IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
April 2, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9702-CR-00075
)
) Roane County
v. )
) Honorable E. Eugene Eblen, Judge
)
DENNIE RAY LODEN, ) (Habitual Motor Vehicle Offender)
)
Appellant. )
For the Appellant: For the Appellee:
Dennie Loden, Pro Se John Knox Walkup
104 Davis Hollow Road Attorney General of Tennessee
Kingston, TN 37763 and
Michael J. Fahey, II
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Charles E. Hawk
District Attorney General
and
Frank A. Harvey
Assistant District Attorney General
P.O. Box 703
Kingston, TN 37763
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, Dennie Ray Loden, appeals as of right from the judgment
of the Roane County Criminal Court declaring him to be an Habitual Motor Vehicle
Offender (HMVO) who is barred from driving. He contends that res judicata barred the
trial court from declaring such status after a previous HMVO petition based upon the
same predicate convictions had been dismissed. We affirm the trial court.
In 1994, the state filed a petition to have the defendant declared an
habitual offender based upon two prior driving under the influence (DUI) and one driving
on a revoked license convictions. Two of the convictions were still on appeal. The trial
court dismissed the petition in an order that states in pertinent part:
Based on the complaint of the State, the statements of counsel
that two of the three convictions necessary to declare the
Defendant an Habitual Motor Vehicle Offender are still on
appeal, and the record as a whole the Court finds that the
State has not carried its burden under the statute and the
complaint is hereby DISMISSED.
After the two convictions were affirmed on appeal, the state brought
another petition in 1996 that alleged the same three convictions as its predicate. The
trial court declared the defendant to be an habitual offender.
The defendant rightly notes that an HMVO action is civil in nature and that
civil procedural rules apply. See State v. Malady, 952 S.W.2d 440, 444 (Tenn. Crim.
App. 1996); Everhart v. State, 563 S.W.2d 795, 796-97 (Tenn. Crim. App. 1978). 1 He
argues that the trial court’s order constitutes an adjudication on the merits that bars a
subsequent suit upon the same claim. He relies upon Rule 41.02, Tenn. R. Civ. P.,
which states in part:
1
The c ourt of crim inal appea ls has juris diction ove r appea ls in HMV O action s. See
T.C.A. § 55-10-616.
2
(3) Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and any dismissal
not provided for in this Rule 41, other than a dismissal for lack
of jurisdiction or for improper venue or for lack of an
indispensable party, operates as an adjudication upon the
merits.
In response, the state first notes the sparseness of the record, which
contains only the 1994 petition and order of dismissal and the 1996 petition and
judgment. It asserts that upon such a record, there is no evidence that the defendant
raised the issue of res judicata in the trial court. Second, it argues that the wording of
the order specifies that it was not an adjudication on the merits. Third, it argues that res
judicata does not apply because the convictions were not final and, thus, were not
actually justiciable at the time of the first petition. Finally, it argues that a procedural
rule should not be allowed to frustrate the important purpose and policy of the Habitual
Motor Vehicle Offenders Act.
As for the state’s last argument, we question whether the doctrine of res
judicata is a procedural rule that may be ignored to serve public policy in some “ends
justifying the means” fashion. Res judicata is, itself, a rule of public policy aimed at
quieting legal disputes with reasonable expedition without being required to relitigate
matters that should have been settled in former litigation. See Jordan v. Johns, 168
Tenn. 525, 536-37, 79 S.W .2d 798, 802 (1935).
However, we agree with the state that under the record on appeal, the
defendant has waived any res judicata claim. Pursuant to Rule 8.03, Tenn. R. Civ. P.,
res judicata is an affirmative defense that must be specifically raised. Absent any
record that such a defense was raised and litigated in the trial court, we will consider it
waived. There is no transcript of any trial court hearing nor any written response or
pleading that reflects that the claim was presented to the trial court. In this respect, it
was the defendant’s responsibility, as the appellant, to insure that the record on appeal
3
contained all of the trial court actions and events needed to convey a fair, accurate and
complete account of what transpired relative to the issue being appealed. See T.R.A.P.
24; State v. Groseclose, 615 S.W.2d 142, 147 (Tenn. 1981). Thus, even if the
defendant did raise the matter in the trial court, the lack of a record on appeal of such
matter requires us to presume that the trial court ruled correctly. See State v. Jones,
623 S.W.2d 129, 131 (Tenn. Crim. App. 1981).
In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
_________________________
Joseph M. Tipton, Judge
CONCUR:
__________________________
Gary R. Wade, Judge
__________________________
William M. Barker, Judge
4