Whitaker v. Whirlpool Corp.

IN THE COURT OF APPEALS OF TENNESSEE FILED

AT NASHVILLE

________________________________________ March 16, 2000

KERRY WHITAKER, Cecil Crowson, Jr.

Appellate Court Clerk

Plaintiff-Appellant,

Davidson Chancery No. 98-2478-III

Vs. C.A. No. M1999-00231-COA-R3-CV

WHIRLPOOL CORP., JIM

TEASLEY, DOUG HAGEWOOD,

CLARA VAUGHN, DEBRA

DERBY, DR. VAUGHN ALLEN,

and LYNN ENGLAND, Tennessee

Department of Labor, Division

of Workers’ Compensation,

Defendants-Appellees.

_____________________________________________________________________

FROM THE DAVIDSON COUNTY CHANCERY COURT

THE HONORABLE ELLEN HOBBS LYLE, CHANCELLOR

Kerry Whitaker, Pro Se

Hooper & Zinn; David T. Hooper of Brentwood

For Appellee, Whirlpool, Hagewood, Teasley, Vaughn and Derby

C. J. Gideon, Jr.; Joe W. Ellis, II

Gideon & Wiseman of Nashville

For Appellee, Allen

Paul G. Summers, Attorney General and Reporter

E. Blaine Sprouse, Assistant Attorney General

For Appellee, England

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

DAVID R. FARMER, JUDGE

HOLLY KIRBY LILLARD, JUDGE

On August 14, 1998, plaintiff, Kerry Whitaker, acting pro se, filed his complaint

against defendant, Whirlpool Corporation, Tim Teasley, Doug Hagewood, Clara

Vaughn, Debra Derby, Dr. Vaughan Allen, and Lynn England of the Tennessee

Department of Labor Division of Workers Compensation. Plaintiff appeals the trial

court ‘s order dismissing his complaint.

The complaint styled, “Fraud, Fraudulent Concealment, Misrepresentation of the

Facts to the Chancery Court and Government Agency” sets out multiple facts, most of

which appear to be quotations from various documentary evidence and testimony

introduced in Whitaker’s previous workers compensation lawsuit against Whirlpool.

The complaint is somewhat disjointed and at times incoherent to the extent that it is

quite difficult to determine the specific allegations against the named defendants. In

addition to the complaint, Whitaker has filed numerous other pleadings with an

enormous amount of exhibits. From a review of the record, we determine that on May

24, 1993, Whitaker sustained a work-related back injury while employed by Whirlpool

Corporation at the Laverne, Tennessee plant. While undergoing treatment for his

injuries, Whitaker was seen on September 10, 1993, for an independent examination

and evaluation by Dr. Vaughn Allen. Dr. Allen diagnosed his condition as lumbar strain

and recommended a chronic exercise program. Dr. Allen put no restrictions on

Whitaker’s ability to work and sent a copy of his office note to W hirlpool’s workers

compensation carrier and to Winston Griner, M.D., who apparently was Whitaker’s

treating physician. It appears that Whitaker failed to report to work by September 27,

1993, and Hagewood, a manager for Whirlpool, informed Whitaker by registered letter

that his failure to report to work had been treated as a “quit.”

Whitaker filed his workers compensation suit in January, 1994, and on June 22,

1995, the Davidson County Chancery Court, after a nonjury hearing, found in favor of

Whitaker and awarded him twenty-five percent permanent partial impairment to the

body as a whole but denied an award of $25,000.00 in unauthorized medical expenses.

This order was not appealed and became a final judgment. Whirlpool satisfied the

judgment in full.

On August 17, 1998, Whitaker filed a pro se pleading in the Davidson County

Chancery Court, under the same docket number as the workers compensation case,

in which he sought to reopen his case against Whirlpool. The assertions in the

pleading are essentially that due to fraud, fraudulent concealment and

misrepresentation of the facts by Whirlpool, plaintiff’s attorney and the chancery court,

Whitaker was entitled to reopen the case. This pleading was dismissed by the court

by order entered on September 25, 1998.

The complaint in the instant case is virtually the same as the August 17, 1998

pleading with the exception of allegations concerning Whitaker’s attorney and the

involvement of the chancery court in connection with the alleged fraud.

Giving Whitaker’s complaint the most liberal construction possible, the

allegations against Whirlpool and the four employees, Teasley, Hagewood, Vaughn,

and Derby, are to the effect that Whirlpool falsified records which were used in the

defense of the workers compensation case resulting in a fraud committed against the

court. The allegations against Dr. Allen are that he participated in committing a fraud

against the court and gave false testimony. The allegation against Lynn England, the

workers compensation specialist with the Tennessee Department of Labor, is

apparently that she, based upon the information furnished to her, determined that

Whitaker bore the responsibility of losing his job by failing to return to work when he

was able to do so. The complaint seeks additional lost wages, medical expenses, job

reinstatement and punitive damages.

Dr. Allen filed a motion for summary judgment. Whirlpool, its four employees,

and Lynn England filed motions to dismiss pursuant to Tenn.R.Civ.P. 12. Whirlpool

and the four employees also filed a counterclaim against Whitaker, seeking damages

and to enjoin Whitaker from further actions based on the May 1994 injury.

On December 21, 1998, the trial court entered its memorandum and order

dismissing Whitaker’s complaint. The memorandum and order states:

Background

The genesis of the above-captioned lawsuit is another

lawsuit: Kerry Whitaker v. Royal Insurance Company, Civil

Action No. 94-1245-III(II) filed in Davidson County

Chancery Court. In that lawsuit the plaintiff filed a

complaint against Royal Insurance Company for workers’

compensation benefits allegedly attributable to an on-the -

job injury on May 24, 1993, at Whirlpool Corporation. On

June 22, 1995, the Honorable Robert S. Brandt entered an

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order in Part III Chancery Court awarding Mr. Whitaker

25% permanent partial impairment to the body as a whole.

Chancellor Brandt refused to award the plaintiff some

$25,000.00 for unauthorized medical expenses.

Additionally pertinent to the matters before this Court is that

Chancellor Brandt noted in his memorandum that the

plaintiff was “a long-term and apparently valued employee,

and an effort was made to have the plaintiff communicate

with the company. But, he did not. So he was terminated.”

The benefits awarded by Chancellor Brandt were paid in

full and the judgment was satisfied by Whirlpool

Corporation.

On August 17, 1998, the plaintiff filed a pleading pro

se under the same docket number 94-1245-III(II) in which

he asked the court to reopen his case against Whirlpool.

The plaintiff alleged perjury, fraud, misrepresentation and

fraudulent concealment in connection with Chancellor

Brandt allegedly “wrongly overlooking facts in favor of

Whirlpool Corporation” and alleged wrongful conduct of the

plaintiff’s attorney. The motion was heard by the

Honorable Carol McCoy on September 18, 1998. The

motion was determined to be without merit and was

dismissed.

On August 14, 1998, the petitioner filed the

complaint in the above-captioned action against Whirlpool

and four of its current employees as well as an action

against Dr. Vaughan Allen who examined the petitioner as

requested by his physician Dr. Winston Griner, and Lynn

England of the Department of Labor, Worker’s

Compensation Division. The complaint asserts fraud,

fraudulent concealment and misrepresentation of facts to

the chancery court and “government agency.” The plaintiff

asserts a claim for lost wages, payment of his medical

expenses, a desire to return to his job, back child support,

bills owed to third parties and punitive damages in the

amount of $6 million. Mr. Whitaker claims that Whirlpool

falsified records to have Dr. Allen state that Mr. Whitaker

failed to return to work when released to do so by Dr. Allen.

Mr. Whitaker’s claim against Lynn England is that she

found Mr. Whitaker was responsible for failing to return to

work and she relied upon Whirlpool’s allegedly falsified

records.

As noted above, the plaintiff filed a motion to reopen

the prior case which was dismissed by Chancellor McCoy.

The complaint in the above-captioned matter differs from

the motion to reopen only in two ways: (1) the present

complaint does not contain allegations of wrongdoing by

Chancellor Brandt and the plaintiff’s attorney and (2) the

prayer for relief and ad damnum have been expanded.

Presently before the Court are the motions of

defendant Vaughan A. Allen, Lynn England and Whirlpool

Corporation and its four employees for dismissal in the

above-captioned matter. Defendant Allen seeks dismissal

on a motion for summary judgment. Defendants England,

Whirlpool and the Whirlpool employees seek dismissal on

a motion to dismiss.

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Mr. Whitaker has argued vehemently in response to

the motions that the statements in Dr. Allen’s records and

depositions concerning his failure to return to work were

false and were used wrongfully by Whirlpool, its

employees, Dr. Allen and Lynn England such that Mr.

Whitaker was terminated from his job at Whirlpool.

After reviewing the entire record, the Court grants

the motions as follows.

Dr. Allen

First, with respect to Dr. Vaughan Allen, the Court

determines that the plaintiff’s complaint is barred by the

applicable statute of limitations and certainly by the statute

of repose. In his memorandum, Chancellor Brandt finds

that Dr. Allen examined the plaintiff once on September 10,

1993. Assuming the plaintiff is alleging malpractice by Dr.

Allen, the action is barred by Tennessee Code Annotated

section 29-26-116 which provides a one-year statute of

limitations for malpractice cases. In that the above-

captioned matter was tried before Chancellor Brandt on

January 31, 1995, the memorandum opinion adjudicating

the issues was filed April 27, 1995, and a final order was

entered on June 22, 1995, the plaintiff knew or should have

known, based on Dr. Allen’s deposition which was used in

the trial of this matter, of the malpractice he alleges in

connection with the worker’s compensation lawsuit.

Additionally, Tennessee Code Annotated section 29-26-

116(3) provides a three-year statute of repose. The plaintiff

did not file the above-captioned matter until August 14,

1998. Thus, the statute of repose also bars this action.

Lynn England

With respect to defendant England, the Court grants

the motion to dismiss. The complaint references actions

taken by Ms. England in writing a letter dated January 18,

1994. It is clear from the face of the complaint that Ms.

England was acting within the scope of her employment as

a workers’ compensation specialist for the Department of

Labor. The complaint contains no allegation of wilful,

malicious, criminal acts or omissions or acts for personal

gain by Ms. England. Under Tennessee Code Annotated

section 9-8-307(h), article I, section 17 of the Tennessee

Constitution, and Tennessee Code Annotated section 20-

13-102(a), Ms. England is immune from suit under the

circumstances alleged by the plaintiff. The complaint

against Ms. England should additionally be dismissed

because the plaintiff has failed to state allegations

concerning intentional or negligent misrepresentations of

facts and reliance and damages on which to premise his

claim of fraud and misrepresentation. No such allegations

are contained in the complaint. Simply stated, the

complaint fails to state a claim upon which relief can be

granted as to fraud, misrepresentation or fraudulent

concealment by Lynn England.

Finally, as to Ms. England, the statute of limitations

for tortious activity resulting in injury to the person is one

5

year after the cause of action has accrued. Tenn. Code

Ann. § 28-3-104(1). The action which the plaintiff

complains of is Ms. England writing her letter on January

18, 1994. Any cause of action which would arise from Ms.

England’s writing the letter expired before the date of the

filing of the complaint in this matter - August 14, 1998.

Whirlpool and Employees

As to Whirlpool and its employees, the Court

dismisses the plaintiff’s claims as barred by the one year

and/or three year statutes of limitation, Tennessee Code

Annotated sections 28-3-104, 105. The most recent events

described in the plaintiff’s complaint occurred no more

recently than the spring of 1995. This case was filed in

August 1998. The complaint appears to allege injury to the

person, but even if it were construed to allege injury to

property, both are barred by the one or three year statute

of limitations.

The Court further grants the motion of Whirlpool and

its employees to dismiss on the grounds of res judicata and

collateral estoppel. The parties and the issues of damages

resulting from the on the job injury were litigated before

Chancellor Brandt in the worker’s compensation case and

then considered by Chancellor McCoy in the motion to

reopen.

Finally, this action is barred by the exclusive remedy

doctrine of Tennessee Code Annotated section 50-6-108.

It is therefore ORDERED that the motion for

summary judgment as to Dr. Vaughan Allen is granted and

the plaintiff’s cause of action against Dr. Vaughan Allen is

dismissed with prejudice.

It is further ORDERED that the motions to dismiss

filed by defendant Lynn England, Whirlpool Corporation,

Tim Teasley, Doug Hagewood, Clara Vaughn and Debra

Derby are granted, and the plaintiff’s causes of action

against these individuals are dismissed with prejudice.

Still pending before the Court is the counterclaim of

Whirlpool and its employees seeking damages and

injunctive relief to bar Mr. Whitaker from filing further

actions arising out of the on the job injury. The plaintiff has

served on all defendants interrogatories and requests for

production of documents. The Court rules that defendants

England and Allen are not required to respond to the

discovery in that the Court has determined, as a matter of

law, that the plaintiff’s causes of action against these

defendants require dismissal. No information sought in the

interrogatories or requests for production of documents

would alter or affect that the causes of action against these

defendants are barred as a matter of law. However, as to

the discovery served on defendant Whirlpool and its

employees, they are required to respond to that discovery

given the pendency of the counterclaim.

Subsequently, the four Whirlpool employees voluntarily dismissed their counterclaim

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and the trial court dismissed Whirlpool’s counterclaim for failure to state a claim upon

which relief can be granted.

Mr. Whitaker has appealed pro se, and although he fails to articulate an issue

in his brief, we perceive the issue to be:

Whether the trial court erred in dismissing plaintiff’s

complaint against defendants, Whirlpool, Doug Hagewood,

Jim Teasley, Clara Vaughn, Deborah Derby, Dr. Vaughan

Allen, and Lynn England?

Whirlpool also appeals and presents the issue for review:

Whether the trial court erred in dismissing the counterclaim

of Whirlpool Corporation against Kerry Whitaker?

We note at the outset that Whitaker represented himself in the trial court and is

representing himself in this Court. Pro se litigants are entitled to fair and equal

treatment. Childs v. Duckworth, 705 F.2d 915 (7th Cir. 1983). Pro se litigants are not,

however, entitled to shift the burden of litigating their case to the courts. See Dozier v.

Ford Motor Co., 702 F.2d 1189 (D.C. Cir. 1983). Pro se litigants are not excused from

complying with the same substantive and procedural requirements that other

represented parties must adhere to. See Ervin v. City of Clarksville, 767 S.W.2d 649

(Tenn. Ct. App. 1988). From our review of this record, it appears abundantly clear that

the trial court was extremely liberal in the construction of Whitaker’s pleadings. This

Court will do likewise in considering his brief, which often fails to comply with the rules

concerning correct citations to the record. Although we have no duty to exhaustively

search this record to verify unsupported allegations in a brief, McReynolds v. Cherokee

Ins. Co., 815 S.W.2d 208, 211 (Tenn. Ct. App. 1991), we have been liberal in our

interpretation of Whitaker’s brief.

We will now consider the issues as to the individual defendants.

DR. VAUGHAN ALLEN

The trial court granted Dr. Allen’s motion for summary judgment. A motion for

summary judgment should be granted when the movant demonstrates that there are

no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment

bears the burden of demonstrating that no genuine issue of material fact exists. Bain

7

v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the

court must take the strongest legitimate view of the evidence in favor of the nonmoving

party, allow all reasonable inferences in favor of that party, and discard all

countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our

Supreme Court stated:

Once it is shown by the moving party that there is no

genuine issue of material fact, the nonmoving party must

then demonstrate, by affidavits or discovery materials, that

there is a genuine, material fact dispute to warrant a trial.

In this regard, Rule 56.05 provides that the nonmoving

party cannot simply rely upon his pleadings but must set

forth specific facts showing that there is a genuine issue of

material fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions

drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900

S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no

presumption of correctness regarding a trial court's grant of summary judgment. Bain,

936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary

judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954

S.W.2d 722, 723 (Tenn. 1997).

The trial court construed the complaint to be a charge of medical malpractice

against Dr. Allen and that the claim was barred by the provisions of T.C.A. § 29-26-

116(a)(1) and (3) (1980) which provide:

29-26-116. Statute of limitations - Counterclaim for

damages. - (a) (1) The statute of limitations in malpractice

actions shall be one (1) year as set forth in § 28-3-104.

* * *

(3) In no event shall any such action be brought more than

three (3) years after the date on which the negligent act or

omission occurred except where there is fraudulent

concealment on the part of the defendant in which case the

action shall be commenced within one (1) year after

discovery that the cause of action exists.

Whitaker knew or should have known of any alleged malpractice on the part of

Dr. Allen at least by the time the final order was entered under the workers

compensation case on June 22, 1995. The complaint in the instant case was filed

8

August 14, 1998, well beyond the one-year limitation period and the three-year statute

of repose. The trial court correctly found this cause of action barred. We will comment

later in this opinion on perhaps a more compelling reason to sustain the trial court’s

granting of summary judgment to Dr. Allen.

LYNN ENGLAND

This defendant filed a motion to dismiss pursuant to Tenn.R.Civ.P. 12.02 (6) for

failure to state a claim upon which relief can granted. In Humphries v. Westend

Terrace, Inc., 795 S.W.2d 128 (Tenn. Ct. App. 1990), this Court said:

A motion to dismiss pursuant to Rule 12.02(6), Tenn. R.

Civ. P., for failure to state a claim upon which relief can be

granted is the equivalent of a demurrer under our former

common law procedure and, thus, is a test of the

sufficiency of the leading pleading. Cornpropst v. Sloan,

528 S.W.2d 188, 190, 93 A.L.R.3d 979 (Tenn. 1975).

Such a motion admits the truth of all relevant and material

averments contained in the complaint but asserts that such

facts do not constitute a cause of action. Cornpropst, 528

S.W.2d at 190. A complaint should not be dismissed upon

such motion “unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim that

would entitle him to relief.” Fuerst v. Methodist Hospital

South, 566 S.W.2d 847, 848 (Tenn. 1978). In considering

whether to dismiss a complaint for failure to state a claim

upon which relief can be granted, the court should construe

the complaint liberally in favor of the plaintiff taking all of

the allegations of fact therein as true. Huckeby v.

Spangler, 521 S.W.2d 568, 571 (Tenn. 1975).

Id. at 130. See also Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997).

The complaint with its exhibits shows on its face that England wrote a letter on

behalf of the department of labor in her position as a workers compensation specialist.

There is no allegation of willful, malicious, or criminal acts on her part, and she is

entitled to the immunity pursuant to T.C.A. § 20-13-102 (a) (1994), which provides:

20-13-102. Actions against state prohibited. - (a) No court

in the state shall have any power, jurisdiction, or authority

to entertain any suit against the state, or against any officer

of the state acting by authority of the state, with a view to

reach the state, its treasury, funds, or property, and all such

suits shall be dismissed as to the state or such officers, on

motion, plea, or demurrer of the law officer of the state, or

counsel employed for the state.

A suit against a state official in his or her official capacity is a “suit against the state,”

and therefore must be brought in compliance with Article I, Sec. 17 of the Tennessee

Constitution. Cox v. State, 217 Tenn. 644, 399 s.W.2d 776 (1965). Exclusive

9

jurisdiction for Whitaker’s claim against the state is vested in the Tennessee Claims

Commission, T.C.A. § 9-8-307 (1999). The trial court correctly dismissed the claim

against England.

WHIRLPOOL CORPORATION AND

THE INDIVIDUALLY NAMED EMPLOYEES

The trial court dismissed Whitaker’s complaint as to these defendants because

the action is barred by the one-year and/or three years statutes of limitations. T.C.A.

§ § 28-3-104 and 105 respectively. We agree with the trial court concerning this reason

for dismissal except as to allegations of fraud. Thus, if we construe the complaint as

a claim for retaliatory discharge, clearly the one-year statute of limitation bars the

action. Headrick v. Union Carbide Corp., 825 S.W.2d 424 (Tenn. Ct. App. 1991).

The complaint does not appear to comply with Tenn.R.Civ.P. 9.02, requiring that

the circumstances constituting fraud must be stated with particularity. However, if we,

by extreme liberalism, construe Whitaker’s allegations to comply with the rule, the

complaint still must fail in its entirety. Whitaker seeks in his complaint lost wages and

medical expenses. Therefore, what Whitaker is seeking is additional relief pertaining

to his workers compensation suit. This suit is, in essence, a suit to set aside or modify

a final judgment in the workers compensation suit and is governed by the law

applicable to such a proceeding. See Tigrett v. Union Planters Nat’l Bank, 973 S.W.2d

208 (Tenn. Ct. App. 1997); Schorr v. Schorr, 1996 WL 148613 (Tenn. Ct. App. 1996).

Generally, a party may file an independent action to set aside a judgment only

under unusual and exceptional circumstances and then only where no other remedy

is available or adequate. Jerkins v. McKinney, 533 S.W.2d 275, 281 (Tenn. 1976). In

an independent action to set aside a judgment on the basis of fraud, the complaining

party must prove extrinsic as opposed to intrinsic fraud. New York Life Ins. Co. v.

Nashville Trust Co., 200 Tenn. 513, 517-21, 292 S.W .2d 749, 751-53 (1956), Medlock

v. Ferrari, 602 S.W.2d 241, 245-46 (Tenn. Ct. App. 1979); Noll v. Chattanooga Co., 38

S.W. 287, 290-91 (Tenn. Ch. App. 1896)(aff’d orally Oct. 28, 1896). The distinction

between intrinsic and extrinsic fraud existed at common law, id., and is maintained

today, both under the Rules of Civil Procedure and in case law. Tenn.R.Civ.P. 60.02

(Michie 1999); Stax v. Saunders, 812 S.W.2d 587, 592 (Tenn. Ct. App. 1990); Brown

10

v. Raine, 611 S.W.2d 594, 597 (Tenn. Ct. App. 1980).

In discussing the fundamentals of intrinsic fraud and extrinsic fraud and the

application of these principles to cases such as the case at bar, this Court in Schorr v.

Schorr, 1996 WL 148613 (Tenn. Ct. App. 1996) said:

Prior to the adoption of the Tennessee Rules of Civil

Procedure, a party seeking to set aside a judgment on the

basis of intrinsic fraud was required to prove the fraud

either at trial, in a motion for a new trial, or on appeal. Noll,

28 S.W. at 290-91. Upon completion of the appellate

process, a party could no longer seek to set aside a

judgment on the basis of intrinsic fraud:

The trial is his opportunity for making the

truth appear. If, unfortunately, he fails, being

overborne by perjured testimony, and if he

likewise fails to show the injustice that has

been done him on motion for a new trial, and

the judgment is affirmed on appeal, he is

without remedy.

Id. at 291. This rationale is consistent with fundamental

principles of jurisprudence, which state: "Material facts or

questions which were in issue in a former action and were

there admitted or judicially determined, are conclusively

settled by a judgment rendered therein, and such facts or

questions become res judicata and may not again be

litigated in a subsequent action brought between the same

parties or their privies." Medlock, 602 S.W.2d at 246.

When the Tennessee Rules of Civil Procedure were

adopted, the requirement that proof of intrinsic fraud be

raised during trial or appeal was softened. Under the

current rule, a party may seek to set aside a former

judgment on the basis of intrinsic fraud during the first year

following entry of the final judgment. Tenn.R.Civ.P.

60.02(2).

Proof of extrinsic fraud, on the other hand, is not

now required, nor has it ever been required, to be proven

during the initial trial or appeal of the case. Although the

characteristics of intrinsic and extrinsic fraud are somewhat

amorphous, it is generally held that extrinsic fraud "consists

of conduct that is extrinsic or collateral to the issues

examined and determined in the action," Thomas v.

Dockery, 33 Tenn. App. 695, 702, 232 S.W.2d 594, 598

(1950), while intrinsic fraud is fraud within the subject

matter of the litigation, such as forged documents produced

at trial or perjury by a witness. Id. at 702, 598. In Noll, the

court further examined the distinctions between these

different types of fraud:

What, then, is an extrinsic or collateral fraud,

within the meaning of this rule? Among the

instances given in the books are such as

these: Keeping the unsuccessful party away

from the court by a false promise of a

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compromise, or purposely keeping him in

ignorance of the suit; or where an attorney

fraudulently pretends to represent a party,

and connives at his defeat; or, being regularly

employed, corruptly sells out his client's

interests. U.S. v. Throckmorton, 98 U.S. 65,

66, and authorities cited.

Id. at 291(quoting Pico v. Cohn, 91 Cal. 129,133, 25 Pac.

970, 271, 27 Pac. 537 (1891)). In Noles v. Earhart, 769

S.W.2d 868, 874 (Tenn. 1988), this Court stated “extrinsic

fraud involves deception as to matters not at issue in the

case which prevented the defrauded party from receiving

a fair hearing.” (Emphasis supplied). See also, Keith v.

Alger, 114 Tenn (6 Cates) 1, 24-25 (1904); Stacks, 812

S.W.2d at 592; Brown, 611 S.W.2d at 597; Thomas, 33

Tenn. App. at 702-03, 232 S.W .2d at 598 (1950).

The reason for the common law distinction between

intrinsic and extrinsic fraud, and the reason that the

distinction is maintained in Tenn.R.Civ.P. 60, is grounded

in the need for finality of judgments:

The wrong [caused by intrinsic fraud] in such

a case is, of course, a most grievous one;

and no doubt the legislature and the courts

would be glad to redress it if a rule could be

devised that would remedy the evil without

producing mischief far worse that the evil

being remedied. Endless litigation, in which

nothing was ever finally determined, would

be worse than occasional miscarriages of

justice; and so the rule is that a final

judgment cannot be overruled merely

because it can be shown to have been based

on perjured testimony, for if this could be

done once, it could be done again and again,

ad infinitum.

Noll, 38 S.W. at 291. We emphasize that, although the

purpose of Tenn.R.Civ.P. 60 is to "alleviate the effect of an

oppressive or onerous final judgment," Killion v. Tennessee

Department of Human Services, 845 S.W.2d 212, 213

(Tenn. 1992), the rule is equally aimed at striking a balance

between the competing interests of justice and finality.

Banks v. Dement Constr. Co. Inc., 817 S.W.2d 16, 18

(Tenn. 1991).

Id. at 3, 4.

If we construe Whitaker’s complaint as allegations of fraud, we must from the

contents of the complaint consider the fraud as intrinsic fraud.

As early as 1896, the courts of this state recognized that under the common law

a judgment may be set aside only for extrinsic fraud. We find instructive a statement

made by the Tennessee Court of Chancery Appeals:

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And we think it is settled beyond controversy that a decree

will not be vacated merely because it was obtained by

forged documents or perjured testimony. The reason of

this rule is that there must be an end of litigation; and when

parties have once submitted a matter, or have had the

opportunity of submitting it, for investigation and

determination, and when they have exhausted every

means for reviewing such determination in the same

proceeding, it must be regarded as final and conclusive,

unless it can be shown that jurisdiction of the court has

been imposed upon, or that the prevailing party has, by

some extrinsic or collateral fraud, prevented a fair

submission of the controversy.

Noll v. Chattanooga Co., 38 S.W. at 290-91 (orally aff’d by S.Ct. Oct. 28, 1896).

Insofar as Whitaker’s complaint might be construed to allege a cause of action

for perjury in the workers compensation proceeding, this cause of action must also fail.

The law in this jurisdiction does not recognize a civil action for perjury or conspiracy to

commit perjury. Lackey v. Carson, 886 S.W.2d 232 (Tenn. Ct. App. 1994); Medlock,

supra.

Defendant, Whirlpool, asserts in its issue for review that the trial court erred in

dismissing its counterclaim for failure to state a claim upon which relief can be granted.

The counterclaim seeks to enjoin Whitaker from filing any further proceeding against

Whirlpool arising out of his injury in May of 1994. The trial court dismissed the

counterclaim for injunctive relief finding that it failed to allege that Whitaker had created

a history of vexatious litigation for the purpose of annoyance or embarrassment to

Whirlpool and that his action was not likely to lead to a practical result. The trial court

also declined to award Whirlpool damages in this action for failure of the counterclaim

to allege improper motive or intent.

43A C.J.S. Injunctions, § 47 (1978) states:

It is generally held, whether the litigation complained

of is numerous actions between the same parties or

numerous actions brought by many against one, that equity

may enjoin vexatious suits, not brought in good faith and

instituted for annoyance or oppression or to cause

unnecessary litigatio n, and su ch power exi sts

independently of the power to prevent a multiplicity of

actions.

Actions, however, are not necessarily vexatious

because they are numerous, and a clear and substantial

case must be established to authorize a court of equity to

enjoin suits on the grounds that they are vexatious and

oppressive. One may not be enjoined from protecting and

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enforcing his rights by lawful means, unless his acts to that

effect are done or threatened unnecessarily, not really for

the purpose of protecting his rights, but maliciously to vex,

annoy, and injure another.

We agree with the trial court in its dismissal of the counterclaim. In the first

place, we are not sure at this point that Whitaker’s action would constitute “numerous

lawsuits.” Moreover, the trial court found the pleading deficient as to its failure to allege

malice, vexation, and a willful attempt to annoy and injury Whirlpool. Should the

decision of this Court become the final decision in this matter, future action on the part

of Whitaker concerning the same matter could produce an undesirable result for

Whitaker if pursued by W hirlpool.

The order of the trial court dismissing plaintiff’s complaint is affirmed, and this

case is remanded to the trial court for such further proceedings as may be necessary.

Costs of the appeal are assessed against the appellant, Kerry Whitaker.

_____________________________

W. FRANK CRAWFORD, P.J., W.S.

CONCUR:

____________________________

DAVID R. FARMER, JUDGE

____________________________

HOLLY KIRBY LILLARD, JUDGE

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