                                                                                         06/28/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  June 5, 2019 Session

          JEFFREY HEATLEY ET AL. v. DAVID G. GAITHER ET AL.

                  Appeal from the Circuit Court for Putnam County
                     No. 2018-CV-60 Amy V. Hollars, Judge
                      ___________________________________

                           No. M2018-01792-COA-R3-CV
                       ___________________________________


This is an appeal from the dismissal of the plaintiffs’ second lawsuit against adjacent
property owners arising from the discovery of a leaking septic tank on the plaintiffs’
property. In their first lawsuit, the plaintiffs sued their neighbors in chancery court for
negligence and trespass after discovering that the leaking septic tank was connected to a
mental health facility on their neighbors’ property. While the first action was still
pending, the plaintiffs filed this action against their neighbors for continuing nuisance
and trespass arising from the leaking septic tank. The defendants moved for summary
judgment based on the doctrine of prior suit pending. The plaintiffs opposed the motion
and requested additional time to conduct discovery. After the trial court granted
summary judgment to the defendants, the plaintiffs appealed. We conclude that the
requested discovery was unnecessary to respond to the defendants’ motion and that all
the elements of the defense of prior suit pending were present. So we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

G. Kline Preston IV, Nashville, Tennessee, for the appellants, Jeffrey Heatley and Estate
of Kathryn Heatley.

Douglas L. Dunn, Knoxville, Tennessee, for the appellees, Generations-Gaither’s Inc.,
David G. Gaither, and Patricia W. Gaither.
                                    MEMORANDUM OPINION1

                                                       I.

       Jeffrey Heatley and his wife,2 own property next to David and Patricia Gaither.
These adjoining properties were previously owned by Melvin Malone and his wife, Anna
Rose Malone, as one parcel. In the late 1960s, the Malones installed an underground
sewage disposal system for their home that included two septic tanks. Almost thirty
years later, the Malones subdivided their property. As a result, the Malone house was
located on what would become the Gaither property and part of the house’s septic system
was located underneath what would become the Heatley property.

        In October 2013, the Heatleys notified David Gaither that they had uncovered a
clay pipe on their property that led to the Gaither property. On or about October 30,
2013, the parties discovered that the clay pipe connected Skylar House, a mental health
facility on the Gaither property, to a septic tank on the Heatley property. Mr. Gaither had
the newly discovered tank emptied on November 4, and he applied for the necessary
permit to permanently disconnect the tank. Shortly thereafter, he arranged to close the
facilities at Skylar House that were connected to the septic line. The septic line was
permanently severed and sealed under the supervision of the Tennessee Department of
Environment and Conservation on or about February 21, 2014.

        On January 23, 2014, before the tank was permanently disconnected, the Heatleys
filed their first action against David and Patricia Gaither and two related entities,
Gaither’s Inc. and Generations-Gaither’s Inc., (collectively, the “Gaithers”) in the
Chancery Court for Putnam County, Tennessee. The complaint alleged that sewage or
wastewater was continuously leaking from the newly discovered septic tank. Among
other things, the Heatleys asserted claims against the Gaithers for negligence and
trespass. According to the Heatleys, even after the septic line was permanently
disconnected, the tank continued to leak, apparently from contents that had accumulated
after the tank was emptied but before the line was permanently severed.

       The Gaithers moved for summary judgment on all claims. The Heatleys opposed
the dismissal of their negligence and trespass claims. And they moved to amend their
complaint to “reflect the status and facts of the case which have persisted since October
30, 2013” and add claims for gross negligence, nuisance, and continuing trespass. The
chancery court granted summary judgment to the Gaithers on all claims and denied the

       1
           Under the rules of this Court, as a memorandum opinion, this opinion may not be published,
“cited[,] or relied on for any reason in any unrelated case.” Tenn. Ct. App. R. 10.
       2
           Mrs. Heatley died during the previous litigation and her estate was substituted as party plaintiff.
                                                       2
Heatleys’ motion to amend the complaint. The Heatleys appealed to this Court on March
7, 2018.

        On April 10, 2018, while their appeal in the first case was pending, the Heatleys
filed a new complaint against David and Patricia Gaither and Generations-Gaither’s, Inc.
in Putnam County Circuit Court based on the leaking septic tank. This time, the Heatleys
asserted claims for nuisance and trespass but specifically limited the time frame of their
claims to “all occurrences and all times beginning on January 24, 2014[, the day after the
filing of the first action,] to the present.” They requested both monetary damages and an
order requiring the Gaithers to remove the septic tank and clean the Heatley property.

      The Gaithers moved for summary judgment based on the doctrine of prior suit
pending. The Heatleys opposed the motion, arguing that the subject matter of the two
cases differed because the second action involved new occurrences after the first
complaint was filed. The Heatleys also asked the court to allow time for additional
discovery.

       The circuit court granted summary judgment to the Gaithers and dismissed the
second case on September 5, 2018. After the circuit court’s ruling, this Court issued its
opinion in the appeal of the first case. See Heatley v. Gaither, No. M2018-00461-COA-
R3-CV, 2018 WL 6706287 (Tenn. Ct. App. Dec. 19, 2018). We affirmed the chancery
court’s grant of summary judgment on trespass but reversed the grant of summary
judgment on negligence because the Gaithers failed to affirmatively negate an essential
element of the negligence claim. Based on the partial reversal of the summary judgment
decision, we also vacated the chancery court’s denial of the motion to amend the
complaint and remanded the first case to the chancery court for further proceedings.

                                             II.

                                             A.

       When two courts in this state have concurrent jurisdiction, the first one to obtain
both personal and subject matter jurisdiction retains exclusive jurisdiction to settle all
issues between the parties, and the second case must be dismissed. Metro. Dev. & Hous.
Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 878-79 (Tenn. Ct. App. 1982).
Prior suit pending is a rule of jurisdictional priority. See id. (explaining that the first
court’s exclusive jurisdiction continues until all matters between the parties “are disposed
of, and no court of coordinate authority is at liberty to interfere with its action”). If the
doctrine applies, the second court lacks subject matter jurisdiction. See Haggard v.
Aguilar, No. 2009-02452-COA-R3-CV, 2010 WL 4962884, at *2 (Tenn. Ct. App. Dec. 7,
2010). The applicability of the doctrine of prior suit pending is a question of law, which
we review de novo with no presumption of correctness. Fid. & Guar. Life Ins. Co. v.

                                             3
Corley, No. W2002-02633-COA-R9-CV, 2003 WL 23099685, at *3 (Tenn. Ct. App.
Dec. 31, 2003).

        The defense of prior suit pending has four elements: (1) “the lawsuits must involve
identical subject matter;” (2) “the lawsuits must be between the same parties;” (3) the
first court must have subject matter jurisdiction; and (4) the first court must have personal
jurisdiction over the parties. West v. Vought Aircraft Indus., Inc., 256 S.W.3d 618, 623
(Tenn. 2008) (footnote omitted). Here, three elements are undisputed. The Heatleys only
challenge the identity of the subject matter. To determine whether the subject matter is
the same, we apply res judicata principles. Fid. & Guar. Life Ins. Co., 2003 WL
23099685 at *4. Two lawsuits involve the same cause of action for res judicata purposes
“where they arise out of the same transaction or a series of connected transactions.”
Creech v. Addington, 281 S.W.3d 363, 381 (Tenn. 2009).

        We conclude that the underlying facts in both actions are identical. The Heatleys
complain that the septic tank has been leaking since October 31, 2013, and the Gaithers
have failed to alleviate the problem. Whether couched in terms of negligence, nuisance,
or trespass, all of their claims in both actions arise from the “same transaction or series of
connected transactions”—the leaking septic tank. See id. The Heatleys have not alleged
any new wrongful conduct in their second action. Rather, they simply assert that the
damage caused by the leaking septic tank continues unabated. Cf. id. (noting that res
judicata may be inapplicable “where in the interval [between the two actions] the facts
have changed or new facts have occurred which may alter the legal rights or relations of
the litigants.” (quoting Banks v. Banks, 77 S.W.2d 74, 76 (Tenn. Ct. App. 1934)). The
Heatleys concede that the only difference between the two lawsuits is the time frame.
But this temporal difference does not change the subject matter of the lawsuit. See
Sledge v. Tenn. Dep’t of Corr., No. M2017-01510-COA-R3-CV, 2018 WL 2230673, at
*4 (Tenn. Ct. App. May 16, 2018), perm. app. denied, (Tenn. Aug. 10, 2018) (affirming
dismissal of second action challenging Department of Correction’s application of
sentence credits even though second action concerned different time period).

       The Heatleys’ argument that they are entitled to bring successive actions because
the Gaithers created a continuing or temporary nuisance does not change our conclusion.3
Certainly, if the Gaithers are found liable for creating a temporary nuisance, the Heatleys
may file successive actions to recover their damages until the nuisance is abated. See
Pate v. City of Martin, 614 S.W.2d 46, 48 (Tenn. 1981); see also City of Nashville v.
Comer, 12 S.W. 1027, 1028-29 (Tenn. 1890) (explaining that the plaintiff may bring
successive actions to recover additional damages accrued subsequent to the last
recovery). But the Gaithers’ liability for nuisance must be established before the court

        3
           The Heatleys also asserted a claim for continuing trespass. This Court ruled in the appeal of the
first case that the Heatleys cannot establish a claim for trespass under these facts. See Heatley, 2018 WL
6706287, at *5.
                                                     4
turns to the question of the appropriate relief. See City of Nashville, 12 S.W. at 1029
(noting that the recovery in the first action establishes the plaintiff’s right to bring the
subsequent actions); see also Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 364-65 (Tenn.
2002) (differentiating between liability for nuisance and the available remedies). In the
first action, we vacated the court’s denial of the Heatleys’ motion to amend their
complaint to add a nuisance claim and remanded the case with instructions to reconsider
the motion. Thus, the Heatleys have the opportunity to litigate their nuisance theory in
the first action.4 Only after liability has been established may the Heatleys bring another
action for additional accrued damages, if necessary.

                                                   B.

       As a second issue on appeal, the Heatleys complain that the court should have
allowed time for discovery before ruling on the summary judgment motion. See Tenn. R.
Civ. P. 56.07. We review the trial court’s decision for an abuse of discretion. Regions
Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 401 (Tenn. Ct. App. 2009). A trial
court’s denial of a party’s request for additional time for discovery “must be viewed in
the context of the issues being tried and the posture of the case at the time the request for
discovery is made.” Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 537-38
(Tenn. Ct. App. 2012) (quoting Regions Fin. Corp., 310 S.W.3d at 401).

        As discussed above, the sole issue to be determined on summary judgment was
whether the action pending in chancery court involved the same subject matter as the
present action. The Heatleys requested time “to excavate and further test the soil and the
septic tank” and to retain an expert witness. We fail to see how further information about
the current status of the soil on the Heatley property would have assisted the Heatleys in
responding to the Gaithers’ motion. The trial court did not abuse its discretion in denying
time for additional discovery. See Regions Fin. Corp., 310 S.W.3d at 401.

                                                  III.

        The trial court properly dismissed this action based on the doctrine of prior suit
pending. Both actions arose from the same transaction or series of transactions. And the
trial court did not abuse its discretion in denying the Heatleys’ request for additional time
for discovery. The requested discovery would not have helped the Heatleys to respond to
the motion for summary judgment. So we affirm the trial court’s decision.



        4
          After oral argument in this appeal, the Heatleys moved to supplement the record to include the
proceedings on remand of the first case. See Tenn. R. App. P. 14(a). The Gaithers opposed the motion.
Prior suit pending applies to both issues raised and those that could have been raised in the first suit.
Tallent v. Sherrell, 184 S.W.2d 561, 563 (Tenn. Ct. App. 1944). Thus, the trial court’s decision on the
Heatleys’ motion to amend the complaint is unnecessary for our decision on this appeal.
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    _________________________________
    W. NEAL MCBRAYER, JUDGE




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