Freda Boyce and Marvell Boyce v. LPP Mortgage LTD

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 17, 2013 Session

FREDA BOYCE and MARVELL BOYCE v. LPP MORTGAGE LTD.

Direct Appeal from the Chancery Court for Shelby County
No. CH-11-0985-3 Kenny W. Armstrong, Chancellor

No. W2012-02725-COA-R3-CV - Filed November 20, 2013

This case involves the application of the doctrine of res judicata. The parties
previously engaged in litigation in the General Sessions Court regarding possession of a
foreclosed property. The homeowners attempted to assert that the mortgage company did not
have proper title to the property prior to initiating foreclosure proceedings. The parties and
the trial court all apparently concluded that the General Sessions Court lacked jurisdiction
to inquire into the merits of the title based on Tennessee Code Annotated Section 29-18-119.
Accordingly, the General Sessions Court entered judgment in favor of the mortgage
company. The homeowners subsequently filed an action in the Chancery Court, alleging that
the mortgage company committed fraud in foreclosing the property because it had not
acquired proper title to the property. The Appellee, having hired a new attorney, asserted that
the issue should have been alleged as a defense to the General Sessions Court action, and
was, therefore, barred by the doctrine of res judicata. The Chancery Court agreed and
dismissed the homeowners’ action on the basis of res judicata. We affirm and remand.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.

Archie Sanders, III, Memphis, Tennessee, for the appellants, Freda Boyce and Marvell
Boyce.

Cannon F. Allen and J. Bennett Fox, Jr., Memphis, Tennessee, for the appellee, LPP
Mortgage LTD.

OPINION
 I. Background

Because this case was decided on summary judgment, the facts are taken from the
parties’ statements of undisputed fact filed in the trial court. On December 6, 2006, the
Plaintiffs/Appellants Freda Boyce and Marvell Boyce (together, “Appellants”) signed a note
for $200,000.00 to purchase real property at 1715 Belledeer Drive. Appellants obtained the
loan to finance the purchase from New Century Mortgage. On December 5, 2008,
Defendant/Appellee LPP Mortgage LTD (“Appellee”) allegedly acquired the $200,000.00
note and the deed of trust on the property. According to its brief, Appellee also received an
assignment of the note pursuant to a Master Mortgage Sale Agreement on March 31, 2008.

The Appellants paid their monthly mortgage payment for several years, but fell
behind on their payments around April of 2010. The Appellants defaulted on the note in May
of 2010. Consequently, the Appellee initiated foreclosure proceedings in November 2010.
A foreclosure sale occurred on February 14, 2011. However, the Appellants refused to vacate
the property.

On March 21, 2011, the Appellee initiated a Forcible Entry and Detainer (“FED”)
action in the Shelby County General Sessions Court against the Appellants for possession of
the property. The Appellants appeared and argued that the foreclosure was void because the
Appellee did not have good title to the property. Specifically, the Appellants asserted a claim
of fraud and that “the property had not been properly transferred” to the Appellee. However,
the Appellee took the position that Tennessee law did not allow the General Sessions Court
to inquire into the merits of the Appellee’s interest in the title based on Tennessee Code
Annotated Section 29-18-119(c), discussed in detail infra. The trial court apparently agreed
with the Appellee’s interpretation of the statute and, thus, considered only whether the proper
foreclosure procedures were followed. No facts supporting the fraud claims were adduced
in the General Sessions Court and the General Sessions Court judge made no findings as to
these allegations. Appellee was ultimately awarded possession of the property. The date for
execution of the judgment was extended beyond the statutory ten-day period by agreement
of the parties to allow an action in Chancery Court to be filed. The Chancery Court action
was apparently meant to adjudicate the issue regarding the merits of Appellee’s title. Thus,
no appeal was taken from the General Sessions Court order awarding possession of the
property to the Appellee and it became final.

Thereafter, on June 9, 2011, Appellants filed a complaint for Declaratory Judgment
and to Set Aside Foreclosure, for Ex Parte Temporary Restraining Order and Injunctive
Relief and for Damages and Other Legal and Equitable Relief in the Shelby County Chancery
Court. The complaint alleged that Appellee did not legally acquire the deed of trust and
indebtedness with regard to the Appellants’ property. On September 1, 2011, Appellee filed

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a Motion to Dismiss the complaint, which was denied by order of October 27, 2011.

Thereafter, on August 23, 2012, the Appellee, having retained different counsel, filed
a motion for summary judgment and statement of undisputed facts, arguing that the claim
was barred by res judicata, based on the case of Davis v. Williams, No. E2010-01139-COA-
R3-CV, 2011 WL 335069, (Tenn. Ct. App. Jan. 31, 2011), discussed in detail infra. The
Appellants filed a response to the Appellee’s motion, as well as their own statement of
undisputed facts, which the Appellee did not contest.1 In their response to the motion, the
Appellants disputed that the allegations of fraud and improper transfer currently before the
trial court had been decided on the merits in the original FED action in General Sessions
Court, and asserted that disputes of fact precluded summary judgment. The trial court entered
an order granting summary judgment in favor of the Appellee on October 22, 2012.
Specifically, the trial court found that:

4. Under Tennessee law, the [Appellants] had the right to
raise the defense of wrongful foreclosure in the previously
decided General Sessions action on May 11, 2011. [Appellants]
contend that 1) they raised the issue of “good title” in the
General Sessions action, and 2) the Court determined that it
could not legally consider those arguments and did not make a
ruling concerning those issues. No transcript of the proceedings
in General Sessions exists.
5. The basis of the [Appellants’] claim in this Chancery
Court action is that [Appellee] did not have good title to
foreclose on the subject property. The [Appellants] admitted
that they were in default on the note and the mortgage held by
[Appellee]. The [Appellants] did not request additional time to
pursue discovery prior to this Court’s ruling on the summary
judgment motion.
6. Having tried the General Sessions action and lost and
failing to pursue on an appeal of the General Sessions ruling,
[Appellants] have forfeited their opportunity to assert this claim
in this Court since the General Sessions decision is final and the
detainer action and the present action arose out of the same
transaction.

1
It is well-settled that, when a party fails to respond to the other party's statement of undisputed
facts, the court may consider the facts admitted. Holland v. City of Memphis, 125 S.W.3d 425, 428–29
(Tenn. Ct. App. 2003) (“Thus the material facts set forth in the statement of [a] party may be deemed
admitted in the absence of a statement controverting them by the opposing party.”).

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 7. The doctrine of res judicata applies and precludes a
second suit between these same parties . . . with respect to all
issues that were or could have been litigated in the earlier action
in General Sessions Court.

* * *

11. Because there is no genuine issue as to any material fact
relating to the finality of the General Sessions judgment and the
fact that the claims pressed in this Court [] arise from and are
related to the claims in the General Sessions proceeding, all
[Appellants’] claims against [the Appellee] should be dismissed
with prejudice.

The Appellants filed a timely notice of appeal.

II. Issues Presented

The Appellants raise one issue, which is taken from their brief:

1. Whether the trial court erred in granting the Appellee’s
Motion for Summary Judgment on the ground that the
Appellants’ claim was barred by the doctrine of res
judicata?

III. Standard of Review

A trial court’s decision to grant a motion for summary judgment presents a question
of law. Our review is therefore de novo with no presumption of correctness afforded to the
trial court’s determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). This Court
must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been
satisfied. Abshure v. Methodist Healthcare–Memphis Hosps., 325 S.W.3d 98, 103 (Tenn.
2010).

When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party’s claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008). However,

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“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or
shutup’ or even to cast doubt on a party’s ability to prove an element at trial.” Id. at 8. If the
moving party’s motion is properly supported, “The burden of production then shifts to the
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5(citing Byrd
v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The non-moving party may accomplish this by:
“(1) pointing to evidence establishing material factual disputes that were overlooked or
ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;
(3) producing additional evidence establishing the existence of a genuine issue for the trial;
or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.
R. Civ. P., Rule 56.06.” Martin v. Norfolk Southern Railway. Co., 271 S.W.3d 76, 84
(Tenn. 2008) (citations omitted).

When reviewing the evidence, we must determine whether factual disputes exist. In
evaluating the trial court’s decision, we review the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. Stovall
v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed fact, we must
“determine whether the fact is material to the claim or defense upon which summary
judgment is predicated and whether the disputed fact creates a genuine issue for trial.”
Mathews Partners, 2009 WL 3172134 at *3 (citing Byrd, 847 S.W.2d at 214). “A disputed
fact is material if it must be decided in order to resolve the substantive claim or defense at
which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a
reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id.
“Summary Judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion.” Landry v. South Cumberland Amoco, et
al, No. E2009-01354-COA-R3-CV, (Tenn. Ct. App. March 10, 2010) (citing Carvell v.
Bottoms, 900 S.W.2d 23 (Tenn. 1995)). “When considering the evidence, the reviewing court
must consider the evidence in a light most favorable to the non-moving party and must
resolve all reasonable inferences in the nonmoving party's favor.” King v. Betts, 354 S.W.3d
691, 712 (Tenn. 2011) (citing B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318
S.W.3d 839, 845 (Tenn. 2010).

IV. Res Judicata

The issues in this case concern the application of the doctrine of res judicata. As
recently explained by our Supreme Court:

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. Creech v. Addington, 281 S.W.3d

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 363, 376 (Tenn. 2009); Richardson v. Tennessee Bd. of
Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995) (quoting Goeke v.
Woods, 777 S.W.2d 347, 349 (Tenn. 1989)). It is a “rule of
rest,” Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn.
1976), 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. In re Estate of Boote, 198 S.W.3d 699, 718 (Tenn. Ct.
App. 2005); Sweatt v. Tennessee Dep't of Corr., 88 S.W.3d
567, 570 (Tenn. Ct. App. 2002).
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 asserted in both
suits, and (4) that the underlying judgment was final and on the
merits. Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App.
1998); see also Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct.
App .1990). 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. In re Estate of Boote, 198 S.W.3d
at 719.

Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012). Res judicata applies in FED actions:

The doctrine of claim preclusion applies to actions of
forcible entry and detainer. A judgment in an action of forcible
entry and detainer is conclusive and bars further litigation
between the parties as to matters which could and should have
been adjudicated, as well as to matters put in issue and
determined, and, generally such judgment may be pleaded in bar
to another action of forcible entry and detainer.
A judgment in an action of forcible entry and detainer
does not bar a subsequent action under the doctrine of claim
preclusion where each is a separate and distinct cause of action,
or where the matters in the second action could not have been
litigated in the forcible entry and detainer action, such as claims
for damages.

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50 C.J.S. Judgments § 1193 (footnotes omitted).

Thus, the underlying tenet of res judicata is to bar a litigant from raising an issue that
was or could have been litigated in a previous action. Appellants first argue that the Chancery
Court erred in concluding that the Appellants’ claim of fraud regarding the title could have
been litigated in the General Sessions action, citing Tennessee Code Annotated Section 29-
18-119. If the issue of the merits of the title could not have been litigated in the General
Sessions Court, then res judicata does not operate to bar the Appellants from raising the issue
in a subsequent action in Chancery Court. Section 29-18- 119 provides that in an FED action:

(b) The general sessions judge will try every case upon its merits
and ascertain whether the plaintiff or defendant is entitled to the
possession of the premises agreeably to the laws governing such
cases, and give judgment accordingly.
(c) The estate, or merits of the title, shall not be inquired
into.

(Emphasis added). Based on this statute, Appellants argue that the General Sessions judge
was not authorized to determine whether the Appellee had proper title to the property at issue
in order to initiate foreclosure proceedings.

This issue was recently examined by this Court in Davis v. Williams, E2010-01139-
COA-R3-CV, 2011 WL 335069 (Tenn. Ct. App. Jan. 31, 2011). In Davis, this Court
concluded that the General Sessions Court does have jurisdiction to consider the merits of the
title, when the issue is raised as a defense to an FED action. The Court further concluded that
the failure to raise such a defense in the FED action resulted in the homeowner being barred
from raising the merits of title as an issue in a subsequent proceeding. In the case, the sellers
of the property conceded that the General Sessions Court did not have “jurisdiction to
entertain the question of title,” presumably based on the above cited statute. According to the
Court, however, the sellers maintained that “since wrongful or fraudulent foreclosure could
have been raised as a defense in the unlawful detainer action, but was not, it cannot now be
the basis of a new action.” The Court agreed with the Sellers, explaining:

The courts of this state have consistently applied the
doctrine of res judicata “to protect individuals from the burden
of litigating multiple lawsuits, to promote judicial economy, and
to promote the policy favoring reliance on final judgments by
minimizing the possibility of inconsistent decisions.” Gerber v.
Holcomb, 219 S.W.3d 914, 918 (Tenn. Ct. App. 2006).

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 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
res judicata and may not again be litigated in a
subsequent action between the same parties or
their privies, regardless of the form the issue may
take in the subsequent action whether the
subsequent action involves the same or a different
form or proceedings, or whether the second action
is upon the same or a different cause of action,
subject matter, claim, or demand, as the earlier
action. In such cases, it is also immaterial that the
two actions are based on different grounds, or tried
on different theories, or instituted for different
purposes, and seek different relief . . . .

Id. at 919 (quoting Cotton v. Underwood, 223 Tenn. 122, 442
S.W.2d 632, 635 (1969)).

* * *

There is absolutely no doubt that wrongful foreclosure can
be raised as an affirmative defense to an unlawful detainer action
brought by the purchaser of property in foreclosure. Beasley,
[No. W2006-00386-COA-R3-CV,] 2007 WL 77289 at *6–7
[(Tenn. Ct. App. Jan. 11, 2007)]; Federal Nat'l Mortgage Ass'n
v. Robilio, No. W2007-01758-COA-R3-CV, 2008 WL 2502114
at *5 (Tenn. Ct. App. June 24, 2008). “Where title bears directly
upon the right of possession . . . a party may legitimately
interpose the issue.” Beasley, 2007 WL 77289 at *6. It is the
purchaser's “constructive entry” onto the premises through the
title obtained in foreclosure that “provides the basis for
maintaining the unlawful detainer action.” Id. at *7.
When the holding in Gerber is examined with reference
to the holding in Beasley, it is inescapable that even though fraud
in the foreclosure was not raised as a defense in the unlawful
detainer action, it was conclusively determined not to exist. “In

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 failing to raise these matters [concerning fraud in the foreclosure]
which could have been litigated and decided as an incident to or
essentially connected with the subject matter of the prior
litigation, [the Buyers] forfeited [their] opportunity to assert
[fraud] under the doctrine of res judicata.” Gerber, 219 S.W.3d
at 918.

Davis, 2011 WL 335069, at *2–*4.

From our reading, then, while the merits of title cannot be considered as a basis for
affirmative relief in the General Sessions Court, an argument as to the merits of title is an
appropriate defense to an FED action in General Sessions Court, despite the language of
Tennessee Code Annotated Section 29-18-119(c). Indeed, as explained in a case relied upon
in the Davis Opinion:

FED actions concern only the right to possession. Newport
Hous. Auth., 839 S.W.2d at 89. In these summary proceedings,
“the estate, or merits of the title, shall not be inquired into.”
Tenn. Code Ann. § 29-18-119(c) (2000). At first glance, it would
seem that wrongful foreclosure, being tantamount to an assertion
of title, could not constitute a defense in this action. Where title
bears directly upon the right of possession, however, a party may
legitimately interpose the issue. Allison v. Casey, 63 Tenn. 587
(Tenn.1874) (allowing evidence of title as proof of right to
control and rent out property); Phillips v. Sampson, 39 Tenn. 429
(Tenn.1859); Settle v. Settle, 29 Tenn. 504 (Tenn.1850). For
example, a court may inquire into title when a claimant has
fraudulently represented his title to another and induced him to
lease the property. Phillips, 39 Tenn. at 429.
Additionally, FED actions cannot be resolved in favor of
a claimant when title, if bearing directly on his immediate right
to possession, is questionable. See Elliott v. Lawless, 53 Tenn.
123 (Tenn.1871); 35A Am.Jur.2d Forcible Entry & Detainer §
50 (2006) (“[I]f the issue of title is germane to the issue of who
has the present right of possession, questions of title may be
raised . . . . However, such an issue may result in the case being
removed from the summary proceedings contemplated by a
forcible entry and detainer action, or the claimant may be
required to establish his or her superior title prior to bringing the
summary proceeding.” (footnotes omitted)).

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Beasley, 2007 WL 77289, at 6. Thus, the Beasley Court concluded that questions of title could
be raised as defenses to FED actions in General Sessions Court.

The Davis and Beasley holdings were recently reexamined and upheld in Foster v.
Federal Nat. Mortg. Ass'n, No. E2012-02346-COA-R3CV2013, 2013 WL 3961193 (Tenn.
Ct. App. July 31, 2013). The Court in Foster likewise held that the General Sessions Court
has jurisdiction to entertain the question of title as a defense to a FED action. Id. at *3–*4.
Thus, the Foster court, like the Court in Davis, concluded that res judicata could apply based
on the homeowner’s failure to litigate that issue in the original suit. Id.

The decisions in Beasley, Davis, and Foster are authoritative and binding on this
Court. As explained by the Tennessee Supreme Court:

The sound principle of stare decisis requires us to uphold
our prior precedents to promote consistency in the law and to
promote confidence in this Court's decisions. Carroll v. Whitney,
29 S.W.3d 14, 25 (Tenn. 2000) (Anderson, C.J., dissenting). This
Court will overturn a settled rule of law only when there is an
error in the precedent, when the precedent is obsolete, when
adhering to the precedent would cause greater harm to the
community than disregarding stare decisis, or when the prior
precedent conflicts with a constitutional provision. In re Estate
of McFarland, 167 S.W.3d 299, 306 (Tenn. 2005).

* * *

In addition, we have long adhered to the rule that when a
prior decision has addressed the construction and operation of a
statute, the principle of stare decisis will apply unless the General
Assembly acts to change the statute. LaManna v. Univ. of Tenn.,
225 Tenn. 25, 462 S.W.2d 877, 881 (1971).

Cooper v. Logistics Insight Corp., 395 S.W.3d 632, 639 (Tenn. 2013). Although the decision
in Davis was only two years ago, the decision in Beasley allowing a party to “interpose the
issue” of the merits of the title in the General Sessions Court was decided approximately six
years ago. In that time, however, the General Assembly has taken no action to alter the
Court’s decision. Further, the Appellants have cited no law that leads this Court to conclude
that the holdings in these cases are incorrect, obsolete, would cause harm to the community,
or that the conclusion conflicts with a constitutional provision. See id. Based on the foregoing
authority, we conclude that the General Sessions Court had jurisdiction to consider the merits

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of the title held by the Appellee as a defense to the FED action. Accordingly, res judicata may
apply to bar litigation of this issue in a subsequent action.

Appellants next argue that, even if the issue of the merits of the title could have been
litigated in the General Sessions Court, the Chancery Court erred in granting summary
judgment to the Appellee when there is a dispute as to whether the issue was decided “on the
merits.” As previously discussed, one of the essential elements required to apply res judicata
is that “that the underlying judgment was final and on the merits.” Jackson, 387 S.W.3d at
491 (citing Lien, 993 S.W.2d at 56). Because this case was determined on a motion for
summary judgment, Appellee, as the moving party, had the burden to show that there were
no material facts in dispute and that it was entitled to judgment as a matter of law. See Tenn.
R. Civ. P. 56.04. Specifically with regard to res judicata:

In order to succeed on a plea of res judicata, or estoppel
by judgment, the party raising the defense must plead it, Tenn. R.
Civ. P. 8.03, and must carry the burden of proving it. Carter
County v. Street, 36 Tenn. App. 166, 252 S.W.2d 803 (1952). To
carry that burden, the party raising the defense must generally put
in evidence the record or a copy of the record of the former case.
American National Bank v. Bradford, 28 Tenn. App. 239, 188
S.W.2d 971 (1945). If the record does not conclusively show that
a particular matter was determined in the former proceeding, the
party relying on res judicata as a defense must supplement the
record by other proof. Carter County v. Street, 36 Tenn. App.
166, 252 S.W.2d 803 (1952). “Parol evidence is always
admissible to show the fact, even if it appears prima facie that a
question has been adjudicated, where the record does not show
that it was actually settled.” Fowlkes v. State, 82 Tenn. (14 Lea)
14, 19 (1884); see also Borches & Co. v. Arbuckle Bros., 111
Tenn. 498, 78 S.W. 266 (1903).

Gregory v. Gregory, 803 S.W.2d 242, 243–44 (Tenn. Ct. App. 1990). In addition, “[i]f there
is any uncertainty to the matter formerly adjudicated, the burden of showing it with sufficient
certainty by the record or extrinsically is upon the party who claims the benefit of the former
judgment.” Id. at 244 (citing Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841, 843 (1943)).

To support its res judicata defense, the Appellee submitted the detainer warrant that
was granted by the trial court. The detainer warrant specifically grants Appellee possession
of the subject property. This is exactly the type of judgment that was held to have preclusive
effect in Foster. See Foster, 2013 WL 3961193, at *4. In addition, Appellee, in its statement

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of undisputed facts, states that the FED action was “tried on the merits.” In response to this
statement, the Appellants contend only that the General Sessions Court did not consider the
fraud allegations, but only determined whether proper foreclosure proceedings were followed.
In addition, the Appellants admitted that the judgment of the General Sessions Court was
final.

Essentially, the Appellants argue that Appellee has not conclusively shown that the
issues of fraud regarding the title of the property were decided on their merits. To support this
argument, Appellants cite to this Court’s decision in Lewis v. Muchmore, 26 S.W.3d 632
(Tenn. Ct. App. 2000). In Lewis, this Court concluded that the trial court erred in finding that
the Plaintiff’s arguments were barred by res judicata when there was “no evidence in the
record why the first general sessions court ruled as it did in the prior FED proceedings and
whether or not it was decided on the merits or dismissed because of a procedural defect.” Id.
at 637. Specifically, in Lewis, the Plaintiffs had brought a prior FED action against the
Defendants in General Sessions Court, which resulted in a verdict for the Defendants. Id. at
636. In addition, the record indicated that the prior General Sessions judgment may have been
decided on a procedural defect, as the Plaintiff admitted that she had not provided proper
notice to the Defendants. Id. at 637. In contrast, in this case, the prior FED action was not
dismissed or denied, but it was granted and the Appellee was awarded possession of the
property. Thus, the Appellees, unlike the Defendants in Lewis, have met their burden to show
undisputed evidence that the original judgment awarding them possession was on the merits.

Appellants argue, however, that despite the award of possession being decided on the
merits, there is no indication from the record that the fraud issue was decided on the merits.
Appellants’ argument, while novel, is not persuasive. As previously discussed, res judicata
bars claims both that have been litigated and that could have been litigated in the previous
suit. To require that the specific claim asserted in the subsequent suit had to have been
decided on its merits would be to hold that the claim must have actually been asserted in the
previous suit. Thus, for this Court to hold that res judicata cannot apply unless the specific
claim at issue, rather than the judgment on the entire action, be decided on its merits, would
contradict the basic tenets of res judicata jurisprudence. Instead, the prior suit need not
adjudicate every issue that could have possibly been litigated on the merits, it need only
“conclude the rights of the parties on the merits.” Goeke v. Woods, 777 S.W.2d 347, 349
(Tenn. 1989). In this case, the Appellants asserted the issue of the merits of title as a defense
to the detainer action. The trial court, after considering the issue, awarded possession to the
Appellee. Indeed, even the Appellants admit in their statement of undisputed facts that the
General Sessions Court considered and rejected their fraud allegations on the basis that the
General Sessions Court was not the proper court to dispose of that matter. While that decision
was erroneous, see Davis, 2011 WL 335069, at *2–*4, it does not prevent this Court from
concluding that the judgment awarding possession to Appellee was on the merits. See

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Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103
(1981) (“[T]he res judicata consequences of a final, unappealed judgment on the merits [are
not] altered by the fact that the judgment may have been wrong or rested on a legal principle
subsequently overruled in another case.”).

Based on the foregoing, we conclude that all of the required elements of res judicata
have been met in this case. First, based on the decision in Davis, the judgment in the General
Sessions Court was “rendered by a court of competent jurisdiction.” Jackson, 387 S.W.3d at
491 (citing Lien, 993 S.W.2d at 56). Second, the Appellants do not dispute that the “same
parties . . . were involved in both suits” and that the issues in both cases involve the same
cause of action. Id. Finally, we have concluded that the undisputed facts show that “the
underlying judgment was final and on the merits.” Id. Under these circumstances, unless
some other law operated to bar application of res judicata, we conclude that the trial court did
not err in concluding that Appellants’ allegations regarding the merits of title were barred by
the doctrine of res judicata.

IV. Estoppel

Appellants next argue that Appellee was barred from asserting the defense of res
judicata by application of the doctrine of judicial estoppel. Specifically, the Appellants assert
that it is undisputed that the Appellee took the position in the General Sessions Court that the
court did not have jurisdiction to inquire into the merits of the Appellee’s title; in the
Chancery Court, however, the Appellee argued that the General Sessions Court was the
appropriate venue for such a claim. Thus, the Appellants argue that the Appellee should not
be permitted to take a position in the Chancery Court that was inconsistent with its position
in the General Sessions Court.

Under the doctrine of judicial estoppel,
a party will not be permitted to occupy inconsistent positions or
to take a position in regard to a matter which is directly contrary
to, or inconsistent with, one previously assumed by him, at least
where he had or was chargeable with, full knowledge of the facts,
and another will be prejudiced by this action.

Regions Financial Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 402 (Tenn. Ct. App. 2009)
(citing Obion County v. McKinnis, 211 Tenn. 183, 364 S.W.2d 356, 357 (1962)). The
Tennessee Supreme Court has explained the doctrine of judicial estoppel this way:

The distinctive feature of the Tennessee law of judicial
estoppel (or estoppel by oath) is the expressed purpose of the

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 court, on broad grounds of public policy, to uphold the sanctity
of an oath. The sworn statement is not merely evidence against
the litigant, but (unless explained) precludes him from denying
its truth. It is not merely an admission, but an absolute bar.

Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn.1999) (quoting Sartain v. Dixie Coal & Iron
Co., 150 Tenn. 633, 266 S.W. 313, 318 (1924)). While the doctrine of judicial estoppel is
applied to prohibit a party from taking “a position that is directly contrary to or inconsistent
with a position previously taken by the party,” Guzman v. Alvares, 205 S.W.3d 375, 382
(Tenn. 2006), the doctrine generally only applies to “sworn statements made in the course of
judicial proceedings.” Sartain, 266 S.W. at 316; accord Carvell v. Bottoms, 900 S.W.2d 23,
30 (Tenn.1995) (noting that “parties are ‘judicially estopped’ from taking contrary sworn
positions on the same issue in different lawsuits”).

The Tennessee Supreme Court recently clarified the doctrine of judicial estoppel in
Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303 (Tenn. 2009).
Specifically, the Cracker Barrel Court limited application of judicial estoppel to instances
where a party takes a position inconsistent with a previous sworn statement, rather than mere
legal positions, overruling a previous Court of Appeals decision. Id. at 314–15. The
Tennessee Supreme Court explained:

While our appellate courts most often have applied the
doctrine of judicial estoppel only to prevent a party from
attempting to contradict by oath a statement of fact previously
made under oath, [] Werne v. Sanderson, 954 S.W.2d 742, 745
(Tenn. Ct. App. 1997) (noting that “in order for the judicial
estoppel to apply, the party against whom the estoppel is urged
must have made a statement of fact under oath that he or she later
seeks to contradict”), both this Court and the Court of Appeals
have sometimes applied the doctrine where no oath was involved.
E.g., Nashville Trust Co. v. Lebeck, 197 Tenn. 164, 270 S.W.2d
470, 479 (1954) (noting that “‘[w]hile the law of judicial estoppel
is ordinarily applied to one who has made oath to a state of facts
in a former judicial proceeding which in a later proceeding he
undertakes to contradict, yet it is frequently applied, where no
oath is involved, to one who undertakes to maintain inconsistent
positions in a judicial proceeding’ ”) (quoting Stearns Coal &
Lumber Co. v. Jamestown R. Co., 141 Tenn. 203, 208 S.W. 334,
334 (1919)). This inconsistent application of the doctrine of
judicial estoppel is illustrated, for example, by the Court of

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 Appeals' most recent discussion of the issue:

There are two distinct branches of judicial
estoppel: estoppel by oath and estoppel by
inconsistent position. The first branch is designed
to “uphold the sanctity of an oath.” “The sworn
statement is not merely evidence against the
litigant, but (unless explained) precludes him from
denying its truth.” The second branch[, in which
no oath is required,] is “founded on the
administration of justice and seek[s] to prevent
litigants from unfairly benefitting from a strategic
shift in legal position.” Both branches of judicial
estoppel aim to prevent parties from “play[ing]
fast-and-loose with the courts.”

Johnson v. Lenoir City Housing Auth., No. E2006-02774-COA-
R3-CV, 2008 WL 836364, at *7 (Tenn. Ct. App. Mar. 31, 2008)
(no app. for perm. app. filed) (citations omitted).
Although this Court agrees that a party may be estopped
from contradicting a sworn statement previously made or from
gaining an unfair advantage by taking inconsistent positions in a
legal proceeding, we do not agree with the Court of Appeals'
conclusion that the doctrine of judicial estoppel should be applied
in both instances. Instead, we take this opportunity to clarify that
the doctrine of judicial estoppel is applicable only when a party
has attempted to contradict by oath a sworn statement previously
made. See Allen v. Neal, 217 Tenn. 181, 396 S.W.2d 344, 346
(1965) (noting that “[j]udicial estoppels arise from sworn
statements made in the course of judicial proceedings, generally
in a former litigation, and are based on public policy upholding
the sanctity of an oath and not on prejudice to adverse party by
reason thereof, as in the case of equitable estoppel”). In those
instances where no oath is involved but the party is attempting to
gain an unfair advantage by maintaining inconsistent legal
positions, the doctrine of equitable estoppel should be applied.

Cracker Barrel, 284 S.W.3d at 314–15.

In this case it is undisputed that the position at issue is a legal position, rather than a

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sworn statement. Accordingly, the doctrine of judicial estoppel is not applicable to prevent
Appellee from raising its res judicata defense in the Chancery Court.

The Appellants also argue that Appellee should be barred from asserting the defense
of res judicata through application of the doctrine of equitable estoppel. We note, however,
that from our review of the record in this case, it appears that the Appellants failed to raise the
issue of equitable estoppel to the Chancery Court. Generally, when a party fails to raise an
issue in the trial court, it will be deemed waived on appeal. See Powell v. Cmty. Health Sys.,
Inc., 312 S.W.3d 496, 511 (Tenn. 2010). However, even assuming arguendo that this issue
was properly raised, we conclude that equitable estoppel is not applicable in this case.

This Court recently discussed the doctrine of equitable estoppel, stating:

To successfully invoke the doctrine of equitable estoppel,
a plaintiff must establish the following elements with respect to
the party against whom the plaintiff asserts the doctrine:

(1) Conduct which amounts to a false
representation or concealment of material facts, or,
at least, which is calculated to convey the
impression that the facts are otherwise than, and
inconsistent with, those which the party
subsequently attempts to assert; (2) Intention, or at
least expectation that such conduct shall be acted
upon by the other party; (3) Knowledge, actual or
constructive of the real facts.

Osborne v. Mountain Life Ins. Co., 130 S.W.3d 769, 774 (Tenn.
2004).

Equity Mortg. Funding, Inc. of Tennessee v. Haynes, No. M2011-01717-COA-R3CV, 2012
WL 982958 (Tenn. Ct. App. 2012) (perm. app. denied Aug. 15, 2012). Accordingly, in order
to apply equitable estoppel, the opposing party must have either concealed material facts or
made a false representation of material “facts, either past or present.” Consumer Credit
Union v. Hite, 801 S.W.2d 822, 825 (Tenn. Ct. App. 1990). Legal arguments, however, are
not facts. Black’s Law Dictionary describes the distinction between facts and arguments
regarding the law, stating:

“Fact” is very frequently used in opposition to “law.” . . . A
“fact”, as distinguished from the “law”, may be taken as that out

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 of which the point of law arises, that which is asserted to be or
not to be, and is to be presumed or proved to be for the purpose
of applying or refusing to apply a rule of law. . . . Law is a
principle; fact is an event. Law is conceived; fact is that which
has been according to or in contravention of the rule.

Black’s Law Dictionary 532 (5th ed. 1979). Indeed, the situation presented by this case is
similar to the situation wherein a party makes a material factual misrepresentation in order to
induce another party to make a contract. In that situation, Williston on Contracts notes that
misstatements as to the law do not qualify as material factual misrepresentations:

It is well settled that a claim of fraud in the making of a
contract cannot generally be supported by proof of misstatements
as to matters of law. On this principle, a conscious misstatement
of the meaning of certain terms in a written contract has been
held immaterial.
The rule, which is in essence an application of the broader
principle that fraud must rest on a misrepresentation of a matter
of fact, and cannot be supported by a misstatement of a matter of
opinion, is based on the principle that everyone is equally capable
of determining the law, is presumed to know the law and is
bound to take notice of the law and, therefore, in legal
contemplation, cannot be deceived by representations concerning
the law or permitted to say he or she has been misled.

26 Williston on Contracts § 69:10 (4th ed.) (noting certain exceptions not applicable in this
case). Further, equitable estoppel requires “at a minimum” that the party raising the defense
lacked the “opportunity to know the truth.” Werne v. Sanderson, 954 S.W.2d 742, 746 (Tenn.
Ct. App.1997) (citing Campbell v. Precision Rubber Products Corp., 737 S.W.2d 283, 286
(Tenn. Ct. App. 1987)). In this case, it is undisputed that both the Davis and the Beasley
Opinions were rendered prior to the hearing in the General Sessions Court. Accordingly,
Appellants, through diligent research, had every opportunity to know of these decisions.
Under these circumstances, we decline to conclude that the doctrine of equitable estoppel is
applicable in this case.

V. Conclusion

The judgment of the Chancery Court of Shelby County is affirmed and this matter is
remanded to the trial court for further proceedings as may be necessary and are in accordance
with this Opinion. Costs of this appeal are taxed to Appellants Freda Boyce and Marvell

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Boyce, and their surety.

_________________________________
J. STEVEN STAFFORD, JUDGE

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