               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                April 15, 2015 Session

        RUSSELL H. HIPPE, JR. V. MILLER & MARTIN, PLLC

               Appeal from the Chancery Court for Davidson County
                   No. 1421I    Claudia Bonnyman, Chancellor




                No. M2014-01184-COA-R3-CV – Filed May 12, 2015


A former member of a law firm filed a complaint against the law firm in 2009 alleging
breach of contract. The trial court dismissed the complaint because it was filed after the
statute of limitations had run. The individual member filed another complaint in 2014,
alleging a breach of the same contract. The law firm moved to dismiss the 2014
complaint on the basis that it was barred by res judicata. The trial court agreed and
dismissed the 2014 complaint. The individual appealed the trial court‟s dismissal, and
we affirm. We find the appeal is frivolous and grant the law firm‟s request for an award
of its attorneys‟ fees and expenses.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
P.J., M.S., and RICHARD H. DINKINS, J., joined.

Russell H. Hippe, Jr., Nashville, Tennessee, Pro Se.

John P. Branham, Nashville, Tennessee; William P. Eiselstein and Lynzi J. Archibald,
Chattanooga, Tennessee; for the appellee, Miller & Martin, PLLC.

                                      OPINION

                              PROCEDURAL BACKGROUND

        Russell L. Hippe, Jr., is a lawyer who used to be a member of the law firm Trabue,
Sturdivant & DeWitt. In 1988, he executed a partnership agreement that addressed, inter
alia, retirement benefits. Miller & Martin, PLLC (“M&M”) is the successor by merger to
the Trabue firm. In January 2009, Mr. Hippe filed a complaint against M&M alleging
M&M was in breach of a contract that Mr. Hippe asserted entitled him to retirement
benefits. Mr. Hippe amended his complaint two months later, in March 2009. M&M
filed a motion to dismiss both the initial complaint and the amended complaint, and the
trial court dismissed Mr. Hippe‟s complaint in May 2009 after finding that his cause of
action was barred by the statute of limitations. Mr. Hippe appealed the trial court‟s
dismissal to this Court, and we affirmed the trial court‟s dismissal in January 2010. See
Hippe v. Miller & Martin, PLLC, No. M2009-01917-COA-R3-CV, 2010 WL 334642,
perm. app. denied (Aug. 25, 2010).

        In January 2014, five years after filing his initial complaint, Mr. Hippe filed
another complaint against M&M, again alleging a breach of the same contract. M&M
filed a motion for summary judgment pursuant to Tenn. R. Civ. P. 56.02, arguing that Mr.
Hippe‟s 2014 complaint was barred by the doctrine of res judicata. Mr. Hippe opposed
M&M‟s motion and filed his own motion for summary judgment. The trial court granted
M&M‟s motion and denied Mr. Hippe‟s motion. The court wrote, in pertinent part:

             The same parties were involved in both Plaintiff‟s 2009 Claim and
      the Current Claim. The same claim or cause of action was asserted in both
      Plaintiff‟s 2009 Claim and the Current Claim. Finally, contrary to
      Plaintiff‟s argument, this Court‟s dismissal of Plaintiff‟s 2009 Claim was
      final and on the merits.

              The rule of res judicata is applicable to former judgments which
      determined the question of statute of limitations. Unless the court in its
      order for dismissal otherwise specifies, a dismissal operates as an
      adjudication upon the merits. Additionally, a judgment on the merits is
      final if it resolves all the issues in the case, leaving nothing else for the trial
      court to do. This Court‟s Order dismissing Plaintiff‟s 2009 Claim 1)
      determined the question of statute of limitations, 2) contained no language
      to suggest that its judgment was not on the merits, and 3) dismissed
      Plaintiff‟s 2009 Claim in its entirety. Therefore, this Court‟s dismissal of
      Plaintiff‟s 2009 Claim constitutes a final judgment on the merits. (Citations
      and quotations omitted.)

      ....

             The Court reviewed the trial court order from the first Hippe v.
      Miller & Martin, PLLC case, dismissed pursuant to Rule 12.02(6), based
      upon failure to state a claim, because the statute of limitations had run. The
      trial court order was entered “with prejudice.” A trial court judgment
      granting a Rule 12.02(6) dismissal is a judgment on the merits for res
      judicata purposes.


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       Mr. Hippe appeals the trial court‟s judgment granting M&M‟s motion for
summary judgment. He contends that the dismissal of his 2009 complaint was not a
dismissal of his cause of action, and that the doctrine of res judicata, therefore, does not
apply to the complaint he filed in 2014. M&M argues that Mr. Hippe‟s appeal is
frivolous and seeks damages pursuant to Tenn. Code Ann. § 27-1-122.

                                        ANALYSIS

       The trial court‟s decision granting M&M‟s motion for summary judgment
involves a question of law and is not entitled to a presumption of correctness on appeal.
King v. Betts, 354 S.W.3d 691, 711 (Tenn. 2011). The reviewing court must make its
own determination about whether M&M is entitled to summary judgment based on an
independent review of the record. Id.

       The doctrine of res judicata has been described thusly:

               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).

Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012). The party asserting res judicata,
M&M here, is required to show (1) that a court of competent jurisdiction issued the
underlying judgment; (2) that the same parties (or those in privity with them) were
involved in both actions; (3) that both suits involved the same claim or cause of action;
and (4) that the underlying judgment was final and was decided on the merits. Id. (citing
Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App. 1998)).

       Mr. Hippe contests only the fourth element of res judicata—whether the
underlying judgment was final and was decided on the merits. Mr. Hippe‟s argument,
however, is not supported by the case law. The Tennessee Supreme Court has explicitly
stated that “any dismissal of a claim other than a dismissal for lack of jurisdiction, for
lack of venue, or for lack of an indispensable party „operates as an adjudication upon the
merits,‟ unless the trial court specifies otherwise in its order for dismissal.” Creech v.


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Addington, 281 S.W.3d 363, 378 (Tenn. 2009) (quoting Tenn. R. Civ. P. 41.02(3)).1
Thus, the Creech Court found, “an order granting a motion to dismiss for failure to state a
claim upon which relief can be granted under Tennessee Rule of Civil Procedure 12.02(6)
is an adjudication on the merits.” Id. (citing Boyd v. Prime Focus, Inc., 83 S.W.3d 761,
766 (Tenn. Ct. App. 2001)).

        The basis for M&M‟s motion to dismiss Mr. Hippe‟s amended complaint in 2009
was Tenn. R. Civ. P. 12.02(6), which is the failure to state a claim for which relief can be
granted. The trial court granted M&M‟s motion in 2009, stating “The Court . . .
dismisses Plaintiff‟s breach of contract claim because it is barred by the statute of
limitations.” There is no question that the dismissal of Mr. Hippe‟s 2009 complaint was
a final decision and was an adjudication upon the merits. See Grigsby v. City of
Plainview, No. E2006-02269-COA-R3-CV, 2007 WL 3171134, at *4 (Tenn. Ct. App.
Oct. 30, 2007) (“[t]he rule of res judicata is applicable to former judgments which
determined the question of statute of limitations”) (quoting Porter v. Daniels, No. 88-
276-II, 1989 WL 14219, at *3 (Tenn. Ct. App. Feb. 22, 1989)).

      Mr. Hippe also argues that when M&M filed its motion to dismiss his 2009
complaint, “[t]he only relief that Defendant requested in this Motion was the dismissal of
the complaint; the Defendant did not request a dismissal of the cause of action.” This
argument is difficult to understand because the purpose of a complaint is to set forth one
or more causes of action. Mr. Hippe fails to explain what it means for a court to dismiss
a complaint if the dismissal is not of the plaintiff‟s cause(s) of action set forth in the
complaint. This argument by Mr. Hippe has no merit.

       M&M seeks an award of its attorneys‟ fees and expenses on the basis that this
appeal by Mr. Hippe is frivolous. A frivolous appeal has been described as one that is
“devoid of merit” and that “has no reasonable chance of succeeding.” Young v. Barrow,
130 S.W.3d 59, 67 (Tenn. Ct. App. 2003). Appellate courts are authorized by statute to
award damages against an appellant when an appellee is required to defend a frivolous
appeal:

           When it appears to any reviewing court that the appeal from any court of
           record was frivolous or taken solely for delay, the court may, either upon
           motion of a party or of its own motion, award just damages against the
           appellant, which may include but need not be limited to, costs, interest on


1
    Tennessee Rule of Civil Procedure 41.02(3) provides:

           Unless the court in its order for dismissal otherwise specifies, a dismissal under this
           subdivision and any dismissal not provided for in this Rule 41, other than a dismissal for
           lack of jurisdiction or for improper venue or for lack of an indispensable party, operates
           as an adjudication upon the merits.

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      the judgment, and expenses incurred by the appellee as a result of the
      appeal.

Tenn. Code Ann. § 27-1-122.

      This appeal is devoid of merit and had no reasonable chance of success.
Accordingly, we exercise our discretion to award M&M the reasonable attorneys‟ fees
and expenses it incurred on appeal, which amount shall be determined by the trial court
upon remand.

                                     CONCLUSION

      We affirm the trial court‟s judgment. The case is remanded to the trial court for a
determination of M&M‟s reasonable attorneys‟ fees and expenses, which shall be
awarded against Mr. Hippe. Costs of this appeal are assessed against the appellant,
Russell H. Hippe, Jr., for which execution may issue if necessary.



                                                         _________________________
                                                         ANDY D. BENNETT, JUDGE




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