                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs January 19, 2001

                 IN RE: ESTATE OF CONSTANTINE ANAGNOST

                      Appeal from the Chancery Court for Knox County
                        No. 55484-1    Daryl R. Fansler, Chancellor

                                     FILED APRIL 19, 2001

                                 No. E2000-02321-COA-R3-CV


This litigation involves a claim against an estate. The claimant asserts that the decedent breached
a contract which purportedly obligated the decedent to convey to the claimant a certain parcel of
property upon the claimant’s satisfaction of his contractual obligations. The estate moved for
summary judgment, arguing that the issues relating to the existence of the purported contract had
been decided adversely to the claimant in an earlier suit, thereby barring the present claim under the
doctrine of res judicata. The trial court granted summary judgment to the estate, and the claimant
now appeals, asserting that the prior judgment does not bar the instant claim. 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 HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

George Anagnost, Knoxville, Tennessee, Pro Se.

Melinda Meador, Knoxville, Tennessee, for the appellee, Mrs. Virginia Anagnost, Personal
Representative for the Estate of Constantine Anagnost.

                                             OPINION

                                                  I.

        The appellant, George Anagnost, and his sister, Athena Anagnostopoulos, owned a tract of
property located in Knox County that was sold on August 23, 1991, in satisfaction of unpaid city and
county property taxes. Knox County purchased the property at the tax sale for $84,716.07. Shortly
thereafter, George’s brother, Constantine Anagnost, and his wife, Virginia Anagnost, purchased the
property from Knox County for $93,187.68. Constantine and his wife borrowed $80,000 from
Valley Fidelity Bank and Trust Company to partially fund the purchase, and the property was
conveyed to them subject to the right of redemption of George and Athena. The sale of the property
to Constantine and Virginia was confirmed by a judgment entered by Chancellor Frederick D.
McDonald on October 14, 1991.

      George alleges that during the one-year redemption period, he and Constantine agreed that
George would manage the property and pay Constantine’s note to the bank, and that when the note
was eventually paid off, Constantine would return the property to George. George began making
the monthly payments of $892.06 on the note on September 30, 1991.

        After the expiration of the one-year redemption period, Constantine petitioned the court for
a tax deed conveying the property to him and Virginia. The Chancery Court held a hearing on the
matter on December 18, 1992. George alleges that he was not present at this hearing. At the
conclusion of the hearing, Chancellor McDonald specifically found that the redemption period had
expired without redemption being effected and directed the Clerk and Master to issue a tax deed and
a writ of possession to Constantine and Virginia. The Chancellor’s order reflects that his findings
were made upon consideration of “statements made by counsel for [Constantine and Virginia],
statements made by George Anagnost, statements made by the Clerk and Master, the file at large and
the records of this case.” (Emphasis added.)

       On January 18, 1993, George filed a handwritten motion claiming that he had not been
present at the December, 18, 1992, hearing and requesting the court to set aside its order. In his
motion, George asserts that he “had an agreement with Constantine Anagnost that Constantine
Anagnost would buy the property at the tax sale for or on behalf of [George] with a loan from his
bank and then [George] would pay that loan off and keep the property.”

        A hearing on this handwritten motion was held on February 4, 1994. After hearing the
parties’ arguments, the court found as follows:

                   Well, insofar as [the motion] alleges that [George] was not present for
                   the time the case was heard, he was present. The Court recalls him
                   being here. So, I don’t think that’s any ground, and we cannot grant
                   the motion for that reason. And we considered the claims at that
                   previous hearing and overruled them.

Chancellor McDonald subsequently denied the motion and again directed the Clerk and Master to
issue a tax deed and a writ of possession to Constantine and Virginia.

       On March 4, 1994, George filed a petition to rehear. The deed conveying the property to
Constantine and Virginia was executed and delivered on April 4, 1994, along with a writ of
possession, and George’s petition to rehear was denied on April 5, 1994. George continued to make
payments on Constantine’s note until June or July, 1994, when Constantine told the bank1 to
discontinue accepting payments from George.


       1
           By this time, Valley F idelity Bank and Trust Company had been sold to or merged into First Tennessee Bank.

                                                         -2-
        The instant litigation was commenced after Constantine died on August 25, 1998, and
Virginia was appointed his personal representative. On November 20, 1998, George filed a claim
against the estate alleging “[b]reach of contract regarding a redemption agreement.” On January 21,
1999, he filed another claim for breach of the redemption agreement on behalf of Athena, for whom
he had power of attorney.2

       The Estate moved for summary judgment, arguing, inter alia, that the claims had already
been adjudicated in the prior proceeding. In his response to the Estate’s motion, George asserted the
following as an additional fact constituting a material fact rendering summary judgment
inappropriate:

                  This agreement continued to be in effect even after Constantine and
                  Virginia Anagnost obtained the Deed to the property. Even after the
                  Deed of [sic] the property was transferred to Constantine and Virginia
                  Anagnost, Constantine Anagnost on behalf of himself and Virginia
                  Anagnost told George Anagnost that Virginia and he did not want the
                  property. After all, they were brothers, and that it was Virginia that
                  wanted to make sure that the Deed served as guarantee that George
                  would give them their money back. It was not until June of 1994
                  when Constantine Anagnost instructed First Tennessee Bank not to
                  accept George Anagnost’s payments and begun [sic] to treat the
                  property as his own and come in possession of it.

        The court, on January 19, 2000, found that George’s assertion that the agreement continued
to be in effect even after Constantine and Virginia obtained the deed to the property added nothing
to the assertions made by George in the prior litigation and was thus barred. The court then stated
as follows:

                  [T]aking the assertions of Mr. Anagnost and his counsel in the light
                  most favorable to them they have at best alleged a land sale contract
                  entered into between Constantine Anagnost and George Anagnost
                  subsequent to December, 1992. At oral argument, the Court observed
                  potential problems associated with such a claim but nevertheless will
                  grant claimant an additional thirty days within which to supplement
                  his response to the personal representative’s motion for summary
                  judgment.




         2
           George also filed two other claims on January 21, 1999: (1) a claim amending his prior claim clarifying that
the property was initially owned by both him and Athena and ultimately purchased by both Constantine and Virginia;
and (2) a claim seeking damages in the amount of $8,000,000 and asserting that such damages resulted from the breach
of the contra ct. This latter claim is not at issue on this a ppeal.

                                                         -3-
        In response to this order, George filed an unverified supplemental response to the Estate’s
summary judgment motion. Through this response, George presented (1) an unsigned promissory
note, the original of which he apparently claims to have executed and given to Constantine, and (2)
a copy of the $80,000 cashier’s check from Valley Fidelity Bank and Trust Company made payable
to Constantine and Virginia. While the relevancy of these documents to the alleged “land sale
contract” claim is not entirely clear, it is apparently George’s position that both the note and the
check, in some undisclosed way, relate to that land sale contract.

        Upon review of George’s supplemental response, the court granted summary judgment to the
Estate. George now appeals, raising the following two issues: (1) whether the trial court erred in
granting summary judgment to the Estate on the basis of res judicata; and (2) whether there was an
agreement between the parties subsequent to the entry of the order following the prior proceeding.

                                                           II.

                                                           A.

        Before determining whether summary judgment is appropriate in this case, we must first
establish the applicable principles. “The doctrine of res judicata bars a second suit between the same
parties or their privies on the same cause of action with respect to all issues which were or could
have been litigated in the former suit.” Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987). The
purpose of the doctrine is to “promote[] finality in litigation.” Lien v. Couch, 993 S.W.2d 53, 55
(Tenn. Ct. App. 1998) (citing Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn.1976)).

        An assertion of res judicata, if it is to prevail, must be supported by a showing that “(1) a
court of competent jurisdiction rendered the prior judgment, (2) the prior judgment was final and on
the merits, (3) the same parties or their privies3 were involved in both proceedings, and (4) both
proceedings involved the same cause of action.” Lien, 993 S.W.2d at 56; see also White v. White,
876 S.W.2d 837, 839 (Tenn. 1994).

        A prior judgment is res judicata as to all matters at issue in the prior proceeding as they
existed at the time the prior judgment was rendered. White, 876 S.W.2d at 840. It bars the litigation
not only of those matters actually determined in the prior action, but also those that reasonably could
have been litigated in the prior action. American Nat’l Bank and Trust v. Clark, 586 S.W.2d 825,
826 (Tenn. 1979). A prior judgment does not, however, operate to prohibit the later consideration
of rights that had not accrued at the time of the earlier proceeding or the re-examination of the same
question between the same parties when the facts have changed or new facts have occurred that have
altered the parties’ legal rights and relations. See White, 876 S.W.2d at 839-40.




         3
          The term “privies” includes “those who are so related by reason of the facts show ing an identity of inte rest.”
Cotton v. Underwood, 223 Tenn. 122, 442 S.W .2d 632, 634-35 (1969 ).

                                                           -4-
                                                   B.

        Having decided the relevant parameters of our inquiry, we must now determine whether
summary judgment for the Estate is appropriate under the record now before us. In deciding whether
a grant of summary judgment is appropriate, courts are to determine “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Tenn. R. Civ. P. 56.04. Courts “must take the strongest legitimate view of the
evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and
discard all countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).

        The party seeking summary judgment has the burden of demonstrating that there is no
genuine issue of material fact and that it is entitled to a judgment as a matter of law. Id. at 215.
Once the moving party satisfies its burden of showing that there is no genuine issue of material fact,
the burden then shifts to the nonmoving party to show that there is a genuine issue of material fact
requiring submission to the trier of fact. Id.

        George argues that the trial court erred in granting summary judgment to the Estate because,
so the argument goes, it is unclear from the record what claims George raised at the December 18,
1992, hearing and on what basis the court dismissed his subsequent handwritten motion. We
disagree, and we therefore hold that the trial court did not err in granting summary judgment to the
Estate.

         We are of the opinion that George’s assertion – that he and Constantine had an agreement
whereby Constantine would procure a loan for the purpose of purchasing the property and would
return the property to George when George paid off the loan – was litigated in the prior proceeding
and determined adverse to George as a final judgment on the merits. The chancellor’s order
directing the Clerk and Master to issue a tax deed to Constantine and Virginia states that the
chancellor’s decision was based in part on statements made by George. Even if we were to accept
as true that George did not pursue his “contract” argument at the initial hearing in December, 1992,
it is clear that he made such an argument by way of his handwritten motion, which he filed on
January 18, 1993. The chancellor held a hearing on that motion, and stated that he had “considered
the claims at [the] previous hearing and overruled them.” He again directed the Clerk and Master
to issue a tax deed to Constantine and Virginia, which was done on April 4, 1994. Apart from
George’s petition to rehear, which was denied, the issuance of the tax deed was not further
questioned in that proceeding and the decree of the court became final. George made no further
claim with respect to the purported agreement until after Constantine died, four years later. Thus,
we are of the opinion that the prior judgment of the chancellor directing the Clerk and Master to
issue a tax deed to Constantine and Virginia was a final judgment on the merits and that the
judgment is res judicata as to George’s allegation that Constantine purchased the property with a
view toward holding it for George’s ultimate benefit. The same argument was made in both
proceedings and involved the same parties, except that the instant case involves the Estate of
Constantine Anagnost, which is clearly in privity with Constantine himself.


                                                  -5-
                                                  C.

         We are further of the opinion that the trial court was correct in holding that the prior
judgment is also res judicata as to George’s argument concerning the “continuation” of the contract.
Additionally, with respect to whether there was a land sale contract which was agreed to subsequent
to the issuance of the tax deed to Constantine and Virginia, that issue was not pled, and we will not
consider it. George brought the instant action for “[b]reach of contract regarding a redemption
agreement between Constantine Anagnost and George Anagnost with respect to property previously
belonging to George Anagnost and subsequently purchased by Constantine Anagnost as a result of
a tax sale in 1991.” Summary judgment is appropriate as to this claim. George’s claim that he and
Constantine entered into a new contract subsequent to the prior proceeding was not raised until the
summary judgment process was already underway. Moreover, even if that issue were properly
before this court, we are of the opinion that George’s proffer of the unsigned promissory note and
a copy of the $80,000 cashier’s check that Constantine and Virginia procured to enable them to
purchase the property is insufficient to prove the existence of a land sale contract arising subsequent
to date of the final judgment of the prior action. For the foregoing reasons, we find that the trial
court did not err in granting summary judgment to the Estate.

                                                 III.

       The judgment of the trial court is affirmed. The case is remanded for collection of costs,
assessed below, all pursuant to applicable law. Costs on appeal are taxed to the appellant.




                                                        ___________________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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