                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   February 25, 2015 Session

               PATRICIA ROSS V. ROBERT T. STOOKSBURY, JR.

                   Appeal from the Chancery Court for Blount County
                       No. 2012-057    David R. Duggan, Judge


                  No. E2014-01219-COA-R3-CV-FILED-JULY 31, 2015


Robert T. Stooksbury, Jr. (the creditor) obtained a judgment in federal district court
against, among others, Rebecca Ross Jordan, the daughter of Patricia Ross, the plaintiff
in the case now before us. The creditor then attempted, in federal court, to garnish the
funds in three bank accounts1 jointly held by Jordan and plaintiff. Plaintiff argued to the
federal court that the funds should not be subject to garnishment because, according to
her, they were solely owned by plaintiff. The federal district court, applying Tenn. Code
Ann. § 45-2-703(a) (2007), held that the “applicable statutory authority directs that the
moneys deposited into the account[s] owned by both Ms. Ross and Ms. Rebecca Ross
Jordan are subject to the claims of creditors of either depositor . . .” and, consequently,
the federal court allowed execution on and garnishment of the funds. The federal court
later ordered, without objection by plaintiff, disbursement of the funds to the creditor.
Plaintiff then brought this action under Tenn. Code Ann. § 45-2-703(a), which provides
in pertinent part that “any other depositor not indebted to the creditor may, by
commencing a separate action against the creditor, establish the rights that the depositor
may have in the funds.” The creditor in the case now before us filed a motion to dismiss
on the ground that plaintiff’s claim was barred by the doctrine of res judicata. The trial
court agreed and dismissed plaintiff’s action. We affirm the judgment of the trial court.

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

CHARLES D. SUSANO, JR., C.J., delivered the opinion of the court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.

Christopher J. Oldham, Knoxville, Tennessee, for the appellant, Patricia Ross.


      1
          These funds at issue are referred to hereinafter as “the funds.”
                                                  1
Wayne A. Ritchie II and James R. Stovall, Knoxville, Tennessee, for the appellee, Robert
T. Stooksbury, Jr.

                                          OPINION

                                                I.

        In response to the creditor’s request in the federal action that the court issue a
garnishment of the funds, plaintiff filed a “petition to exclude Patricia C. Ross’s
checking, savings and certificate of deposit accounts from scope of garnishment,” which
states as follows in its entirety:

               Patricia C. Ross, individually, and Defendant Rebecca Ross
               Jordan, petition the Court that the personal checking account,
               savings account, and certificate of deposit of Patricia C. Ross
               be excluded from the scope of the writ of garnishment issued
               in this action on April 2, 2012 for the reasons stated in the
               affidavit of said Patricia C. Ross attached hereto.

Plaintiff’s affidavit says, in pertinent part, as follows:

               1. . . . Because of my age and my lack of business experience,
               following my husband’s death, I gave to two of my daughters
               ‒ Rebecca R. Jordan, who was made a party defendant in this
               case, and Susan R. Ross – a durable power of attorney to act
               on my behalf with respect to business and healthcare matters.
               That durable power of attorney, a copy of which is attached
               (Attachment 1), remains in effect.

               2. For the purpose of implementing that durable power of
               attorney with respect to my personal checking account at
               Citizens Bank of Blount County, Tennessee (CBBC), my
               personal savings account at CBBC, and my certificate of
               deposit at CBBC, I had the names of those two daughters
               included on CBBC’s signature card records for those three
               accounts for the sole purpose of enabling them to act on my
               behalf regarding those accounts if I should be unable to do so.

               3. Neither of my two daughters named in the durable power
               of attorney put any money into any of those CBBC accounts,
               they have never taken any of the money out of those
                                                2
             accounts, and they have always taken the position, as I have,
             that those are my three accounts and they are to be used for
             my needs and purposes only. Copies of documents that I
             obtained from CBBC on April 9, 2012, regarding the history
             of those accounts, which are consistent with and are
             submitted in further support of this affidavit, are attached[.]

             4. CBBC informed me on April 9, 2012, that as of that date
             (April 9) the balance in the CBBC checking account is
             $2,169.46, the balance in the CBBC savings account is
             $25,154.53, and the balance in the certificate of deposit is
             $3,077.66.

             5. CBBC mailed to me on April 3, 2012, a copy of a Writ of
             Garnishment issued in this case on April 2, 2012. CBBC also
             has informed me that it has put a hold on all of the funds in
             my CBBC checking account, my savings account, and my
             certificate of deposit referred to above because my daughter
             Rebecca R. Jordan’s name is on the CBBC records regarding
             those accounts and the Writ of Garnishment served on it
             includes her name.

             6. As stated in paragraphs 1 through 3 above, there was never
             an intent by me or either of my daughters to whom I gave the
             durable power of attorney that either of them be the owners of
             any interest in any of those three account[s], and that their
             names were included on the CBBC records regarding those
             accounts for the sole purpose of enabling them to act on my
             behalf if I should [be] unable to do so for any reason.

       On May 16, 2012, the federal court entered an order denying plaintiff’s petition,
ruling in pertinent part as follows:

             Patricia C. Ross has filed a Petition to Exclude, in which she
             moves the Court to exclude her checking account, savings
             account, and certificate of deposit from the scope of the Writ
             of Garnishment served on Citizens Bank of Blount County in
             this case. The [creditor] seeks to garnish these accounts
             based upon the multi-million dollar Judgment in his favor
             entered in this case against the Defendants, including Ms.

                                           3
Rebecca Ross Jordan. Both Ms. Ross and Ms. Jordan are
listed as account owners on these accounts.

In support of her request for relief from garnishment, Ms.
Ross states that she added her two daughters . . . to these
accounts based upon her age and lack of business experience.
Ms. Ross states that neither of her daughters has put money
into or taken money out of these accounts.

The [creditor] responds that the Petition should be summarily
denied because it is insufficient on its face and cites no
authority to support its requested relief. The [creditor] argues
that the accounts at issue are properly subject to garnishment
pursuant to Tennessee Code Annotated § 45-2-703(a).

Tennessee Code Annotated § 45-2-703 provides that when a
deposit is made in the names of two or more persons “any
part of the deposit, or any interest or dividend on the deposit,
may be paid to either person.” Tenn. Code Ann. § 45-2-
703(a). The statute further instructs, “Any balance so created,
including, but not limited to, any balance held by spouses,
shall be subject to assignment by, or the claim of any creditor
of, either depositor, as if the depositor were the sole owner of
the funds. . . .” Id.

Ms. Ross has not cited the Court to any statutory authority
under which the Court may grant her request, nor has she
cited the Court to any case law supporting such relief. The
applicable statutory authority directs that the moneys
deposited into the account owned by both Ms. Ross and Ms.
Rebecca Ross Jordan are subject to the claims of creditors of
either depositor ‒ in this case, the claim of the [creditor] – “as
if the depositor were the sole owner of the funds.” The Court
finds that Tennessee Code Annotated § 45-2-703(a) would
allow execution and garnishment against these accounts,
because Ms. Jordan is listed as an account owner. The Court
cannot say that the equities of this situation would support
granting the relief requested by Ms. Ross.

                        *       *      *

                                4
              Accordingly, the Court finds that the Motion to Exclude is not
              well-taken, and it will be DENIED.

(Capitalization in original; footnote and citations to federal court record omitted.)

       On June 5, 2012, the federal court entered an order directing the bank to disburse
the funds to the creditor, stating in pertinent part:

              Before the Court is [the creditor’s] Motion For an Order
              Directing Citizens Bank of Blount County to Disburse
              Certain Garnished Funds To [the creditor]. . . . [O]n April 3,
              2012, a Writ of Garnishment was issued . . . and served on
              Citizens Bank of Blount County by the U.S. Marshal.
              Citizens Bank of Blount County answered the garnishment
              initially on April 13, 2012, and stated that it held funds of the
              judgment Defendants as follows: . . . as to Defendant Rebecca
              Ross Jordan, the total sum of $31,783.04 . . .

              Defendant Patricia Ross filed a Petition requesting that
              certain funds which were the subject of the Writ of
              Garnishment served on Citizens Bank of Blount County
              should be excluded from the garnishment because of an
              individual interest she claimed in those funds; Robert
              Stooksbury filed a response in opposition to this Petition; and
              Ms. Ross’ motion was denied in the Memorandum and Order
              entered May 16, 2012, by Magistrate Judge Guyton.

                                       *      *      *

              Having reviewed and considered [the creditor’s] related
              motions referenced above, having considered [plaintiff’s]
              failure to file any response in opposition to these motions, and
              based on the record as a whole, the Court finds [the
              creditor’s] referenced motions to be well-taken. Accordingly,
              it is hereby ORDERED that Citizens Bank of Blount County
              shall immediately disburse to [creditor]., . . . as to Defendant
              Rebecca Ross Jordan, the total sum of $31,783.04[.]

(Capitalization in original; citations to federal record omitted.) Neither plaintiff nor her
daughter, Ms. Jordan, appealed these federal court orders, and it is undisputed that they
have become final.
                                              5
      On May 18, 2012, plaintiff filed the present action in the trial court.   Her
complaint alleges:

            This lawsuit is being brought pursuant to T.C.A. §45-2-703(a)
            in order to establish rights that the [p]laintiff, as depositor,
            has in the funds described herein.

            Patricia Ross is the Personal Representative of the Estate of
            Dale Ross . . . . In that capacity, she was sued by the
            [creditor], . . . alleging inter alia that her deceased husband,
            Dale Ross, had committed certain actions against the
            [creditor] for which his estate may be liable.

                                    *      *      *

            Patricia Ross was named only in her capacity as the Personal
            Representative of the Estate of Dale Ross, not in her
            individual capacity.

            As a result of that lawsuit, a judgment was obtained against
            multiple defendants, including Patricia Ross in her capacity as
            Personal Representative of the Estate of Dale Ross, and
            Rebecca Rose Ross Jordan, the daughter of Patricia Ross.

            As Patricia Ross was not named individually in the lawsuit,
            no judgment entered against her in her individual capacity,
            and thus, none of her individual assets are subject to
            garnishment or attachment by the Defendant.

                                    *      *      *

            At some point after each of these accounts was established, in
            order to assist Patricia Ross with her finances, Rebecca Rose
            Ross Jordan, and her sister, Susan R. Ross were added as
            additional owners of the accounts, though there is dispute as
            to whether they were to be added solely as signatories to the
            accounts as opposed to owners.

            At no time since either Susan Ross or Rebecca Jordan were
            added to the accounts have either of them contributed to these
                                           6
              accounts, nor have they withdrawn funds for their personal
              benefit. These accounts, despite having additional named
              owners are the sole and exclusive property of Patricia Ross
              and consist of funds belonging solely and exclusively of
              funds belonging to Patricia Ross.

                                       *      *         *

              As a result of the judgment he obtained in federal court, the
              [creditor] has instituted proceedings to attach the funds
              belonging solely and exclusively to the [p]laintiff on the basis
              that Rebecca Ross Jordan’s name appears on this account.

              Plaintiff seeks relief from this Court under T.C.A. §45-2-
              703(a) and would have this Court enter an Order declaring
              that the funds in the above described accounts are the sole and
              exclusive property of the [p]laintiff and, thus, are not subject
              to garnishment or attachment by the [creditor].

(Italics in original; numbering in original omitted.)

        The creditor filed a notice of removal of this action to federal district court. In
federal court, plaintiff filed a motion to remand to the trial court, which the federal court
granted, finding it had no original subject matter jurisdiction. Ross v. Stooksbury, No.
3:12-CV-290, 2012 WL 4758328 (E.D. Tenn. Oct. 5, 2012). The creditor then filed in
chancery court a motion to dismiss, arguing that this “suit is nothing more than an
attempt by plaintiff to re-litigate in a different forum an issue that has been raised and
resolved in Mr. Stooksbury’s favor by the United States District Court.” The creditor
asserted that plaintiff’s petitions in federal court “assert the same positions being asserted
in this Court,” and consequently her action should be dismissed “based on the doctrines
of res judicata and stare decisis.” (Italics in original.) After a hearing, the trial court
granted the motion to dismiss. Plaintiff timely filed a notice of appeal.

                                             II.

       Plaintiff raises the following issue, as quoted from her brief:

              Did the trial court commit legal error in granting the
              [creditor’s] Motion to Dismiss on the grounds of collateral
              estoppel and/or res judicata, when the elements of neither had
              been met?
                                              7
(Italics in original.) There are no disputed issues of material fact as pertinent to the issue
before us on appeal. “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.” Jackson v. Smith, 387 S.W.3d 486,
491 (Tenn. 2012).

                                             III.

       The Supreme Court has recently reiterated the elements of a res judicata defense,
stating as follows:

              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 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).

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

        The governing statute, Tenn. Code Ann. § 45-2-703(a), provides in pertinent part
as follows:
                                              8
            When a deposit has been made or is hereafter made, in any
            bank, in the names of two (2) or more persons, payable to
            either, or survivor, the deposit . . . may be paid to either
            person . . . . Any balance so created . . . shall be subject to . . .
            the claim of any creditor of, either depositor, as if the
            depositor were the sole owner of the funds; provided, that if
            the creditor realizes its claim by any means other than
            enforcement of an assignment, pledge, or the grant of a
            security interest made by any one (1) of the depositors, any
            other depositor not indebted to the creditor may, by
            commencing a separate action against the creditor, establish
            the rights that the depositor may have in the funds.

In Avenell v. Gibson, No. E2004-01620-COA-R3-CV, 2005 WL 458733 (Tenn. Ct. App.
E.S., Feb. 28, 2005), we construed this statute, observing that,

            a creditor had, and still has, the right to levy upon the funds in
            jointly-held bank accounts; [but that] does not mean that the
            creditor ultimately will be entitled to keep the funds levied
            upon. The creditor’s right to keep the funds will depend upon
            the proof adduced at the hearing in the subsequently-filed
            separate action by the non-debtor depositor.

                                      *      *       *

            In so many words, the statute simply instructs banks to (1)
            pay the funds into court, (2) get out of the way, and (3) let the
            non-debtor depositor “fight it out” with the creditor by
            showing “such rights as that depositor may have in the
            funds.” In the case of a non-debtor spouse depositor with
            respect to a joint account held by the parties as tenants by the
            entirety, those “rights” translate into an entitlement to the
            return of the levied-upon funds.

            In the case of unmarried persons holding a joint account, the
            non-debtor account holder would be required to prove to the
            court that all, or part of, the levied-upon funds were directly
            attributable to him or her to the exclusion of the debtor
            depositor, in order for that portion of the funds to be returned
            to the non-debtor depositor.

                                             9
Id. at *5, 6-7 (emphasis in original). In Harber v. Nolan, No. E2000-00356-COA-R3-
CV, 2000 WL 1100229 at *4 (Tenn. Ct. App. E.S., Aug. 3, 2000), we stated:

              T.C.A. § 45-2-703(a) specifically provides for the filing of “a
              separate action” by the non-debtor [depositor] to determine
              her rights in the funds. If the Legislature had intended to
              require the non-debtor [depositor] to proceed in the action
              from which the garnishment arose, the Legislature would
              have said so rather than specifically allowing the non-debtor
              [depositor] to file “a separate action.” The language of the
              statute itself indicates the legislative intent to allow that
              “separate action” to be filed not in the lawsuit from which the
              garnishment was issued, but in the county where the bank
              account is maintained.

       We emphasize the word “allow” in the above quote to illustrate our initial
observation that nothing in the statute requires a non-debtor depositor to file a separate
action. The language of the statute uses permissive, not mandatory, language, in
providing that “any other depositor not indebted to the creditor may, by commencing a
separate action against the creditor, establish the rights that the depositor may have in the
funds.” (Emphasis added.) By the same token, a non-debtor depositor may also elect to
have the court in which the writ of garnishment issued also decide his or her rights in the
funds at issue.

        In this case, plaintiff argues that two elements of res judicata were not established,
asserting that (1) the same parties were not involved in both suits, and (2) the same claim
or cause of action was not asserted in both suits. Plaintiff correctly points out that she
initially was before the federal court only in her capacity as personal representative of the
estate of Dale M. Ross. In her petition to exclude the funds from the scope of the
garnishment, however, plaintiff expressly states that she is appearing “individually.” By
this, she placed herself before the court in her individual capacity, and asked the court to
determine her individual rights. We are of the opinion that plaintiff’s election to appear
individually in the federal court action satisfies the element “that the same parties or their
privies were involved in both suits.” Jackson, 387 S.W.3d at 491.

        Secondly, plaintiff argues that the same claim or cause of action was not asserted
in both suits. She argues that in federal court, she only requested that the court exclude
the funds from the scope of garnishment, and did not ask the court to “establish the rights
that [she] may have in the funds.” Tenn. Code Ann. § 45-2-703(a). Plaintiff asserts that
the federal court did not reach or rule on the question of the ownership of the funds. We
hold that by arguing to the federal court that she was actually the sole owner of the funds,
                                             10
and that neither of her daughters put money in or took money out of the accounts,
plaintiff clearly placed at issue her rights in the funds. Furthermore, she filed substantial
proof of the ownership of the funds with the federal court, including her affidavit and
bank records of CBBC, in support of this argument. At the hearing on the creditor’s
motion to dismiss, the trial court disagreed with plaintiff’s argument, finding the issue
had been raised and decided in federal court, and saying in pertinent part as follows:

              MR. OLDHAM (plaintiff’s counsel): We are merely
              guessing, because all Judge Guyton ever really comes back
              and says is that the equity of the situation dictate[s] that the
              garnishment is proper, and solely because ‒ his sole reasoning
              is that Ms. Jordan’s name is on the account. He never gets to
              ownership. So, therefore, this issue has never been before
              any Court, except for this one ‒

              THE COURT: It is not true that he did not get to ownership.
              He says that the garnishment, the execution and garnishment
              were allowed because she was an account owner.

              MR. OLDHAM: . . . well, an account holder. The statute that
              we are dealing with here, the 45-2-703, if they are listed as an
              account owner, that is how you have to get to garnishment, if
              there is joint account holders.

              THE COURT: I am just making the point that you said he
              didn’t get to the issue of ownership. He clearly finds that she
              was an account owner.

              MR. OLDHAM: Sure. Oh, well, I guess the bank uses
              account holder. This uses, the statute uses account holder.
              He says account owner. But . . . the only thing that was
              before him was a signature card, in terms of the signature
              card presented by [plaintiff] saying here is the account, here is
              the funds.

              THE COURT: Well, you keep saying the only thing that was
              before him. And that is why we are struggling here a little
              bit, because, clearly, in her petition, she argued the exact
              same things. You are wanting to distinguish, you are saying
              that his ruling only had to do with the garnishment. The
              garnishment could have been proper, and yet she still could
                                             11
              have the right to come back pursuant to the statute and say,
              yes, but I one hundred percent completely funded all of that,
              it was my money. But she raised those issues in her petition.
              . . . She clearly raised these issues, she clearly in her petition
              said this is my money, it belongs to me.

              MR. OLDHAM: Sure.

              THE COURT: So it was before him.

              MR. OLDHAM: To a degree.

                                       *       *      *

              THE COURT: She raised these issues, the same issues that
              she is raising now, in a petition that she chose to file
              individually in an action where she was not individually a
              party.

(Emphasis added.)

        The evidence plaintiff presented to the federal court was only relevant to the issue
of the true ownership of the funds, and we believe she presented it in an attempt “to prove
to the court that all, or part of, the levied-upon funds were directly attributable to . . . her
to the exclusion of the debtor depositor.” Avenell, 2005 WL 458733 at *7. In this action,
plaintiff relies on the same, identically-worded affidavit that she filed in federal court to
demonstrate that the funds were hers. The claim raised here is the same one presented to
and decided by the federal court. We note that the federal court, after hearing and
considering the proof regarding ownership of the funds, held that “[t]he Court cannot say
that the equities of this situation would support granting the relief requested by Ms.
Ross.” Plaintiff allowed two federal court orders to become final by not appealing them
‒ the order ruling the funds subject to garnishment, and the order mandating that the
funds be distributed to the creditor.

        Plaintiff, relying on the statutory language providing that “any other depositor not
indebted to the creditor may, by commencing a separate action against the creditor,
establish the rights that the depositor may have in the funds,” argues that the application
of the res judicata doctrine would render this language “inoperative, superfluous, void, or
insignificant.” (Emphasis added.) If the plaintiff had not elected to appear before the
federal court in her individual capacity and raise the issue of the true ownership of the
funds, she would have been entitled under the statute to file a separate action in chancery
                                              12
court. But Tenn. Code Ann. § 45-2-703 does not abrogate the res judicata doctrine in
actions it governs. In the words of the most often-used res judicata metaphor, the statute
does not entitle her to a second bite at the same apple, in a second court of her choosing,
once she has asked the federal court to establish the rights in the funds, lost in federal
court, and allowed the federal judgment to become final by not appealing it. If she
thought the federal court committed reversible error, she should have appealed its
decision.

                                            IV.

       The trial court’s judgment that this action is barred by the res judicata doctrine is
affirmed. Costs on appeal are assessed to the appellant, Patricia Ross. The case is
remanded for collection of costs assessed in the trial court.



                                          ______________________________________
                                          CHARLES D. SUSANO, JR., CHIEF JUDGE




                                            13
