ALEXANDER ZANETIS, and wife, THELMA )
ZANETIS,                            )
                                    )
     Plaintiffs/Appellants,         )
                                    )     Davidson Circuit
                                    )     No. 96C-135
VS.                                 )
                                    )     Appeal No.
                                    )     01A01-9705-CV-00203
DAVID MCMACKIN and BOATMEN’S        )
NATIONAL MORTGAGE COMPANY, INC., )

     Defendants/Appellees.
                                    )
                                    )
                                                       FILED
                                                      November 19, 1997
              IN THE COURT OF APPEALS OF TENNESSEE
                   MIDDLE SECTION AT NASHVILLE     Cecil W. Crowson
                                                  Appellate Court Clerk
            APPEAL FROM THE DAVIDSON CIRCUIT COURT
                    AT NASHVILLE, TENNESSEE

            HONORABLE HAMILTON V. GAYDEN, JR., JUDGE


CHARLES GALBREATH, #2779
211 Union Street, Suite 901
Nashville, Tennessee 37201
ATTORNEY FOR PLAINTIFFS/APPELLANTS


WINSTON S. EVANS, #6281
EVANS, JONES & REYNOLDS
1810 First Union Tower
150 Fourth Avenue, North
Nashville, Tennessee 37219-2424
ATTORNEY FOR DEFENDANTS/APPELLEES


                   AFFIRMED AND REMANDED


                          HENRY F. TODD
                          PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE

CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
ALEXANDER ZANETIS, and wife, THELMA )
ZANETIS,                            )
                                    )
     Plaintiffs/Appellants,         )
                                    )                          Davidson Circuit
                                    )                          No. 96C-135
VS.                                 )
                                    )                          Appeal No.
                                    )                          01A01-9705-CV-00203
DAVID MCMACKIN and BOATMEN’S        )
NATIONAL MORTGAGE COMPANY, INC., )
                                    )
     Defendants/Appellees.          )




                                        OPINION


       The captioned plaintiffs have appealed from a summary judgment dismissing their suit

against the captioned defendants.



       Plaintiffs single issue for review by this Court is:

                       Was the Court in error in granting defendants’ motion
               for dismissal, there being disputed issues of material fact to be
               resolved by a jury?


       The record reflects the following undisputed facts:



       In 1986, plaintiffs purchased a home, financed by National Mortgage Company. The loan

agreement provided for a portion of each installment paid to be credited to an escrow account

to pay taxes and insurance. Plaintiffs purchased insurance directly and paid for it without

charging it to the escrow account. As a result the escrow account developed a surplus. Plaintiffs

demanded that the surplus be credited upon the principal of the secured debt, but the parties

could not agree upon the amount to be credited. Plaintiffs’ legal counsel demanded a correct

accounting. The mortgage company threatened acceleration of the loan and foreclosure and

engaged the attorney, David McMackin, to deal with plaintiffs’ claims.




                                               -2-
       On March 24, 1995, plaintiffs sued the mortgage company only, for damages, demanding

a jury. David McMackin was not named as a defendant. While the action was pending,

plaintiffs found a buyer for their home and their attorney asked David McMackin, counsel for

the mortgage company, for a “pay-off figure” (the amount necessary to satisfy the mortgage).

David McMackin advised plaintiffs’ counsel that he could not provide such a figure while the

litigation was pending because there were charges due for fee of counsel as provided by the

mortgage. Counsel for plaintiffs notified Mr. McMackin that the suit would be dismissed. Mr.

McMackin never talked to plaintiffs about the dismissal.



       On May 30, 1995, the Trial Court entered the following order:

                      It appearing to the Court, as evidenced by the
              signatures of counsel below, that the parties have settled their
              dispute herein, with Plaintiffs to bear the court costs and the
              action to be dismissed with prejudice.

                     IT IS HEREBY ORDERED, ADJUDGED AND
              DECREED that this action against Defendant Boatmen’s
              National Mortgage Company, Inc. is hereby dismissed with
              prejudice, with all court costs to the Plaintiffs.

                                                    (Signature)
                                             Hamilton V. Gayden, Judge
              APPROVED FOR ENTRY:

                  (Signature)
              James L. Harris, #14173
              3221 Nolensville Road, Suite 102
              Nashville, TN 37211
              (6150 832-0138                 Understood and Agreed:

              Attorney for Plaintiffs                           (Signature)

                                                     Alex W. Zanetis

                                                      (Signature)
                                                     Thelma Zanetis



              MCMACKIN, GARFINKLE, MCLEMORE & WALKER

              By:    (Signature)
                  David W. McMackin, #3451
              First Union Tower, 16th Floor
              150 Fourth Avenue North
              Nashville, TN 37219-2758

                                    -3-
               (615) 255-4545

               WYATT, TARRANT & COMBS

               By:   (Signature)
                  Janet P. Sparkman, #9607
               1500 Nashville City Center
               511 Union Street
               Nashville, TN 37219
               (615) 244-0020

               Attorneys for Defendant



       On December 1, 1995, plaintiffs filed a Rule 62.02 motion to set aside the dismissal of

their suit for fraud and misconduct of adversary counsel.



       On January 2, 1996, the Trial Court entered an order overruling the Rule 60.02 motion,

reciting the evidence upon which the decision was based.



       On May 21, 1996, plaintiffs filed a second Rule 60.02 motion.



       On October 8, 1996, the Trial Court overruled the second Rule 60.02 motion.



       On January 9, 1996, plaintiffs filed a new suit under a new number against David

McMackin only, alleging substantially the same facts alleged in the previous suit against

Boatmen’s Mortgage Company which was not named as a defendant in the new complaint.



       On March 5, 1996, plaintiffs moved for leave to add Boatmen’s Mortgage Company as

a defendant.



       On October 6, 1996, the Trial Court overruled the motion to add Boatmen’s Mortgage

Company.




                                             -4-
       On January 29, 1997, the Trial Court entered an order overruling plaintiffs’ motion to

compel discovery, partially granting “the defendants’ motion to dismiss,” otherwise overruling

“defendants’ motion to dismiss,” reserving the question of the reasonableness of attorney’s fee,

and granting a T.R.A.P. Rule 9 appeal.



       There is no record that plaintiffs pursued the Rule 9 appeal. Plaintiffs filed the above

quoted notice of appeal on March 11, 1997.



       Plaintiffs filed a narrative statement of the evidence, but, on April 23, 1997, the Trial

Judge sustained a “motion of the defendants” to strike the statement of the evidence. The record

contains no evidence that the plaintiffs requested that the Trial Judge perform his “high judicial

function” of “settling the bill of exceptions,” T.R.A.P. Rule 24(e) and (h), Anderson v. Sharp,

195 Tenn. 274, 259 S.W.2d 521 (1953); Rose v. Third National Bank, 27 Tenn. App. 553 (1945).



       The order of January 2, 1996, overruling the first Rule 60.02 motion states:

                        Because the plaintiffs desired to put on testimony in
               support of their motion, the court scheduled an evidentiary
               hearing at 1:00 p.m. on that afternoon. At or about that time
               an evidentiary hearing was held wherein the plaintiffs put on
               proof to support the allegations in their motion and the
               defendant put on proof to rebut those allegations. After
               hearing this testimony and argument of counsel it appears to
               the court that the plaintiffs have failed to carry the burden of
               proof necessary under Rule 60.02 to set aside the agreed order
               of dismissal that was entered by this Court on May 30, 1995.
               Specifically, the court finds that there was no evidence of any
               fraud or misconduct on behalf of the defendant’s counsel,
               David W. McMackin. The court affirmatively finds that in all
               of his dealings with the plaintiffs, David W. McMackin never
               did anything to deceive them and was in fact open and
               forthright about the position he was taking on behalf of his
               client, the defendant in this case.


       Plaintiffs’ suit against David McMackin is barred by the doctrine of collateral estoppel

because the plaintiffs are bound by the final judgment of the Trial Court in their former suit

against the mortgage company. Loveman Co. v. Bayless, 128 Tenn. 307, 160 S.W.2d 841

(1913); Fourakre v. Perry, Tenn. App. 1983, 667 S.W.2d 483.

                                               -5-
       Appellants cite Collins v. Binkley, Tenn. App. 1988, 750 S.W.2d 737, wherein a lawyer,

who knew that plaintiffs were depending upon him to prepare a valid and effective transfer of

title, made an error in the form of acknowledgment. The case is distinguishable upon the facts.



       In Stinson v. Brand, Tenn. App. 1987, 738 S.W.2d 186, cited by appellants, the lawyers

for the seller denied any duty to the purchasers, but they admitted that they intended to charge

the purchaser for preparing the documents of transfer, and one of the lawyers was named as

trustee in the trust deed. The case is distinguishable upon the facts.



        In the present case, the plaintiffs, the sellers, were not justified in relying upon the

attorney for the company holding the mortgage on their property, especially when they were

plaintiffs in a pending lawsuit against the mortgage company about one of the very items of

information imparted to them by the lawyer for the mortgage company; and they were

represented by counsel in that pending lawsuit. No evidence is found to support a jury verdict

or judgment against the only defendant, David McMackin. The other defendant is not a party

to this appeal.



        The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

appellants. The cause is remanded to the Trial Court for further necessary proceedings.



                           AFFIRMED AND REMANDED



                                              _________________________________
                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION


CONCUR:


_________________________________
BEN H. CANTRELL, JUDGE




                                               -6-
CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE




                              -7-
