             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                               FILED
                                                                January 27, 1999
RAYMOND O. HAMPTON,                        )
                                                              Cecil W. Crowson
                                           )
                                                             Appellate Court Clerk
       Plaintiff/Appellant,                )
                                           )      Appeal No.
                                           )      01-A-01-9712-CH-00721
VS.                                        )
                                           )      Davidson Chancery
                                           )      No. 97-2692-I
TENNESSEE TRUCK SALES, INC.                )
and DONALD A. TOMLINSON,                   )
                                           )
       Defendants/Appellees.               )


                  ORD ER O N PE TITION TO REHE AR

              The appellees have filed a Petition to Rehear asserting that the court

overlooked the record from the former case in deciding that the record did not contain

evidence on which a judgment of res judicata (or collateral estoppel) could be based.

Attached to the petition are copies of the papers filed in the chancery court in the

former case with a document called “Joint Notice of Filing” addressed to the Court of

Appeals but filed in the chancery court on September 16, 1998.             There is no

certification by the Clerk and Master and this court’s docket does not indicate that the

filing was ever forwarded to this court. We do find in this record, however, a motion

to consolidate the two records and an order reserving judgment on that motion

because the time for filing a Rule 11 application to the Supreme Court had not

expired. The order further states that the reservation was without prejudice to the

right of the parties to obtain a duplicate record from the trial court for filing in this

appeal. Apparently the filing in the chancery court on September 16, 1998 was an

effort on the part of the parties to take advantage of this court’s suggestion, but the

record from the chancery court was never filed in this court.




              All of that being said, we have examined the record furnished with the
Petition to Rehear and it confirms our initial conclusion that the breach of a bailment

contract was not part of the prior action. The appellees assert that res judicata

applies to all issues that could have been raised in the former action, but the truck

was still in the possession of the defendants when the agreed order was entered

terminating that action. The alleged breach of the bailment contract did not occur until

the former action had been terminated. We do not see how the appellees can assert

that the issues involving a breach of the bailment relationship could have been raised

in that action.



              The appellant did seek Rule 60 relief from the final judgment in the

former case so that he could assert a claim essentially the same as the one raised in

this case. The chancellor denied that relief on the ground of the appellant’s laches,

and that judgment was affirmed by this court. But as we pointed out in the original

opinion that judgment was on the Rule 60 motion, not on the merits of the bailment

claim. Therefore, it is ordered that the Petition to Rehear be overruled.




                                   _______________________________________
                                   BEN H. CANTRELL, PRESIDING JUDGE, M.S.



                                   ______________________________________
                                   WILLIAM C. KOCH, JR., JUDGE



                                   ______________________________________
                                   WILLIAM B. CAIN, JUDGE




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