Valenen Collins v. Sams East, Inc.

03/13/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 21, 2018 Session

VALENEN COLLINS v. SAMS EAST INC.

Appeal from the Circuit Court for Shelby County

No. CT-003667-16 Rhynette N. Hurd, Judge

___________________________________

No. W2017-00711-COA-R3-CV

___________________________________

Appellant appeals the dismissal of this action on the ground of res judicata. We hold that

an essential element of res judicata—that the underlying judgment was rendered by a

court of competent jurisdiction—is not met in this case. Here, the court that rendered the

judgment relied upon lacked subject matter jurisdiction due to the doctrine of prior suit

pending. The trial court’s judgment of dismissal is therefore reversed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

J. STEVEN STAFFORD, P. J.,W.S., delivered the opinion of the court, in which FRANK G.

CLEMENT, P.J., M.S., and BRANDON O. GIBSON, J., joined.

John R. Johnson, Memphis, Tennessee, for the appellant, Valenen Collins.

Russell E. Reviere and W. Christopher Frulla, Memphis, Tennessee, for the appellee,

Sams East, Inc.

OPINION

BACKGROUND

This appeal requires consideration of two separate actions, both of which were

originally filed in Shelby County General Sessions Court. The first action was filed on

November 20, 2013 (“First Case”), alleging that Plaintiff/Appellant Valenen Collins

(“Appellant”) was injured at the premises owned by Defendant/Appellee Sams East, Inc.

(“Appellee”). The First Case was set for trial on January 13, 2014, but a judgment of

dismissal without prejudice was entered the same day when Appellant did not appear.

Appellant thereafter retained counsel, who filed a motion to set aside the dismissal of the

First Case on January 23, 2014. Appellee responded in opposition to the motion, but the

motion was not immediately adjudicated by the general sessions court.

On February 18, 2015, Appellant filed a second civil warrant in the Shelby County

General Sessions Court alleging the same cause of action (“Second Case”). The Second

Case alleged that the First Case was dismissed by final order on February 19, 2014,

apparently due to an incorrect notation by the general sessions court clerk. Eventually, a

trial occurred in the Second Case, and the general sessions court rendered a verdict for

the defense.1 Appellant appealed the Second Case to the circuit court; the circuit court

entered an order on May 27, 2016, dismissing the Second Case based upon the expiration

of the statute of limitations. According to Appellant, after learning that the motion to set

aside in the First Case had yet to be adjudicated, Appellant filed a motion to alter or

amend the judgment in the Second Case, which was eventually denied by the circuit

court.2 No appeal was taken from the trial court’s ruling in the Second Case.

Following the dismissal of the Second Case, Appellant returned to the First Case

and requested that the general sessions court rule on the motion to set aside. The motion

was eventually heard on August 24, 2016. On the same day, the general sessions court

denied the motion. The following day, Appellant filed an appeal of the First Case to the

circuit court. Appellee thereafter filed a motion to dismiss on the basis of res judicata,

arguing that the issues sought to be litigated in the First Case had been previously

decided by final order in the Second Case. Appellant responded that the trial court in the

Second Case lacked subject matter jurisdiction to decide the case because of prior suit

pending, thereby negating an essential element of the doctrine of res judicata.

The trial court granted the motion to dismiss on the basis of res judicata. The trial

court specifically found that the doctrine of prior suit pending did not apply because the

First Case was final at the time the Second Case was filed because the motion to set aside

filed in the First Case did not affect the finality of the judgment or suspend its operation.

Appellant thereafter filed a timely appeal to this Court.

1

It does not appear that any proof was presented at the trial.

2

This motion and the order of denial are not included in the record on appeal, as neither was

attached to Appellee’s later motion to dismiss on the basis of res judicata. Nevertheless, both Appellee’s

motion to dismiss and Appellant’s brief state that a motion to alter or amend the circuit court’s ruling in

the Second Case was filed and denied. As such, the parties do not dispute that a final judgment was

rendered in the Second Case. See generally Jackson v. Smith, 387 S.W.3d 486, 493 (Tenn. 2012)

(holding that res judicata may be found in the absence of a properly supported petition where the parties

concede that a final judgment exists).

2

ISSUES PRESENTED

Appellant raises three issues on appeal, which are taken from her brief and slightly

restated:

1. Did the trial court err in granting Appellee’s motion to dismiss Appellant’s

appeal from general sessions court based upon the principle of res judicata?

2. Did the trial court err in failing to recognize that the doctrine of prior

suit pending bars the second suit between the parties?

3. Did the trial court err in finding that the motion to set aside dismissal

did not operate to toll the time within which an appeal could be filed to

circuit court, where Tennessee Code Annotated section 16-15-727

specifically provides that the time for appeal is tolled during the pendency

of the motion?

In response, Appellee asserts that Appellant’s challenge to the dismissal is waived and

that this appeal is frivolous.

ANALYSIS

This appeal concerns the trial court’s decision to dismiss Appellant’s case based

upon the doctrine of res judicata. “A trial court’s decision that a claim is barred by the

doctrine of res judicata or claim preclusion involves a question of law which will be

reviewed de novo on appeal without a presumption of correctness.” Jackson v. Smith,

387 S.W.3d 486, 491 (Tenn. 2012) (citing In re Estate of Boote, 198 S.W.3d 699, 719

(Tenn. Ct. App. 2005)). In order to determine whether res judicata is applicable in this

case, we must also consider the doctrine of prior suit pending. Like res judicata, the

applicability of the prior suit pending doctrine is a question of law that we review de

novo on the record, with no presumption of correctness regarding the trial court’s

judgment. Wiley v. Williams, No. E2005-02518-COA-R3-CV, 2006 WL 929264, at *4

(Tenn. Ct. App. Apr. 10, 2006) (citing Fidelity & Guaranty Life Ins. Co. v. Corley, No.

W2002-02633-COA-R9-CV, 2003 WL 23099685 at *3 (Tenn. Ct. App. Dec. 31, 2003)).

Here, the trial court concluded that the First Case was barred by the final

resolution on the merits of the Second Case under the doctrine of res judicata. In order to

establish the defense of res judicata, the party asserting the defense must show:

(1) that the underlying judgment was rendered by a court of competent

jurisdiction, (2) that the same parties or their privies were involved in both

suits, (3) that the same claim or cause of action was asserted in both suits,

and (4) that the underlying judgment was final and on the merits.

3

Jackson, 387 S.W.3d at 491 (citing Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App.

1998)). The parties do not dispute that the First Case and Second Case shared the same

parties and claims or that the judgment in the Second Case was final and on the merits.

See generally Hippe v. Miller & Martin, PLLC, No. M2014-01184-COA-R3-CV, 2015

WL 2257175, at *3 (Tenn. Ct. App. May 12, 2015), perm. app. denied (Tenn. Sept. 16,

2015) (holding that a dismissal on the ground of the expiration of the statute of

limitations was an adjudication on the merits). Rather, it appears that the only dispute in

this case regarding the applicability of the doctrine of res judicata concerns whether the

underlying judgment sought to have preclusive effect “was rendered by a court of

competent jurisdiction.” Jackson, 387 S.W.3d at 491. Black’s Law Dictionary defines

“competent jurisdiction” as “[a] court’s power to decide a case or issue a decree[.]”

Black’s Law Dictionary 927 (9th ed. 2009); see also Lien v. Couch, 993 S.W.2d 53, 56

(Tenn. Ct. App. 1998) (quoting Restatement (Second) of Judgments § 26(1)(c) cmt. c

(1982) (noting that the general rule against relitigation of a claim is inapplicable when

there were “formal barriers” that prevent adjudication of all the parties’ claims in the

court whose judgment is sought to bar subsequent litigation))

As an initial matter, Appellee asserts that any argument that the doctrine of res

judicata is inapplicable is waived in this appeal where Appellant failed to properly brief

this issue. Tennessee courts have held that where a party raises an issue, but fails to argue

that issue in the body of its appellate brief, “fails to develop an argument in support of

[its] contention[,] or merely constructs a skeletal argument, the issue is waived.” Sneed

v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010).

We agree with Appellee that Appellant’s brief is not a model of clarity, nor does it

contain specific references to the res judicata elements in its argument section. We note,

however, that the clear import of Appellant’s brief is that the trial court erred in applying

the doctrine of res judicata where the court in the Second Case lacked subject matter

jurisdiction over the action due to the doctrine of prior suit pending.3 Appellant’s brief

contains appropriate citations to legal authority regarding prior suit pending and

references to the record on appeal in support of its argument. See generally Tenn. R. App.

P. 27(a) (outlining the requirements for appellant’s briefs). As such, Appellant’s

argument, while not well pleaded, is sufficiently cogent to allow appellate review, in light

of the fact that this case involves only a single legal issue and a single technical record, as

well as implicates issues of subject matter jurisdiction. See Johnson v. Hopkins, 432

S.W.3d 840, 844 (Tenn. 2013) (citing In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn.

3

For example, Appellant’s brief states: “[T]he previous ruling upon which [Appellee] relies to

support his contention of res judicata, was in fact made in a case which had erroneously been filed and as

to which there was a prior action pending. The Circuit Court lacked subject matter jurisdiction, and the

case should have been dismissed[.]” Although reply briefs are not substitutes for initial briefs, we also

note that Appellant clarifies his argument in his reply brief.

4

2012)) (“[S]ubject matter jurisdiction is a threshold inquiry, which may be raised at any

time in any court.”). We therefore proceed to address the merits of this appeal.

As we perceive it, Appellant contends that res judicata is not applicable in this

case because the court presiding over the Second Case lacked subject matter jurisdiction

over the matter where a prior suit involving the same subject matter and parties was

pending in another court. Obviously, this argument implicates the doctrine of prior suit

pending. Prior suit pending involves four essential elements:

1) the lawsuits must involve identical subject matter; 2) the lawsuits must

be between the same parties; 3) the former lawsuit must be pending in a

court having subject matter jurisdiction over the dispute; and 4) the former

lawsuit must be pending in a court having personal jurisdiction over the

parties.

West v. Vought Aircraft Indus., Inc., 256 S.W.3d 618, 623 (Tenn. 2008) (footnote

omitted) (citing Cockburn v. Howard Johnson, Inc., 215 Tenn. 254, 385 S.W.2d 101

(Tenn. 1964)). “The doctrine of prior suit pending invokes whether a court has subject

matter jurisdiction to hear a suit.” Haggard v. Aguilar, No. 2009-02452-COA-R3-CV,

2010 WL 4962884, at *2 (Tenn. Ct. App. Dec. 7, 2010) (citing Taylor v. Transmission

Corp. of Am., Inc., No. E2003-02529-COA-R3-CV, 2004 WL 2853300, at *1 (Tenn. Ct.

App. Dec. 13, 2004). As we have previously explained

When more than one court has been given jurisdiction to adjudicate

a particular type of controversy, subject matter jurisdiction may also be

influenced by matters of comity and judicial efficiency. Thus, when two

courts have concurrent subject matter jurisdiction, the first court to acquire

jurisdiction over a particular case takes exclusive jurisdiction to end the

matter. See American Lava Corp. v. Savena, 476 S.W.2d 639, 640 (Tenn.

1972); Robinson v. Easter, 208 Tenn. 147, 149, 344 S.W.2d 365, 366

(1961); Wilson v. Grantham, 739 S.W.2d 776, 777 (Tenn. Ct. App. 1986).

The actions of a court that attempts to exercise jurisdiction over a case after

another court with concurrent jurisdiction has already exercised jurisdiction

are nullities. See State v. Hazzard, 743 S.W.2d 938, 941 (Tenn. Crim. App.

1987).

State ex rel. McPeek v. Long, No. E2005-01670-COA-R3-CV, 2006 WL 1163077, at

*1–2 (Tenn. Ct. App. Apr. 28, 2006) (quoting State ex rel. Whitehead v. Thompson, No.

01A01-9511-CH-00538, 1997 WL 749465, at *2 (Tenn. Ct. App. Dec. 5, 1997)). Thus, a

court that presides over a case where a prior suit is properly pending in another court

violates the doctrine of prior suit pending and lacks subject matter jurisdiction to

adjudicate the controversy. See Wiley, 2006 WL 929264, at *4 (quoting Corley, 2003 WL

23099685, at *3) (“Under the prior suit pending doctrine, ‘where two courts have

concurrent jurisdiction over a matter, the court first taking jurisdiction acquires exclusive

5

jurisdiction over the matter, and the subsequent action must be dismissed.’”) (emphasis

added); Metro. Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876,

878–79 (Tenn. Ct. App. 1982) (citing American Lava Corp. v. Savena, 476 S.W.2d 639,

640 (Tenn. 1972); Kizer v. Bellar, 192 Tenn. 540, 546, 241 S.W.2d 561, 563 (Tenn.

1951)) (holding that where a court acquires jurisdiction over a matter, “no court of

coordinate authority is at liberty to interfere with its action” and “only the first suit can be

allowed to stand”); see also Paul J. Krog, One Bite at A Time Analyzing the Prior-Suit-

Pending Doctrine in Tennessee, Tenn. B.J., June 2012, 14, 18 [hereinafter One Bite at a

Time] (“Tennessee courts have come to treat prior suit pending as a jurisdictional

doctrine.”) (footnote omitted).

Appellee argues, however, that Appellant cannot now contest the “correctness” of

the judgment in the Second Case because that case was not appealed and it was

Appellant’s decision to file the Second Case. In our view, Appellee misapprehends the

issue on appeal. Here, Appellant is not contesting the dismissal of the Second Case on the

basis of prior suit pending or any other ground. Rather, Appellant is merely challenging

the application of the doctrine of res judicata in the First Case on the basis that one

essential element—that the underlying judgment was rendered by a court of competent

jurisdiction—is not met. We agree with Appellee that the Second Case is final, and we

will not disturb the dismissal of that case. C.f. Goeke v. Woods, 777 S.W.2d 347, 350

(Tenn. 1989) (“A judgment dismissing a suit for lack of jurisdiction does not preclude a

party from litigating the same cause of action in a court of competent jurisdiction; it does

preclude the relitigation of the issue of whether the first tribunal had jurisdiction.”).

Rather, this appeal involves only the trial court’s decision to dismiss the First Case on the

basis of res judicata, an issue that is properly reviewable in this appeal. Moreover, the

fact that Appellant made the decision to file the Second Case does not alter our analysis.

Rather, it is well-settled that subject matter jurisdiction cannot be conferred upon a

tribunal by any action of the parties, including waiver or consent. Shelby Cty. v. City of

Memphis, 211 Tenn. 410, 413, 365 S.W.2d 291, 292 (Tenn. 1963) (quoting Petition of S.

Lumber & Mfg. Co., 141 Tenn. 325, 210 S.W. 639, 640 (Tenn. 1919) (“It is well settled

that, when the court has no jurisdiction of the subject-matter, it cannot be conferred either

by waiver or consent, and all of its orders and decrees are a nullity, and may be

collaterally attacked.”)); but see Cannon ex rel. Good v. Reddy, 428 S.W.3d 795, 798

(Tenn. 2014) (citing Walker v. Vandiver, 181 S.W. 310, 311, 133 Tenn. 423 (Tenn.

1915)) (holding that a dismissal of a prior suit before the trial of a subsequent suit

eliminates the defense of prior suit pending). 4 Thus, Appellant is not attacking the

intrinsic “correctness” of the judgment in the Second Case, but whether the court in the

Second Case possessed competent subject matter jurisdiction for purposes of satisfying

the necessary elements of res judicata. See Henson v. Henson, No. 23, 1989 WL 75960,

4

As is evident by the fact that this appeal is ongoing, the First Case was not voluntarily

dismissed.

6

at *2 (Tenn. Ct. App. July 11, 1989) (noting a difference between an attack on a court’s

subject matter jurisdiction and an attack as to the correctness of a trial court’s decision).5

Turning to the prior suit pending factors, again, there appears to be no dispute in

this case that the First Case and the Second Case involve the same parties and subject

matter or that the court in the First Case had both personal jurisdiction and subject matter

jurisdiction. Rather, the dispute in this case concerns whether the First Case was

“pending” at the time of the filing of the second case. This Court has previously defined

the term “pending” as “‘[b]egun, but not yet completed’ and ‘awaiting an occurrence of

conclusion of an action, period of continuance or indeterminancy.’” Malmquist v.

Malmquist, 415 S.W.3d 826, 837 (Tenn. Ct. App. 2011) (quoting Black’s Law

Dictionary 1021 (5th ed. 1979)) (involving ex parte communications). To determine

whether the First Case was pending at the time of the proceedings in the Second Case so

as to implicate the doctrine of prior suit pending, we must examine the procedural history

of the two cases, particularly the First Case.

Here, the First Case was initiated on November 20, 2013, with a judgment of

dismissal in favor of Appellee entered on January 13, 2014. Within ten days from the

judgment, on January 23, 2014, Appellant filed a motion seeking to set aside the

dismissal. At the time that the Second Case was filed and, in our view, throughout all of

the proceedings in the Second Case up to its final judgment in circuit court,6 the motion

filed in the First Case had not yet been adjudicated by the general sessions court.7

Motions seeking to set aside or alter general sessions courts’ judgments are

specifically authorized by statute. According to Tennessee Code Annotated section 16-

15-727(b),

5

The alleged lack of jurisdiction by the court in the Second Case also distinguishes this case from

Smith Mechanical Contractors, Inc. v. Premier Hotel Development Group, 210 S.W.3d 557 (Tenn. Ct.

App. 2006), in which we held that a mistake as to the filing of a lawsuit was not sufficient to avoid the

effect of res judicata. The Court in Smith expressly noted that there was no dispute “that the [t]rial [c]ourt

in the second lawsuit had subject matter jurisdiction[.]” Id. at 567. The same is simply not true in this

case.

6

As noted above, the circuit court’s order denying Appellant’s motion to alter or amend in the

Second Case is not included in the record. Neither party asserts that this order was entered following the

adjudication of the motion to set aside filed in the First Case. Regardless, as discussed in more detail

above, because a notice of appeal was timely filed following the denial of the general sessions motion to

set aside in the First Case, the First Case remained “pending” even following the adjudication of this

motion.

7

Although there was some notation in the general sessions court’s docket that the case had been

dismissed in February 2014, the parties now agree that this motion was not adjudicated until August 24,

2016, well after the institution of the Second Case.

7

Tenn. R. Civ. P. 60.02, regarding mistakes, inadvertence, excusable

neglect, fraud and other similar reasons set out in that rule, shall apply to all

courts of general sessions. A motion under the general sessions court’s

authority under Tenn. R. Civ. P. 60.02 shall be filed within ten (10) days of

the date of judgment. Once filed, the motion shall toll the ten-day period for

seeking de novo review in the circuit court until the determination of the

motion is concluded. Thereafter, an appeal for de novo review in the circuit

court shall be filed within ten (10) days of the general sessions court’s

ruling on the motion to relieve a party or the parties’ legal representative

from a final judgment, order or proceeding in the same manner as provided

in Tenn. R. Civ. P. 60.02.

As we recently explained, section 16-15-727 therefore provides that

[A] party dissatisfied with the judgment of the general sessions court may

seek to set aside that judgment by the timely filing of a motion under

section 16-15-727(b). When such a motion is timely filed, the time for

perfecting a de novo appeal to the circuit court is tolled until such time as

the motion to set aside is adjudicated.

Wells Fargo Bank, N.A. v. Dorris, No. W2017-00617-COA-R3-CV, 2017 WL 6623621,

at *3 (Tenn. Ct. App. Dec. 28, 2017).

There can be no dispute that Appellant’s motion to set aside the judgment in the

First Case was timely and therefore pursuant to the plain language of section 16-15-

727(b), the time for perfecting an appeal was tolled. See generally Tenn. Code Ann. § 1-

3-102 (governing computation of time); State v. Smith, 278 S.W.3d 325, 330 (Tenn.

Crim. App. 2008) (applying section 1-3-102 to general sessions court). The trial court

concluded, however, that the First Case was “final” and that the section 16-15-727(b)

motion “did not affect the finality of the judgment nor did it suspend its operation[.]”

Respectfully, we cannot agree.

Generally, a judgment is final when it resolves all the claims between all the

parties, “leaving nothing else for the trial court to do.” State ex rel. McAllister v. Goode,

968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). The filing of the section 16-15-727(b)

motion in the First Case clearly meant that the general sessions court was required to act

to adjudicate the motion. Appellee argues, however, that section 16-15-727(b) motions

should be treated similarly to motions under Rule 60.02 of the Tennessee Rules of Civil

Procedure. We agree that section 16-15-727(b) motions expressly reference Rule 60.02.

See Tenn. Code Ann. § 16-15-727(b) (“Tenn. R. Civ. P. 60.02, regarding mistakes,

inadvertence, excusable neglect, fraud and other similar reasons set out in that rule, shall

apply to all courts of general sessions.”). Additionally, it is true that the filing of a Rule

60.02 motion does not affect the finality of the underlying action. See Tenn. R. Civ. P.

60.02 (noting that generally “[a] motion under this Rule 60.02 does not affect the finality

8

of a judgment or suspend its operation”). This Court has previously held, however, that

the proper interpretation of section 16-15-727(b) should be governed by the statutes

applicable in the general sessions court, rather than by rules applicable to Rule 60.02

motions, given the differing procedure applicable to each motion. See Dorris, 2017 WL

6623621, at *4 (noting that unlike Rule 60.02, section 16-15-727(b) motions must be

filed within ten days of the judgment and expressly toll the time for taking an appeal;

concluding that Rule 60.02’s procedure is not necessarily applicable to section 16-15-

727(b) motions).

Rather than look to rules applicable to Rule 60.02 motions, we therefore must

resolve this issue by examining the statutes specifically governing appeals from general

sessions courts. See Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 902 (Tenn. 2014

(noting that general sessions courts’ appeals are governed by statute). Tennessee Code

Annotated section 27-5-108 provides a ten-day time period for taking an appeal from a

general sessions court’s judgment. Tenn. Code Ann. § 27-5-108(a). The statute further

provides that “[i]f no appeal is taken within the time provided, then execution may issue.”

Tenn. Code Ann. § 27-5-108(d). Based upon this language, the Tennessee Supreme Court

has held that the general sessions court’s judgment becomes final after the time for

appeal has expired: “If the appeal is not perfected within the ten-day period, the general

sessions courts judgment becomes final and execution may issue.” Griffin, 439 S.W.3d at

902 (citing Tenn. Code Ann. § 27-5-108(d)). This ruling is consistent with other

Tennessee law that holds that judgments are not final while an appeal is pending. See

Creech v. Addington, 281 S.W.3d 363, 377–78 (Tenn. 2009) (noting that Tennessee and

a minority of jurisdictions follow the rule that a judgment is not final and res judicata

cannot apply while an appeal of the other case is pending). Thus, the judgment does not

become final immediately at the time it was rendered, but only following the expiration

of the time provided for an appeal.

Here, the language of section 16-15-727(b) is more than clear that the time for

filing an appeal will not expire until ten days following the adjudication of any timely

filed motion to set aside the judgment. See Tenn. Code Ann. § 16-15-727(b) (“toll[ing]

the ten-day period for seeking de novo review in the circuit court until the determination

of the motion is concluded” and providing ten days from the adjudication of the judgment

to file a notice of appeal). Thus, the general session court’s judgment does not become

final until ten days following the adjudication of any pending section 16-15-727(b)

motion, if no appeal is filed. In the case-at-bar, at the time of the institution of the Second

Case and throughout those proceedings, the time for filing an appeal of the First Case had

simply not expired. As such, the trial court’s conclusion that the general sessions court’s

judgment in the First Case was “final” notwithstanding the pending section 16-15-727(b)

motion was in error.

The current procedural posture of this case highlights the correctness of this

holding. Here, a timely appeal was in fact taken from the general sessions court’s

9

judgment in the First Case. As such, the First Case is plainly still “pending” on secondary

appellate review at this time. See Comcast of S. v. Elec. Power Bd. of Chattanooga, No.

E2008-01788-COA-R3-CV, 2009 WL 1328336, at *6 (Tenn. Ct. App. May 13, 2009)

(citing Creech, 281 S.W.3d 363, 377–78) (holding that a lawsuit is “still ‘pending’ until

the appeal is resolved”).8

Because the First Case was “pending” at the time of the institution and throughout

the proceedings in the Second Case, the doctrine of prior suit pending is applicable. See

West, 256 S.W.3d at 623 (outlining the prior suit pending elements, discussed supra). As

previously discussed, where applicable, the doctrine of prior suit pending deprives the

court presiding over the second-filed action of subject matter jurisdiction. See Wiley,

2006 WL 929264, at *4 (holding that the second court lacks subject matter jurisdiction

where the same claim against the same parties was previously pending in another court);

Brown Stove Works, 637 S.W.2d at 878–79 (holding that the second court cannot

interfere when jurisdiction has attached to a claim by an earlier court). Consequently, the

court in the Second Case lacked subject matter jurisdiction over the matter where

jurisdiction has previously attached to the court in the First Case. See Wilson v. Schwind,

260 S.W.3d 454 (Tenn. Ct. App. 2007) (holding that prior suit pending was applicable

even where the two cases were filed in the same court); see also One Bite at a Time, at 18

(noting that cases may be filed in the same court as “each county or district’s Circuit or

Chancery Court is no more a ‘separate court’ than are the divisions of one county’s”).

Returning to the issue of res judicata, it is clear that the first essential element—

that the judgment be rendered by a court of competent jurisdiction—is not met in this

case. See Jackson, 387 S.W.3d at 491. Here, the doctrine of prior suit pending deprived

the court in the Second Case of its power to act on this issue; the action of the court in the

Second Case was, simply put, a “nullit[y].” Long, 2006 WL 1163077; c.f. 49 C.J.S.,

Judgments, § 421, Jurisdictional Defects p. 824–25 (noting that a court lacks jurisdiction

where it “violates a provision which prohibits it from doing a particular act or taking

jurisdiction over particular matters”). Accordingly, the court presiding over the Second

Case cannot constitute a court of competent jurisdiction for purposes of the doctrine of

res judicata. See Black’s Law Dictionary 927 (9th ed. 2009) (defining “competent

jurisdiction” as having power to decide a case). The trial court’s decision to dismiss the

First Case on the basis of res judicata was therefore in error. See 50 C.J.S. Judgments §

932 (“The doctrine of res judicata cannot be invoked unless all its essential elements are

present, and each necessary element must be established beyond all question.”) (footnotes

omitted).

8

There is no dispute in this case that Appellant filed timely appeals from both the general

sessions court and the circuit court.

10

Finally, Appellee seeks an award of attorney’s fees for the defense of a frivolous

appeal pursuant to Tennessee Code Annotated section 27-1-122. Because we have ruled

in favor of Appellant, this appeal was not frivolous. Accordingly, Appellee’s request is

denied.

CONCLUSION

The judgment of the Circuit Court of Shelby County is reversed and this cause is

remanded to the trial court for further proceedings consistent with this Opinion. Costs of

this appeal are assessed to Appellee, Sams East, Inc., for which execution may issue if

necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

11