’s action is frivolous,- 4 - filed in bad faith, vexatio us and otherwise should be dismissed, fails to state a claim upon which reli ef can be granted and is barred. T he Court, therefore, on defendants’ Mo tion, and also sua sponte , dis mis ses this lawsuit fil ed by the plainti ff, Earlene Polyak, agai nst the defendants, Frank Hulen and Wilma Lesnansky. Court costs ar e taxed to plainti ff.

In May of 1996 Ms. Lesnansky and Dora Lee Hul en filed a complaint in the ChanceryCourt of Lawrence County seeking a sale of the farm for partition. The complaintalleged that Frank Hulen died on April 11, 1996 and that Dora Lee Hulen was the sole beneficiary under his will.

Ms. Polyak fil ed an ans we r and c ounterclai m containing the same allegations

sh e pres sed in the complaint just recently dismissed. She then filed a notice of removal in th e Co lumbia Division of the Un ited States District C ourt. The district court remanded the state claims to the chancery co u rt after dismissing the federal clai ms in the counterclaim.

In the meantime, Ms. Hulen and Ms. Lesnansky had

moved to dismiss the counterclaim for failing to state a clai m on which relief can be granted. They also moved for judgment on the pleadings. On February 10, 1998 the chancellor entered
an order dis mis sing the counterclaim and an other order granting judgment on the plead ings. The next day the chancello r entered an order orderin g the clerk and master to sell the property described in the complaint.

The t wo c ases have been consolidated on appeal. Both cases were disposed of on motions to dismis s, eith er for failure to state a claim under Rule 12.02(6), Tenn. R. Civ. Proc. or for judgment on the pleadings under Rule 12.03. Our problem stems from the fact that the chancellor sustained both motions on the gr ound of res judicata, but the recor d on appeal does not contain the support for that ruling. In fact, the d efense of re s judicata has no t even been raise d in either proce eding.As we said in Gregory v. Gregory , 803 S.W.2d 242 (Tenn. App. 1990), the defense must be pled and the party r aising the defense must prov e it. “To carry that burden, the party rai sing the defense must generall y putin evidence the record
or a copy of the record of the former case . . . . If the record do es not conclusively show that a particular matter w as determined in a former proceeding, the party relying
on res judicata as a defense must supplement the record by other proof.” Id. at 244.

We have also searched the records of

this court for evidence on which
we could base a decision, but we have only found evidence that Ms. Polyak attempted to appeal a 1983 decision and the appeal was dismissed for th e lack of a final judgment. Therefore, on the basis of what w e have before us, we cannot s ustain a judgmenton the pleadings or a judg ment of dismissal for failure to state a claim. On remand the appellees may be able to establish a record showing th eyare entitled to the relief sought.

The j udgments entered in the two cases from the lower court are reversed and the causes are remanded to the Chancery Court of Lawrence County for further proceedings. Tax the costs on appeal to the ap pellees.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ PATRICIA J. COTTRELL, JUDGE