Fourakre v. Perry

• Decision Date: 16 December 1983
• Citation: 667 S.W.2d 483
• Parties: Theron FOURAKRE, Plaintiff-Appellee, v. James D. PERRY, Defendant-Appellant. 667 S.W.2d 483
• Court: Tennessee Court of Appeals

Page 483

667 S.W.2d 483

Theron FOURAKRE, Plaintiff-Appellee, v. James D. PERRY, Defendant-Appellant.

667 S.W.2d 483

Court of Appeals of Tennessee Middle Section, at Nashville.

Dec. 16, 1983.

Permission to Appeal Denied by

Supreme Court March 19, 1984.

Jack B. Henry, Pulaski, for defendant-appellant.

Charles R. Terry, Morristown, J. Ronnie Greer, Greenville, for plaintiff-appellee.

ABRIDGED OPINION

TODD, Presiding Judge, Middle Section.

(With the Concurrence of Participating Judges, The Original

Opinion Has Been Abridged For Publication)

This is an action for the wrongful death of plaintiff's wife in a collision of vehicles operated by plaintiff and defendant respectively.

The defendant, James D. Perry, has been granted an interlocutory appeal from an order of the Trial Court overruling defendant's "motion to dismiss".

The collision occurred on August 24, 1980, at the intersection of State Highway 64 and Tollgate Road. Prior to the collision, the vehicles were meeting each other on Highway 64 when plaintiff attempted to turn left across the path of defendant who was a State Trooper operating a State Patrol Vehicle on an emergency call with emergency warning devices operating.

On August 19, 1981, plaintiff filed the present action against the defendant trooper who filed an answer denying negligence and a counterclaim for his own injuries.

On March 25, 1983, defendant filed an "amended answer" and a motion to dismiss as follows:

On February 9, 1983, in an action then pending in The Board of Claims for the State of Tennessee in re The Claim of Theron Fourakre, Individually and as a Surviving Husband of Jacquelyn Fourakre, Deceased, and on the same cause of action as that set forth in the Complaint herein, final judgment was duly given and made on the merits of the case, the Board finding that there is not sufficient evidence to show that Trooper Perry (the defendant herein) was negligent in the operation of his emergency vehicle under the circumstances surrounding this claim.

Defendant, therefore, moves the Court for an Order dismissing the Complaint herein since the cause of action set forth in plaintiff's Complaint is barred by said judgment, which is res judicata as to this action.

A transcript included in this record recites that a hearing was conducted on April 14, 1983. The transcript contains no testimony or other evidence, but is composed only of argument of counsel which begins as follows MR. GREER: We are here today on Defendant's motion to dismiss, your honor, in this case, for the reason that a prior adverse claim by the Board of Claims for the State of Tennessee is a bar to the instant action in the Circuit Court.

The transcript, especially the statements of plaintiff's counsel, has been carefully searched for any statement of counsel which might waive the presentation of evidence to support the "motion to dismiss", which was in reality a motion for summary judgment. None has been found.

Appellant's brief contains a section entitled "Statement of the Case/Statement of the Facts" in which the following is found:

On the 27th day of March, 1981, the plaintiff filed a claim with The Board of Claims for the State of Tennessee seeking to recover for the alleged wrongful death of his wife due to the defendant's negligence. The plaintiff sought recovery for his personal injuries, medical and funeral expenses, loss of consortium of his deceased wife, loss of his automobile, and loss of wages.

A hearing was held before The Honorable Weldon White, former Assistant Attorney General for the State of Tennessee on July 1, 1981. Mr. Fourakre was represented at this hearing by Mr. Jack Henry and Mr. Joe Henry, Jr. Mr. Perry was represented by Mr. Michael Thompson, staff attorney for the Tennessee Department of Safety.

Based upon the transcript of this hearing and the exhibits filed in this matter, Karen Kendrick, staff attorney, prepared a report to The Board of Claims, dated July 23, 1982, and recommended that Mr. Fourakre's claim be disallowed since the evidence did not show that Trooper Perry was negligent in the operation of his vehicle under the emergency circumstances which existed. Exceptions to this recommendation were duly filed and were heard before the full Board of Claims in Nashville on October 20, 1982.

Upon its review of the record in this claim, including the exception hearing of October 20, 1982, and the transcript of the proceedings before General White, the Board determined "that there is not sufficient evidence to show that Trooper Perry was negligent in the operation of his emergency vehicle under the circumstances surrounding this claim," and disallowed Mr. Fourakre's claim on February 9, 1983, in a unanimous decision.

The brief of appellee contains the following:

ISSUES PRESENTED FOR REVIEW

STATEMENT OF THE CASE

Appellee finds no fault with Appellants statement of this case. There is only one issue presented for review, and that is the one raised in the Trial Court, which was, in the filing of a claim before the State Board of Claims against the State res judicata as to a civil action in the Circuit Court of Giles County against the driver?

The issues are stated by appellant as follows:

I. Whether the overriding policy considerations which require the application of the doctrines of Res Judicata and collateral estoppel to the decisions of a court of law are equally applicable to the judicial determination of an administrative agency.

II. Whether a carefully considered determination by the Board of Claims merits application of the principle of Res Judicata and collateral estoppel.

III. Whether the doctrine of election of remedies precludes a plaintiff, who willingly allows his claim to be fully litigated before the Board of Claims, from pursuing an identical cause of action before the Circuit Court.

The issues just stated were not formally presented to the Trial Judge by pleading, but it appears from the transcript that these issues were fairly presented to the Trial Judge in an informal, oral manner. Therefore, in order to avoid further inconvenience to counsel and the Trial Court, this Court will endeavor to dispose of the issue presented in spite of the evidentiary deficiencies of the record:

Where an issue has been finally determined, the principle of Res Judicata prevents a relitigation of that issue whether in the same or independent action. Hicks v. Hicks, 26 Tenn.App. 641, 176 S.W.2d 371 (1944).

Material facts which were in issue in a former action and which were judicially determined are conclusively settled by a judgment in such former actions, and such facts may not again be relitigated in a subsequent action between the same parties or their privies. Medlock v. Ferrari, Tenn.App.1979, 602 S.W.2d 241.

In the case of Schoolfield v. Tenn. Bar Assn., 209 Tenn. 304, 353 S.W.2d 401 (1961) the Supreme Court held that the findings of the Senate of Tennessee in impeachment proceedings regarding the conduct of a judge were conclusive against the same individual in a subsequent disbarment proceeding before the Courts.

In Polsky v. Atkins, 197 Tenn. 201, 270 S.W.2d 497 (1954) the Supreme Court held that the doctrine of Res Judicata was applicable to a decision of the Commissioner of Finance and Taxation acting in an adjudicatory capacity.

In Purcell Enterprises, Inc. v. State of Tennessee and Tennessee State Board of Claims, Tenn.App.1982, 631 S.W.2d 401, this Court held that the doctrine of Res Judicata applied to a final decision of the State Board of Claims.

Appellee concedes in his brief that a final decision of an administrative agency creates estoppel under the doctrine of Res Judicata.

However, appellee asserts that the doctrine of Res Judicata does not apply in the present case because the parties before the Board of Claims are not the identical parties to the present case.

The general rule is that estoppel by former adjudication applies only in proceedings involving identical parties and issues. Clements v. Pearson, 209 Tenn., 223, 352 S.W.2d 236 (1962). Usrey v. Lewis, Tenn.App.1977, 553 S.W.2d 612. It is also the general rule that a party who participated in former litigation may be bound by collateral estoppel as to issues decided adversely to him in the former litigation.

In Cantrell v. Burnett and Henderson Co., 187 Tenn. 552, 216 S.W.2d 307 (1948), a purchaser of an automobile sued a manufacturer and dealer for the destruction of the vehicle by fire allegedly as a result of a defect in the vehicle. The trial judge directed a verdict for the manufacturer for lack of privity of contract and submitted the case against the dealer to the jury on the sole question of whether or not, at the time of sale to plaintiff, there was a defect in the automobile which caused a fire. The jury found for the dealer on this question and the judgment in this respect was ultimately affirmed on appeal. Nevertheless, the plaintiff complained to the Supreme Court as to the dismissal of his suit against the manufacturer. The Supreme Court declined to review the correctness of the reason for the directed verdict holding in essence that the error, if any, was harmless because the jury had found that there was no actionable defect at the time of delivery to plaintiff and that the manufacturer could have no liability if there was no defect.

Said opinion contains the following observations:

"In order to render a verdict in one action evidence in another, it is not necessary that the parties should be the same. It is sufficient if the party against whom the verdict is intended to be introduced was a party to the former suit, and that the same subject matter was directly put in issue by the pleadings."

"It is a fundamental principle of jurisprudence that 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 that such facts or questions becomes...