                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  May 13, 2013 Session

    KENDALL FOSTER ET AL. v. FEDERAL NATIONAL MORTGAGE
                    ASSOCIATION ET AL.

                Appeal from the Chancery Court for Anderson County
                  No. 12CH3812     William E. Lantrip, Chancellor


                No. E2012-02346-COA-R3-CV-FILED-JULY 31, 2013




The plaintiffs brought this action alleging wrongful foreclosure after a judgment against them
became final in an earlier, separate unlawful detainer lawsuit filed by Federal National
Mortgage Association (“FNMA”). The trial court dismissed the action as barred by the
doctrine of res judicata. We affirm the judgment of the trial court because the plaintiffs
could and should have raised the issues pertaining to the alleged wrongful foreclosure in the
earlier detainer action.

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

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and T HOMAS R. F RIERSON, II, JJ., joined.

Carol A. Molloy, Lynnville, Tennessee, for the appellants, Kendall Foster and Amanda
Foster.

John R. Wingo, Lauren Paxton Roberts, and J. Matthew Kroplin, Nashville, Tennessee, for
the appellees, Federal National Mortgage Association and JP Morgan Chase Bank, National
Association.
                                                OPINION

                                                      I.

       Plaintiffs Kendall1 Foster and Amanda Foster bought a house in Lake City in 2004.
The Fosters borrowed $60,000 to finance the purchase. They signed a promissory note to
Washington Mutual Bank and executed a deed of trust. Washington Mutual later failed and
the Federal Deposit Insurance Corporation was appointed receiver. On September 25, 2008,
JP Morgan Chase Bank (“Chase”) entered into a purchase and assumption agreement
whereby Chase bought the assets and assumed the liabilities of Washington Mutual.

       In March 2010, Chase, alleging a default, foreclosed on the Fosters’ property. The
property was offered for sale at public auction on March 11, 2010. Chase bought the
property at the auction. According to the complaint, the Fosters were not notified of Chase’s
purchase of Washington Mutual’s assets, nor of the foreclosure action. The same day as the
auction, Chase assigned its interest in the property to FNMA.

       FNMA filed an unlawful detainer action against the Fosters in general sessions court
on May 27, 2010. The Fosters were served with a copy of the summons and civil warrant.
They hired counsel. Following a hearing on September 6, 2011, the general sessions court
granted FNMA a judgment for possession. The judgment became final after ten days, on
September 17, 2011, when the Fosters failed to file an appeal to circuit court.2

        After filing a pro se lawsuit that they later nonsuited, the Fosters filed this action in
the trial court against Chase, FNMA, and substitute trustee Shapiro & Kirsch, LLP,3 on
January 12, 2012. The Fosters alleged, among other things, wrongful foreclosure, fraud, civil
conspiracy, violation of the Tennessee Consumer Protection Act, unjust enrichment, and
slander of title. FNMA and Chase filed a motion to dismiss, arguing that the Fosters’ claims
were barred by the doctrine of res judicata because they should have been raised in the earlier
general sessions detainer lawsuit. The trial court agreed and dismissed the Fosters’ action.
They timely filed a notice of appeal.




       1
         Mr. Foster’s first name is sometimes spelled “Kendall” and sometimes “Kendell” in the record.
We will use the more familiar of the two spellings.
       2
           See Tenn. Code Ann. § 27-5-108 (Supp. 2012).
       3
           The Fosters later nonsuited Shapiro & Kirsch and it is not a party to this appeal.

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                                              II.

       The issue we address is whether the trial court correctly held that the Fosters’ various
claims were barred by the doctrine of res judicata.

                                             III.

        The trial court granted the defendants’ motion to dismiss under Tenn. R. Civ. P.
12.02(6) for failure to state a claim upon which relief could be granted. Rule 12.02 provides
as follows:

              If, on a motion asserting the defense numbered (6) to dismiss for
              failure to state a claim upon which relief can be granted, matters
              outside the pleading are presented to and not excluded by the
              court, the motion shall be treated as one for summary judgment
              and disposed of as provided in Rule 56, and all parties shall be
              given reasonable opportunity to present all material made
              pertinent to such a motion by Rule 56.

The Fosters attached, as exhibits to their response to the defendants’ motion to dismiss: (1)
a copy of the motion to remove FNMA’s detainer action to circuit court filed by the Fosters’
former attorney in general sessions court; (2) the former attorney’s affidavit filed in support
of the motion to remove; and (3) a copy of the substitute trustee’s deed, recorded on March
25, 2010, whereby Chase assigned its interest in the property to FNMA. Chase also attached
the substitute trustee’s deed to its supplemental memorandum in support of its motion to
dismiss in order to establish privity with FNMA, an element of its res judicata defense.
These documents were “matters outside the pleadings” as contemplated by Rule 12.03, see
Patton v. Estate of Upchurch, 242 S.W.3d 781, 786-87 (Tenn. Ct. App. 2007), and there is
no indication that they were excluded by the trial court. Consequently, the motion should
have been treated as one for summary judgment under Rule 56. Tenn. R. Civ. P. 12.03;
Gibson v. Trant, 58 S.W.3d 103, 107 (Tenn. 2001); Rast v. Terry, 532 S.W.2d 552, 553 n.1
(Tenn. 1976). “Accordingly, we will consider the trial court’s order as a ruling on a summary
judgment motion.” Smith v. Methodist Hosps. of Memphis, 995 S.W.2d 584, 587 (Tenn.
Ct. App. 1999).

       Our standard of review of a grant of summary judgment is as follows:

              A summary judgment is appropriate only when the moving party
              can demonstrate that there is no genuine issue of material fact
              and that it is entitled to judgment as a matter of law. Tenn. R.

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              Civ. P. 56.04; Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5
              (Tenn. 2008). When ruling on a summary judgment motion, the
              trial court must accept the nonmoving party’s evidence as true
              and resolve any doubts concerning the existence of a genuine
              issue of material fact in favor of the nonmoving party. Shipley
              v. Williams, 350 S.W.3d 527, 536 (Tenn. 2011) (quoting Martin
              v. Norfolk S. Ry., 271 S.W.3d 76, 84 (Tenn. 2008)). “A grant
              of summary judgment is appropriate only when the facts and the
              reasonable inferences from those facts would permit a
              reasonable person to reach only one conclusion.” Giggers v.
              Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009)
              (citing Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.
              2000)). “The granting or denying of a motion for summary
              judgment is a matter of law, and our standard of review is de
              novo with no presumption of correctness.” Kinsler v. Berkline,
              LLC, 320 S.W.3d 796, 799 (Tenn. 2010).

Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013). “A
trial court’s determination of the applicability of res judicata or collateral estoppel is a
question of law, which we review de novo with no presumption of correctness.” In re Taylor
B.W., 397 S.W.3d 105, 111 (Tenn. 2013).

                                             IV.

                                              A.

        “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.” Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012).
The purposes of the res judicata doctrine are “to promote finality in litigation, prevent
inconsistent or contradictory judgments, conserve legal resources, and protect litigants from
the cost and vexation of multiple lawsuits.” Creech v. Addington, 281 S.W.3d 363, 376
(Tenn. 2009). The doctrine is grounded in the public policy principle that “litigation should
be determined with reasonable expedition, and not protracted through inattention and lack
of diligence on the part of litigants or their counsel.” Id. (quoting Jordan v. Johns, 79
S.W.2d 798, 802 (Tenn. 1935)). As the Supreme Court has recently instructed,

              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

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              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.

Jackson, 387 S.W.3d at 491.

        The issue presented here has been recently addressed and decided by this court in the
case of Davis v. Williams, No. E2010-01139-COA-R3-CV, 2011 WL 335069 (Tenn. Ct.
App. E.S., filed Jan. 31, 2011). In Davis, a case involving a practically identical fact pattern,
we addressed “whether the judgment rendered by the general sessions court in the unlawful
detainer action can be given res judicata effect to preclude the present action when the fraud
alleged in this present action could only have been raised in the general sessions court as a
defense to possession and not as an original claim to set aside the foreclosure sale.” Id. at
*2 (italics in original). We stated the following in Davis:

              The Sellers maintain . . . 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 Buyers concede that they “could have asserted a
              defense of wrongful foreclosure; however, as in [CitiFinancial
              M ortgage Com pany, Inc. v. Beasley, No.
              W2006–00386–COA–R3–CV, 2007 WL 77289 (Tenn. Ct. App.
              W.S., filed Jan. 11, 2007)], [the Buyers] did not.” The Buyers
              maintain that even though the general sessions court could have
              denied the Sellers possession based on the defense of wrongful
              possession, its inability to set aside the foreclosure and vest title
              in them rather than the Sellers means that its judgment does not
              have preclusive effect.

              We disagree with the Buyers. 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).

Id. at *2 (italics in original). We held that “[t]here 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.” Id. at *3 (citing Beasley, 2007 WL 77289 at *6-7;

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Fed. Nat’l Mortgage Ass’n v. Robilio, No. W2007-01758-COA-R3-CV, 2008 WL 2502114
at *5 (Tenn. Ct. App. W.S., filed June 24, 2008)). We concluded that “[i]n 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.” Davis, 2011 WL 335069 at *3-4 (quoting Gerber, 219 S.W.3d at 918) (italics in
original; brackets in original omitted). Our rationale for this conclusion was as follows:

              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 *3 (quoting Gerber, 219 S.W.3d at 919). We recently reiterated and applied these
principles in CitiMortgage, Inc. v. Drake, No. E2012-00722-COA-R3-CV, 2013 WL
655914, at *9 (Tenn. Ct. App. E.S., filed Feb. 21, 2013), another case involving an
unsuccessful challenge to a foreclosure following an unlawful detainer action in general
sessions court.

       In the present case, the Fosters argue that because the general sessions court does not
have jurisdiction to entertain the question of title acquired through foreclosure, they should
not be barred from later challenging the foreclosure in a second, separate action. We
considered and rejected the same argument in Davis:

              The Buyers argue about the general sessions court’s jurisdiction,
              but, as we have illustrated above, it had subject matter
              jurisdiction of the detainer action. It was competent in the
              detainer action to consider title as a challenge to the Sellers’
              right to possession. The Buyers understandably argue that the
              cause of action in the present action is not the same as in the

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              detainer action. However, the Tennessee Supreme Court has
              recently redefined the term “cause of action” broad[ly] enough
              to connect the detainer action and the present action. There can
              be no doubt that the detainer action and the present action both
              arose out of the same transaction or series of connected
              transactions.

Davis, 2011 WL 335069, at *4 (citation omitted). Similarly, in this case, the unlawful
detainer action filed by FNMA and decided by the general sessions court – an action that
could have been appealed and heard de novo by the circuit court, but was not – and this
second action, including all claims asserted by the Fosters, each of which is based on or
pertaining to the alleged wrongful foreclosure, arose out of the same series of connected
transactions.

                                              B.

        The Fosters argue that the trial court erred in determining that FNMA and Chase were
in privity, and in holding that the res judicata defense was available to Chase as well as
FNMA. “Privity within the meaning of the doctrine of res judicata is privity as it exists in
relation to the subject matter of the litigation.” (Italics in original.) Harris v. St. Mary’s
Med. Ctr., Inc., 726 S.W.2d 902, 905 (Tenn. 1987). This court has observed that “[p]rivity
connotes an identity of interest, that is, a mutual or successive interest to the same rights.”
State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 180 (Tenn. Ct. App. 2000) (citations
omitted; emphasis added); see also Phillips v. Gen. Motors Corp., 669 S.W.2d 665, 669
(Tenn. Ct. App. 1984) (noting that “[p]rivity in the traditional sense mean[s] mutual or
successive relationship to the same rights of property”). The substitute trustee’s deed
establishes on its face that Chase “assigned its interests in the . . . property to [FNMA],”
thereby establishing a prima facie case of privity. This is sufficient to shift the burden of
production to the Fosters to establish a genuine issue of material fact regarding privity, see
Hannan, 270 S.W.3d at *5, which they did not do. Summary judgment was therefore
appropriate.

                                              V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellants, Kendall Foster and Amanda Foster. This case is remanded to the trial court for
collection of costs assessed below, pursuant to applicable law.




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__________________________________________
CHARLES D. SUSANO, JR., PRESIDING JUDGE




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