Tamala Teague, As Successor Personal Representative Of The Estate Of Lola Lee Duggan v. Garnett Kidd

09/12/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 19, 2019 Session

TAMALA TEAGUE, AS SUCCESSOR PERSONAL REPRESENTATIVE OF THE

ESTATE OF LOLA LEE DUGGAN v. GARNETT KIDD ET AL.

Appeal from the Chancery Court for Polk County

No. 2017-CV-25 Jerri Bryant, Chancellor

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No. E2019-00330-COA-R3-CV

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This case implicates the doctrine of res judicata. Tamala Teague (plaintiff) is the

administrator of the estate of Lola Lee Duggan. Garnette Kidd and William Kidd

(defendants) are Ms. Duggan’s daughter and son-in-law. In a previous lawsuit, the trial

court determined that defendants wrongfully took more than $100,000 of Ms. Duggan’s

assets and used some of that money to purchase 132 acres of real estate. After a bench

trial, the court, in that first case, awarded money damages to Ms. Duggan’s estate. A few

years later, plaintiff filed a second complaint against the defendants. The complaint

alleged the same facts that precipitated the previous lawsuit. This time, however,

plaintiff sought a different remedy – the entry of an order declaring the existence of a

constructive trust with respect to the 132 acres of real estate. The trial court ruled that the

doctrine of res judicata barred plaintiff from pursuing this alternative remedy in a second

suit against the same defendants on the same cause of action. Accordingly, the court

granted defendants’ motion to dismiss and denied plaintiff’s motion for summary

judgment. Plaintiff appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., joined. JOHN W. MCCLARTY, J., filed a dissenting opinion.

Andy D. Lewis, Chattanooga, Tennessee, for the appellant, Tamala Teague, as successor

personal representative of the estate of Lola Lee Duggan.

H. Franklin Chancey, Cleveland, Tennessee, for the appellees, Garnett Kidd and William

Beauford Kidd.

OPINION

I.

In June 2001, defendants moved in with Ms. Duggan, who had been diagnosed

with Alzheimer’s disease. Mrs. Kidd had access to Ms. Duggan’s bank accounts. Mr.

Kidd prepared her tax returns. In July 2001, Ms. Duggan executed a durable power of

attorney, which designated Mrs. Kidd as her attorney-in-fact. Approximately five years

later, defendants placed Ms. Duggan in a nursing facility. She died in September 2007.

Donald Duggan, the first administrator of the estate,1 discovered evidence that

more than $150,000 of Ms. Duggan’s assets had “disappeared” during the time that she

was in the exclusive care of the defendants. Mr. Duggan filed a complaint against the

defendants seeking “to recover funds unlawfully converted through fraud, false dealing

and misapplication of trust by Defendant[s].” He requested “that a Lien Lis Pendens be

placed against the real property acquired by Defendants in this cause to secure any

judgment which may be obtain[ed] by the Estate.” (Emphasis in original.) The

complaint also prayed for the following forms of relief:

1. That process issue to Defendants in a way and manner as

required by law.

2. That upon the hearing of this cause the Estate recover from

Defendants all sums wrongfully and fraudulently converted

by Defendants to their o[w]n individual use.

3. That Plaintiff have and recover judgment for attorney’s

fees, prejudgment interest at the statutory rate of 10% and for

punitive damages in amount equal to those funds which have

been wrongfully converted fraudulently by Defendants in this

cause.

4. That Plaintiff have such additional general and equitable

relief to which it may be entitled upon the hearing of this

cause.

The complaint did not request any alternative remedies, such as the entry of an order

declaring the existence of a constructive trust.

1

Mr. Duggan died in August 2010. Thereafter, plaintiff was appointed to administer the estate as

a successor personal representative.

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After a bench trial, the court ruled that “defendants are liable to the Estate for the

wrongful taking of $176,367.31 and that prejudgment interest at the statutory rate of 10%

should be awarded from February 21, 2006 through April 19, 2011.” This resulted in a

total judgment of $267,305.31. In a subsequent order, the court stated that defendants

had used Ms. Duggan’s assets to purchase the 132 acres of real estate at issue in the

present case.

Defendants in the first case appealed. This Court affirmed the judgment against

Mrs. Kidd but reduced the award of damages to $117,679. Teague v. Kidd, No. E2011–

02363–COA–R3–CV, 2012 WL 5869637, at *7 (Tenn. Ct. App., filed Oct. 3, 2012). We

reversed the judgment against Mr. Kidd because “the evidence simply did not establish

that [he] possessed a confidential relationship that would have allowed him to exercise

dominion and control over [the] [d]ecedent.” Id. at *8. On remand, the trial court

entered an amended final judgment in accordance with this Court’s mandate.

In August 2017, plaintiff filed the second complaint against the defendants. The

complaint alleged the same facts that precipitated the previous suit. This time, however,

plaintiff sought a different remedy – the entry of an order declaring the existence of a

constructive trust, which would transfer legal title in the subject property from the

defendants to Ms. Duggan’s estate. Defendants filed an answer. They denied using Ms.

Duggan’s money to purchase 132 acres of real estate. They also denied that Ms.

Duggan’s estate was the equitable owner of the property. Finally, defendants denied that

the estate was entitled to obtain legal title to the property by means of a constructive trust.

In October 2018, plaintiff filed a motion for summary judgment, which was

accompanied by a statement of undisputed material facts. Plaintiff also attached several

exhibits. These exhibits included admissions by the defendants and the following

documents from the previous lawsuit: plaintiff’s complaint, defendants’ answer, the trial

court’s April 21, 2011 judgment, the court’s order denying defendants’ motion to alter or

amend, this Court’s November 21, 2012 opinion, and the April 30, 2013 amended final

judgment.

On October 31, 2018, defendants filed a motion to dismiss for failure to state a

claim upon which relief can be granted. In substance, defendants asserted the affirmative

defense of res judicata. On the same day, defendants filed a response to plaintiff’s

statement of undisputed material facts and a brief opposing plaintiff’s motion for

summary judgment. Defendants admitted the truth of all material facts alleged by

plaintiff; however, defendants argued that plaintiff was not entitled to judgment as a

matter of law. Defendants expressly raised the affirmative defense of res judicata.

On December 13, 2018, the trial court held a hearing on the matter. After the

hearing, the court entered a final judgment. The court determined that “it would be

equitable to impose a constructive trust[,]” but the court ultimately declined to do so.

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According to the court, the doctrine of res judicata barred plaintiff from seeking that

equitable remedy in a second suit against the same defendants on the same cause of

action. Accordingly, the court granted defendants’ motion to dismiss and denied

plaintiff’s motion for summary judgment. Plaintiff appealed.

II.

Plaintiff raises two issues, which we have slightly restated:

Whether the trial court erred by granting defendants’ motion

to dismiss; and

Whether the trial court erred by denying plaintiff’s motion for

summary judgment.

III.

A.

We begin by considering whether the trial court erred by granting defendants’

motion to dismiss for failure to state a claim upon which relief can be granted. As a

preliminary matter, we note that certain “matters outside the pleading” were “presented to

and not excluded by the court[.]” Tenn. R. Civ. P. 12.02(6). Normally, this would

require the trial court to treat the motion to dismiss as a motion for summary judgment.

Id. That was not necessary in this case because the items presented were “subject to

judicial notice, matters of public record, orders, items appearing in the record of the case,

and exhibits attached to the complaint whose authenticity is unquestioned[.]” See

Indiana State Dist. Council of Laborers v. Brukardt, No. M2007-02271-COA-R3-CV,

2009 WL 426237, at *8 (Tenn. Ct. App., filed Feb. 19, 2009) (quoting Wright and Miller,

Federal Practice and Procedure, Civil § 1357, p. 376 (3d ed. 2004)), perm. app. denied

(Tenn. Aug. 24, 2009).

When reviewing a trial court’s decision to grant a Rule 12.02(6) motion to

dismiss, we are mindful of the following principles:

A motion to dismiss [for failure to state a claim upon which

relief can be granted] “challenges only the legal sufficiency of

the complaint, not the strength of the plaintiff’s proof or

evidence.” Webb v. Nashville Area Habitat for Humanity,

Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (citation omitted).

The relevant and material allegations of the complaint are

taken as true, and the plaintiff is afforded the benefit of all

reasonable inferences that may be drawn from the allegations.

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Webb, 346 S.W.3d at 426; Brown v. Tenn. Title Loans, Inc.,

328 S.W.3d 850, 854 (Tenn. 2010). . . . We apply de novo

review to the lower court’s legal conclusions, including its

ruling on the legal sufficiency of the complaint. Webb, 346

S.W.3d at 426.

Estate of Haire v. Webster, 570 S.W.3d 683, 690 (Tenn. 2019).

B.

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

Plaintiff first argues that defendants waived the res judicata defense by failing to raise the

defense in their answer. We disagree.

Although res judicata is an affirmative defense that is ordinarily raised in a

defendant’s answer, the defense may also be raised in a Rule 12.02(6) motion to dismiss

for failure to state a claim upon which relief can be granted. Jackson v. Smith, 387

S.W.3d 486, 491 (Tenn. 2012). Some defenses are waived if they are not asserted in a

party’s first responsive pleading,2 but

the defense of failure to state a claim upon which relief can be

granted . . . may also be made by a later pleading, if one is

permitted, or by motion for judgment on the pleadings or at

the trial on the merits[.]

Tenn. R. Civ. P. 12.08; see also Young ex rel. Young, 429 S.W.3d at 547-49 (holding

that the defense of failure to state a claim may be asserted in a post-answer motion to

dismiss). Therefore, defendants were permitted to raise the res judicata defense in their

post-answer motion to dismiss.

Even if defendants were required to raise the res judicata defense in their answer

(or failed to specifically plead the defense in their motion to dismiss), defendants did not

waive the defense because the issue was tried with plaintiff’s implied consent. “When

issues not raised by the pleadings are tried by express or implied consent of the parties,

they shall be treated in all respects as if they had been raised in the pleadings.” Tenn. R.

Civ. P. 15.02.

An issue is tried by implied consent when the party opposing

2

These defenses include: (1) lack of personal jurisdiction; (2) improper venue; (3) insufficiency

of process; and (4) insufficiency of service. See Young ex rel. Young v. Kennedy, 429 S.W.3d 536, 548-

49 (Tenn. Ct. App. 2013), perm. app. denied (Tenn. Feb. 11, 2014); cf. Dye v. Murphy, No. W2003-

01521-COA-R3-CV, 2004 WL 350660, at *3 (Tenn. Ct. App., filed Feb. 25, 2004).

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the issue knew or should reasonably have known of the

evidence relating to the new issue, did not object to the

evidence, and was not prejudiced by the inclusion of the

evidence.

Chadwell v. Chadwell, No. 03A01-9601-GS-00007, 1996 WL 555228, at *3 (Tenn. Ct.

App., filed Oct. 1, 1996) (citing Zack Cheek Builders, Inc. v. McLeod, 597 S.W.2d 888

(Tenn. 1980)), perm. app. denied (Tenn. Jan. 27, 1997).

In Chadwell, the defendant “did not specifically plead res judicata as required by

[Tenn. R. Civ. P. 8.03].” Id. at *4. However, the issue was raised at trial and the plaintiff

did not argue that defendant had waived the defense. Id. The court ruled that res judicata

barred plaintiff’s claim. Id. On appeal, this Court rejected plaintiff’s argument that

defendant waived the defense; we held that “the issue was tried by implied consent[.]”

Id.

Here, defendants filed a motion to dismiss that, in substance, raised the res

judicata defense. Defendants also expressly raised the res judicata defense in their brief

opposing plaintiff’s motion for summary judgment. Plaintiff responded to both filings

but did not argue that defendants waived the res judicata defense. We do not know

whether plaintiff raised the issue of waiver at the December 2018 hearing because neither

party filed a transcript. On the record before us, it appears that the res judicata issue was

tried by implied consent. Accordingly, the issue “shall be treated in all respects as if [it]

had been raised in the pleadings.” Tenn. R. Civ. P. 15.02.

C.

We now turn to the merits of defendants’ res judicata defense:

The doctrine of res judicata or claim preclusion bars a

second suit between the same parties or their privies on the

same claim with respect to all issues which were, or could

have been, litigated in the former suit. It is a “rule of rest,”

. . . and it promotes finality in litigation, prevents

inconsistent or contradictory judgments, conserves judicial

resources, and protects litigants from the cost and vexation

of multiple lawsuits.

The party asserting a defense predicated on res judicata or

claim preclusion must demonstrate (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

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asserted in both suits, and (4) that the underlying judgment

was final and on the merits. 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) (citations omitted).

It is undisputed that the previous litigation involved the same parties and that a

court of competent jurisdiction rendered a final judgment on the merits.3 The only issue

is whether plaintiff’s second complaint asserts “the same claim or cause of action” as

plaintiff’s first complaint. In Creech v. Addington, the Supreme Court adopted the

“transactional standard” for determining whether a party is asserting the “same claim or

cause of action.” 281 S.W.3d 363, 378-82 (Tenn. 2009). Under that approach, “[t]wo

suits . . . shall be deemed the same ‘cause of action’ for purposes of res judicata where

they arise out of the same transaction or a series of connected transactions.” Id. at 381.

Here, plaintiff’s second lawsuit clearly “arise[s] out of the same transaction” that

precipitated the first lawsuit. Both suits are predicated on allegations that Mrs. Kidd

wrongfully took more than $100,000 of Ms. Duggan’s assets and that defendants used

some of that money to purchase the subject property. The only significant difference

between the two suits is the remedy sought.

Plaintiff, and the dissent, insist that the doctrine of res judicata should not prevent

the court from declaring the existence of a constructive trust because a constructive trust,

in some sense, already exists. In support of this position, both plaintiff and the dissent

cite this Court’s decision in State ex rel. Flowers v. Tennessee Coordinated Care

Network, No. M2003-01658-COA-R3-CV, 2005 WL 427990 (Tenn. Ct. App., filed Feb.

23, 2005) [hereinafter Flowers]. In Flowers the Tennessee Department of Commerce

and Insurance filed suit to recover funds that were fraudulently transferred by the

defendants. Id. at *1. During the litigation, the defendants filed for bankruptcy. Id. at

*2. After the bankruptcy court lifted the automatic stay, the department amended its

complaint to request the imposition of a constructive trust with respect to the

fraudulently-transferred funds. Id. at *3. The trial court granted the request and ruled

that a constructive trust arose on the date of the fraudulent transfer. Id. This Court

affirmed. Id. at *13 (“[C]onstructive trusts are created not by the court but by the

wrongful act of the constructive trustee whose duties as trustee emanate the instant of the

wrongful transfer.”).

Reliance on Flowers is misplaced. For the purposes of res judicata, it is

3

As previously noted, the trial court properly took judicial notice of the relevant documents from

the previous litigation.

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unnecessary to determine whether and when a constructive trust came into existence.4

Instead, the critical issue is whether plaintiff has the right to seek this equitable remedy in

a second suit against the same defendants on the same cause of action. The answer to

that question is “no.”

In Creech, the Supreme Court explained that when a court of competent

jurisdiction enters a final judgment on the merits,

the claim extinguished includes all rights of the plaintiff to

remedies against the defendant with respect to all or any part

of the transaction, or series of connected transactions, out of

which the action arose.

281 S.W.3d at 379 (emphasis added) (quoting Rest. (Second) of Judgments § 24). This

rule “applies even though the plaintiff is prepared in the second action . . . to seek

remedies or forms of relief not demanded in the first action.” Rest. (Second) of

Judgments § 25. There is a good reason for this rule:

In a modern system of procedure it is ordinarily open to the

plaintiff to pursue in one action all the possible remedies

whether or not consistent, whether alternative or cumulative,

and whether of the types historically called legal or equitable.

Therefore it is fair to hold that after judgment for or against

the plaintiff, the claim is ordinarily exhausted so that the

plaintiff is precluded from seeking any other remedies

deriving from the same grouping of facts.

Rest. (Second) of Judgments § 25 cmt. f. Of course, the Supreme Court has also stated

that the transactional standard “should be applied on a case-by-case basis, with sensitivity

to the facts of each proceeding.” Creech, 281 S.W.3d at 381. This is because

[t]here are a number of circumstances in which a second

action by a plaintiff against the same defendant might be

necessary and appropriate even though the second suit arises

out of the same transaction or series of connected transactions

4

The latter issue typically arises when creditors are competing for priority. Rest. (Third) of

Restitution § 55 cmt. e. In that context, it is accurate to say that a constructive trust arises at the moment

of the wrongful act. It is also accurate (and arguably more precise) to say that “the constructive trust

arises on the date of judgment, but that the state of title it describes ‘relates back’ to the transaction

between the parties.” Id. This reflects the common-sense notion that “the remedial obligation of the

constructive trustee does not exist until the court issues its decree, just as a defendant’s obligation to pay

damages does not exist until the case has been decided and a judgment has been entered.” Id.

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as the first suit. See Restatement (Second) of Judgments §

26(1).

Id. at 381-82. Most of the circumstances identified in Section 26 of the Restatement

involve situations where the plaintiff did not have the opportunity in the first suit to fully

and fairly litigate a particular issue. See Restatement (Second) of Judgments § 26(1).

In light of the foregoing legal principles, we hold that plaintiff’s second complaint

is asserting the same cause of action as plaintiff’s first complaint, even though plaintiff is

seeking a different remedy. In the previous lawsuit, plaintiff could have sought the entry

of an order declaring the existence of a constructive trust as an alternative remedy to

money damages. Plaintiff failed to do so. After careful review of the record, we can

discern no justifiable reason for that failure. Therefore, we conclude that the trial court

properly granted defendants’ motion to dismiss on the basis of res judicata. All

remaining issues are pretermitted as moot.

The dissent, like plaintiff, does not even attempt to apply the transactional

standard as articulated in Creech and further explained in the Restatement (Second) of

Judgments. Relying on cases from other jurisdictions, the dissent simply asserts that “the

res judicata doctrine should not be invoked in situations where it defeats the ends of

justice.” The dissent also suggests that our decision will allow “a thief to profit from her

actions.” We respectfully disagree. Plaintiff still has a valid money judgment against

Mrs. Kidd. Nothing in this opinion prevents plaintiff from enforcing that money

judgment by any manner authorized by law.

IV.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the

appellant, Tamala Teague, as successor personal representative of the estate of Lola Lee

Duggan. The case is remanded for enforcement of the trial court’s judgment and for the

collection of costs assessed below.

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CHARLES D. SUSANO, JR., JUDGE

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