                                                                                          08/11/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 June 28, 2017 Session

                 ALFONZIA BILES, ET AL. v. TIFFANY ROBY

               Direct Appeal from the Circuit Court for Shelby County
                    No. CT-001050-15     Gina C. Higgins, Judge


                            No. W2016-02139-COA-R3-CV


This case involves residential property that was purchased after a foreclosure. The
purchaser filed this detainer action against the original homeowners, who refused to
vacate the property. The general sessions court ruled in favor of the purchaser, and after
a de novo trial in circuit court, the circuit court ruled in favor of the purchaser as well.
We do the same. The decision of the circuit court is hereby affirmed and remanded for
further proceedings.

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.

Drayton Durell Berkley, Memphis, Tennessee, for the appellants, Alfonzia Biles, and
Tonya Biles.

Brandon Franklin McNary, Memphis, Tennessee, for the appellee, Tiffany Roby.

                                        OPINION

                          I. FACTS & PROCEDURAL HISTORY

       Alfonzia and Tonya Biles constructed a home in 2005. They executed a deed of
trust and promissory note for $223,840. The original lender was MILA, Inc., a
Washington corporation, but the deed of trust was subsequently assigned to US Bank,
N.A. Mr. and Mrs. Biles admittedly fell behind on their mortgage payments, and US
Bank foreclosed on the property. The foreclosure sale occurred in October 2014, and US
Bank purchased the property. US Bank recorded its substitute trustee’s deed in
November 2014. In December 2014, US Bank filed a detainer action against Mr. and
Mrs. Biles in Shelby County Circuit Court, as they refused to vacate the property.

       In February 2015, Tiffany Roby purchased the property from US Bank for
$189,000. US Bank conveyed the property to Ms. Roby by special warranty deed, which
was promptly recorded. As Mr. and Mrs. Biles remained in possession of the property,
Ms. Roby filed a detainer action against them in Shelby County General Sessions Court.
Ms. Roby’s detainer action was heard on March 11, 2015, and the general sessions court
found that she was entitled to possession of the property.

        The next day, Mr. and Mrs. Biles filed a petition for writs of certiorari and
supersedeas seeking de novo review in Shelby County Circuit Court. They asserted that
Ms. Roby’s detainer action should be dismissed on the basis of prior suit pending due to
the detainer action previously filed by US Bank, which still remained pending at that
time. Mr. and Mrs. Biles also asserted the defense of wrongful foreclosure and alleged
numerous violations of provisions of the deed of trust and federal regulations. For these
various reasons, Mr. and Mrs. Biles argued that “all of these transfers, assignments, or
endorsements are void and of no effect,” and therefore, Ms. Roby never acquired valid
title. US Bank subsequently nonsuited its detainer action against Mr. and Mrs. Biles.

        The circuit court ordered the clerk to issue both writs, staying execution of the
general sessions court’s judgment in favor of Ms. Roby pending further orders of the
circuit court. The case was tried in circuit court on September 2, 2015. Three witnesses
testified: Mrs. Biles, Ms. Roby, and the vice president of a bank, who was tendered by
Ms. Roby as an expert witness in the area of mortgage banking. At the conclusion of the
testimony, the trial court took the matter under advisement. The trial judge announced
her ruling in favor of Ms. Roby on February 15, 2016, and entered a written order on
March 31, 2016.1 For reasons that will be discussed in detail below, the trial court
rejected each of the arguments set forth by Mr. and Mrs. Biles to challenge the validity of
the foreclosure, assignments, and instruments. The trial court concluded that US Bank
validly acquired title to the property and that title to the property ultimately vested in the
subsequent purchaser, Ms. Roby. The court ruled that Ms. Roby was entitled to
possession of the property as the valid owner of the fee simple interest in the property.

      Mr. and Mrs. Biles timely filed a motion to alter or amend, which was denied.
They subsequently filed a notice of appeal to this Court.




1
 The trial court’s written order was entered six months after the conclusion of the bench trial. The reason
for this delay is not apparent from the record. Tennessee Supreme Court Rule 11(III)(c) provides that
“[n]o case may be held under advisement in excess of sixty days[.]”
                                                     2
                                 II. ISSUES PRESENTED

      Mr. and Mrs. Biles present the following issues, as we perceive them, for review
on appeal:

      1.     Was the foreclosure sale void due to the lack of evidence that US
             Bank transmitted a valid acceleration letter to Mr. and Mrs. Biles;

      2.     Was the foreclosure sale void due to the loan modification package
             submitted by Mr. and Mrs. Biles;

      3.     Did Ms. Roby fail to establish her chain of title;

      4.     Did US Bank have the right to enforce the promissory note;

      5.     Is the note a negotiable instrument;

      6.     Did Ms. Roby fail to establish that she was a bona fide purchaser;

      7.     Was Ms. Roby in privity with US Bank such that her detainer action
             was barred by the prior suit pending doctrine;

      8.     Was Ms. Roby’s detainer action barred by the claim-splitting
             doctrine.

For the following reasons, we affirm the decision of the circuit court and remand for
further proceedings.

                              III. STANDARD OF REVIEW

       A trial court’s findings of fact from a bench trial are presumed to be correct, and
we will not overturn those factual findings unless the evidence preponderates against
them. Tenn. R. App. P. 13(d); In re Estate of Ledford, 419 S.W.3d 269, 277 (Tenn. Ct.
App. 2013). “For the evidence to preponderate against a trial court’s finding of fact, it
must support another finding of fact with greater convincing effect.” Watson v. Watson,
196 S.W.3d 695, 701 (Tenn. Ct. App. 2005) (citation omitted). We review the trial
court’s resolution of legal questions de novo with no presumption of correctness. Kelly v.
Kelly, 445 S.W.3d 685, 692 (Tenn. 2014).




                                            3
                                      IV. DISCUSSION

       At the outset, we consider it helpful to review the procedural posture of this case.
As noted above, this case originated as a detainer action filed in general sessions court,
and the general sessions court ruled that Ms. Roby was entitled to possession of the
property. An unsuccessful defendant in an unlawful detainer action in general sessions
court has two alternative options for seeking de novo review in circuit court. Gallatin
Hous. Auth. v. Pelt, No. M2015-01694-COA-R3-CV, 2017 WL 2172917, at *2 (Tenn.
Ct. App. May 16, 2017), perm. app. pending (citing Johnson v. Hopkins, 432 S.W.3d
840, 845 n.5 (Tenn. 2013)). He or she can file a notice of appeal within ten days, or,
within thirty days, he or she can petition the circuit court for writs of certiorari and
supersedeas. Id. (citing Tenn. Code Ann. §§ 29-18-128, -129). “The writ of certiorari
removes the case to the circuit court while the writ of supersedeas stays enforcement of
the possession judgment.” Id. (citing Nashville Hous. Auth. v. Kinnard, 207 S.W.2d
1019, 1020 (Tenn. 1948)). Together, the writs of certiorari and supersedeas enable an
unsuccessful defendant to remain in possession of the premises while seeking de novo
review. Id. at *6.

       Here, Mr. and Mrs. Biles sought review by way of a petition for writs of certiorari
and supersedeas. Thus, after the trial court issued the writs, it retried the detainer action
de novo. When a detainer action is “brought against the maker of a deed of trust who,
after default and foreclosure, refused to surrender possession of the property,” the party
seeking to gain possession by way of a summary detainer proceeding must rely on the
action of “unlawful detainer.” CitiFinancial Mortg. Co. v. Beasley, No. W2006-00386-
COA-R3-CV, 2007 WL 77289, at *7 (Tenn. Ct. App. Jan. 11, 2007). On appeal, Mr. and
Mrs. Biles do not argue that Ms. Roby failed to prove the elements of unlawful detainer,
which are (1) constructive possession of the property and (2) subsequent loss of
possession by the defendant’s act of unlawful detainer. BAC Home Loans Servicing v.
Goodson, No. M2014-02566-COA-R3-CV, 2016 WL 3752217, at *4 (Tenn. Ct. App.
July 6, 2016) (no perm. app. filed); Fed. Nat’l Mortg. Ass’n v. Daniels, 517 S.W.3d 706,
712 (Tenn. Ct. App. 2015). Instead, they rely on various affirmative defenses.
“[W]rongful foreclosure can be raised as an affirmative defense to an unlawful detainer
action.” Boyce v. LPP Mortg. Ltd., 435 S.W.3d 758, 766 (Tenn. Ct. App. 2013).

       We turn, then, to the violations alleged by the Biles in this case in support of their
affirmative defense of wrongful foreclosure.

                                 A.    Acceleration Letter

       The first issue we address is whether the trial court should have held that the
foreclosure sale was void due to the lack of evidence at trial regarding whether US Bank
                                             4
transmitted a valid acceleration letter to Mr. and Mrs. Biles prior to foreclosure. The
deed of trust executed by Mr. and Mrs. Biles contractually set forth the manner and
content of the notice required to be given to them prior to acceleration or foreclosure. On
appeal, Mr. and Mrs. Biles assert that Ms. Roby “did not provide any proof that US Bank
transmitted a valid acceleration letter.” They argue, “Roby never put on evidence that US
Bank transmitted the acceleration letter required by paragraph 22 of [the] deed of trust,
thus, the foreclosure auction is void and in turn Roby’s special warranty deed is void.”

       This argument is misplaced, however, because it was not Ms. Roby’s burden to
prove that US Bank sent a valid acceleration letter to Mr. and Mrs. Biles prior to
foreclosure. Mr. and Mrs. Biles were attempting to establish wrongful foreclosure,
which, in this context, was an affirmative defense to the unlawful detainer action. See
Boyce, 435 S.W.3d at 766; CitiMortage, Inc. v. Drake, 410 S.W.3d 797, 807-08 (Tenn.
Ct. App. 2013). “[T]he burden of proving an affirmative defense is on the party asserting
it.” Tenn. Farmers Mut. Ins. Co. v. Farrar, 337 S.W.3d 829, 837 (Tenn. Ct. App. 2009).
Moreover, we note that Mr. and Mrs. Biles alleged themselves, in their initial petition for
writs of certiorari and supersedeas in circuit court, that “[o]n or about October 18, 2013,
US Bank’s agent transmitted a purported acceleration letter to Defendants.” Factual
statements in pleadings are judicial admissions that are conclusive against the pleader in
the proceedings in which they are filed unless they have been amended or withdrawn.
Bobo v. City of Jackson, 511 S.W.3d 14, 26 n.13 (Tenn. Ct. App. 2015); McCord v. HCA
Health Servs. of Tenn., Inc., No. M2014-00142-COA-R3-CV, 2015 WL 1914634, at *9
n.22 (Tenn. Ct. App. Apr. 27, 2015), perm. app. denied (Tenn. Oct. 15, 2015).
Consequently, we find no merit in the assertion by Mr. and Mrs. Biles that the trial court
should have held that the foreclosure sale was void due to the lack of evidence from Ms.
Roby regarding an acceleration letter.

                               B.   Modification Package

        Next, we turn to the issue regarding whether the foreclosure sale was void due to a
loan modification package submitted by Mr. and Mrs. Biles prior to foreclosure. At trial,
Mrs. Biles testified that she and her husband submitted a loan modification request in
May 2014. She submitted as an exhibit a completed written application entitled,
“Making Home Affordable Program Request for Mortgage Assistance.” Mrs. Biles
testified that she had “weekly communications” with her loan servicer after the
application was submitted, but she did not describe the content of those conversations.
On appeal, Mr. and Mr. Biles argue that because they submitted a loan modification
application, “US Bank and its privies” violated federal law by initiating the foreclosure
process without first denying or rejecting their modification request. As a result, they
claim that the “foreclosure auction was void as repugnant to federal law.”

                                            5
       The trial court “found no proof to indicate that the failure to close out a loan
modification request created a violation [such] that this Court could not allow the
foreclosure to go forward.” The trial court did not err in this conclusion. Mr. and Mrs.
Biles rely on the federal regulation codified at 12 C.F.R. § 1024.41, which is entitled
“Loss mitigation procedures.” The first sentence of this regulation provides, “A borrower
may enforce the provisions of this section pursuant to section 6(f) of RESPA (12 U.S.C.
2605(f)).” 12 C.F.R. § 1024.41(a). The referenced section 6(f) authorizes the recovery
of damages from “[w]hoever fails to comply with any provision of this section.” 12
U.S.C. 2605(f). However, courts have repeatedly rejected attempts to have a foreclosure
sale declared void due to alleged noncompliance with this loan modification regulation.
For instance, in Upshaw v. Green Tree Servicing LLC, No. 15-CV-13866, 2015 WL
9269136, at *3 (E.D. Mich. Dec. 21, 2015), the court explained:

       Plaintiffs allege that Defendants violated the Real Estate Settlement
       Procedures Act (RESPA), by proceeding with a foreclosure while Plaintiffs
       were being considered for foreclosure alternatives. RESPA grants relief in
       the form of monetary damages. 12 C.F.R. § 1024.41 (“A borrower may
       enforce the provisions of this section pursuant to section 6(f) of RESPA (12
       U.S.C. 2605(f)).”); 12 U.S.C. § 2605(f) (exclusively authorizing monetary
       relief to individual borrowers). Plaintiffs, however, seek a declaration that
       the foreclosure process is null and void, injunctive relief stopping the
       foreclosure and an order requiring Defendants to negotiate a loan
       modification, none of which is available under RESPA.

              . . . “An alleged irregularity in the loan modification process [] does
       not constitute an irregularity in the foreclosure proceeding.” Campbell v.
       Nationstar Mortgage, 611 F. App’x 288, 294 (6th Cir. 2015) cert. denied,
       136 S. Ct. 272 (2015). . . . As such, Plaintiffs claims of irregularities in the
       loan modification process do not give rise to an actionable wrongful
       foreclosure claim.

(Emphasis added.) See also Houston v. U.S. Bank Home Mortg. Wisconsin Servicing,
505 F. App’x 543, 546 n.3 (6th Cir. 2012) (“RESPA permits actual damages, plus costs
and attorneys[’] fees, as a remedy in this instance, but it does not contemplate that a court
could set aside a sale.”); Hagan v. Citimortgage, Inc., No. 1:15-CV-454, 2016 WL
6275333, at *5 (W.D. Mich. Oct. 27, 2016) (“[t]here is no provision found in RESPA
under which Plaintiff can seek to have foreclosure proceedings nullified”) (quotation
omitted); Wiley v. CitiMortgage, Inc., No. 15-CV-11395, 2016 WL 8232835, at *2 (E.D.
Mich. Jan. 11, 2016) (dismissing wrongful foreclosure claim alleging that a foreclosure
sale was null and void for failure to provide notice that the plaintiffs were not eligible for
loss mitigation options, as 12 C.F.R. 1024.41 and 12 U.S.C. § 2605(f)(1) “only provide[]
                                              6
relief in the form of monetary damages”); Aqeel v. CitiMortgage, Inc., No.
114CV03685LMMCMS, 2015 WL 11439175, at *10 (N.D. Ga. July 7, 2015) adopted
sub nom. 2015 WL 11622450 (N.D. Ga. July 28, 2015) (“the principal relief sought by
Plaintiff—to set aside the foreclosure sale—is unavailable to her under RESPA”);
Abhane v. Mabe, No. A-14-CA-330-SS, 2014 WL 12480001, at *2 (W.D. Tex. Aug. 5,
2014) (“nothing in either the regulation [12 C.F.R. § 1024.41] or § 2605 suggests a sale
in violation of RESPA is void, or even that rescission of the sale is a remedy available to
the homeowner under RESPA”); Alex S. Moe, Against Accetturo and Beyond Bukowski:
Litigating Notices in Illinois Foreclosures, 48 Loy. U. Chi. L.J. 949, 1014 n.86 (2017)
(observing that 12 C.F.R. § 1024.41 “does not provide the get-out-of-foreclosure-free
card that borrowers might hope it would”).

       Based on the foregoing authority, we find no merit in the issue raised by Mr. and
Mrs. Biles on appeal suggesting that the “foreclosure auction was void as repugnant to
federal law” due to their submission of a loan modification request.

                           C.    The Substitute Trustee’s Deed

         Next, we address whether Ms. Roby failed to sufficiently establish her chain of
title at trial because the trial court never entered US Bank’s substitute trustee’s deed into
evidence. Because of this singular omission, Mr. and Mrs. Biles claim that US Bank’s
title was not established, and therefore, Ms. Roby’s title was not established either.

       The trial court found that US Bank recorded its substitute trustee’s deed in the
register’s office on November 10, 2014, and that ownership was divested from Mr. and
Mrs. Biles and vested in US Bank. In their petition for writs of certiorari and
supersedeas, Mr. and Mrs. Biles had alleged themselves, in their factual allegations, that
“[o]n or about November 10, 2014, US Bank recorded its substitute trustee’s deed.” Ms.
Roby admitted this factual allegation in her response to the petition. Because this fact
was alleged by Mr. and Mrs. Biles and admitted by Ms. Roby, Mr. and Mrs. Biles cannot
now take a position to the contrary. See Zimmerman v. Elm Hill Marina, 839 S.W.2d
760, 763 (Tenn. Ct. App. 1992). “[W]hen the allegations of a complaint are admitted,
‘the subject matter thereof is removed as an issue, no proof is necessary[,] and it becomes
conclusive on the parties.’” Sakaan v. Fedex Corp., Inc., No. W2016-00648-COA-R3-
CV, 2016 WL 7396050, at *4 (Tenn. Ct. App. Dec. 21, 2016) (no perm. app. filed)
(quoting Rast v. Terry, 532 S.W.2d 552, 554 (Tenn. 1976)). Even still, at trial, Ms. Roby
presented the testimony of an expert witness who testified that she had reviewed the
records of the register’s office and found the substitute trustee’s deed in her review of the
records. The record contains ample evidence to support the trial court’s finding that US
Bank recorded its substitute trustee’s deed in the register’s office on November 10, 2014.

                                             7
               D.    US Bank’s Right to Enforce the Note and Foreclose

       The trial court found that Mortgage Electronic Registration Systems (“MERS”)
was the nominee for MILA, Inc., and was the original beneficiary in the deed of trust.
The trial court also found that MERS assigned the deed of trust to US Bank on September
12, 2011, and that the assignment from MERS to US Bank was valid. On appeal, Mr.
and Mrs. Biles argue that the original lender, MILA Inc., “lost the power to assign the
note in 2011,” and therefore, the note was never “effectively assigned” to US Bank. Mr.
and Mrs. Biles claim that MILA, Inc. “lost the power to assign” the note because they
submitted as an exhibit at trial a document purportedly showing that MILA, Inc. was
incorporated in the State of Washington with an “Expiration Date” of April 30, 2011, and
an “Inactive Date” of August 1, 2011. As a result, they claim that US Bank had no right
to enforce the note as an assignee (or alternatively as a third party beneficiary), and
therefore, US Bank had “no standing to foreclose.”

        The only authority cited by Mr. and Mrs. Biles in support of their challenge to the
assignment is the following statement in their brief: “In Collier v. Greenbrier Developers
LLC, 358 S.W.3d 195 (Tenn. Ct. App. 2009), the Tennessee Court of Appeals held that
an assignee stands in the shoes of the assignor if there is an effective assignment.” We
conclude that this is nothing more than a skeletal argument, and we deem this issue
waived. “It is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her, and where a party fails to develop an
argument in support of his or her contention or merely constructs a skeletal argument, the
issue is waived.” Sneed v. Bd. of Prof’l Responsibility of Sup. Ct., 301 S.W.3d 603, 615
(Tenn. 2010). “[P]arties must thoroughly brief the issues they expect the appellate courts
to consider.” Waters v. Farr, 291 S.W.3d 873, 919 (Tenn. 2009). We decline to address
the assertion that MILA Inc. “lost the power to assign” the note to US Bank such that US
Bank lacked standing to foreclose.

                              E.    Negotiable Instrument

       Next, Mr. and Mrs. Biles argue that the note they executed was not a negotiable
instrument because, they claim, it was not an unconditional promise to pay a fixed sum of
money, payable to bearer or order at a definite time, without any other instruction or
undertaking. These issues were not raised before the trial court. The term “negotiable
instrument” was used only once before the trial court, during closing argument by
counsel for Mr. and Mrs. Biles, when he suggested that MILA, Inc. was required to sign
the note in order to transfer the property. Mr. and Mrs. Biles never raised any of these
arguments regarding the lack of an unconditional promise to pay a fixed sum, whether the
note was payable to bearer or order at a definite time, or whether it contained other
instructions or undertakings, and as a result, the trial court did not consider them. The
                                            8
Tennessee Supreme Court has declined to consider constitutional arguments raised for
the first time during closing arguments and “minimally addressed,” concluding that such
arguments are not properly raised and are waived on appeal. In re M.L.P., 281 S.W.3d
387, 394 (Tenn. 2009); In re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001). We
likewise conclude that the Biles’ issue regarding whether the note was a negotiable
instrument was late-raised, minimally addressed (at best), and waived on appeal. As a
court of appeals, “we are limited in authority to the adjudication of issues that are
presented and decided in the trial courts.” In re Adoption of E.N.R., 42 S.W.3d at 31-32.
These issues regarding negotiable instruments were neither presented nor decided in the
court below.

                                     F.    Bona Fide Purchaser

        Next, Mr. and Mrs. Biles claim that Ms. Roby cannot qualify as a “bona fide
purchaser” because (1) she purchased the property without seeing the inside of it; and (2)
Mr. and Mrs. Biles recorded a document entitled “Notice of Rescission” on the morning
of the foreclosure auction by US Bank.2 Mr. and Mrs. Biles argue that these facts prevent
Ms. Roby from qualifying as a “bona fide purchaser” and obtaining title “free of any
prior defects.” They claim that without “bona fide purchaser” status, Ms. Roby “received
her deed subject to all claims of Alfonzia and Tonya Biles against US Bank.” However,
we are not persuaded. Further inquiry regarding these two facts might have led Ms. Roby
to discover that Mr. and Mr. Biles were unlawfully detaining the property in spite of the
valid foreclosure sale. However, knowledge of these facts does not mean that Ms. Roby
took defective title or that she is not now entitled to possession in this unlawful detainer
action.

                                      G.     Prior Suit Pending

       Mr. and Mrs. Biles also argue that Ms. Roby’s detainer action against them was
barred by the doctrine of prior case pending because, when she filed her detainer warrant,
US Bank’s separate detainer action was still pending. After Mr. and Mrs. Biles asserted
the doctrine of prior suit pending, US Bank nonsuited its detainer action.

        “The defense of prior suit pending derives from the common law rule that a party

2
 The document entitled “Notice of Rescission” stated that Mr. and Mrs. Biles were “demand[ing]
rescission of the promissory note, deed of trust, and a return of all payments of any type of kind tendered
to [the loan servicer] or US Bank, N.A. or any predecessor servicer pursuant to 15 USC § 1635 and 15
USC § 1641(g).” However, 15 USC § 1635(e) states, “This section does not apply to-- (1) a residential
mortgage transaction[.]” The trial court found that the Notice of Rescission was invalid, and Mr. and
Mrs. Biles do not raise any issue on appeal regarding the validity of their Notice of Rescission. They
simply claim that it provided constructive notice to Ms. Roby of their dispute with US Bank.
                                                     9
could have an action dismissed if there was a prior suit filed against her for the same
claims in the same jurisdiction.” Cannon ex rel. Good v. Reddy, 428 S.W.3d 795, 797 n.2
(Tenn. 2014). In its modern form, it requires proof of four elements:

        (1) the lawsuits must involve identical subject matter; (2) the lawsuits must
        be between the same parties or their privies; (3) the former lawsuit must be
        pending in a court having subject matter jurisdiction over the dispute; and
        (4) the former lawsuit must be pending in a court having personal
        jurisdiction over the parties.

Id. However, our supreme court has recognized an additional limitation on the
applicability of the prior suit pending doctrine. West v. Vought Aircraft Indus., Inc., 256
S.W.3d 618, 623 n.5 (Tenn. 2008). The doctrine “is inapplicable when the prior lawsuit
has been dismissed or discontinued.” Id. (citing Walker v. Vandiver, 133 Tenn. 423, 181
S.W. 310, 311 (1915)). “In other words, the prior lawsuit must continue to be ‘pending’
in order for a subsequent lawsuit to warrant dismissal.” Id. For instance, in Reddy, 428
S.W.3d at 798, our supreme court concluded that the entry of an order voluntarily
dismissing the previous action rendered moot the appellant’s argument regarding the
doctrine of prior suit pending. The court recognized that “dismissal of a prior suit before
the trial of a subsequent suit obviates the defense of prior suit pending.” Id. (citing
Walker, 181 S.W.3d at 311). See also Lewis v. Muchmore, 26 S.W.3d 632, 637 (Tenn.
Ct. App. 2000) (noting that the appellants could no longer avail themselves of the prior
suit pending doctrine due to a nonsuit of the other action); Roy v. Diamond, 16 S.W.3d
783, 790 (Tenn. Ct. App. 1999) (“The dismissal of the first action prior to the trial of the
second action was sufficient to avoid any technical problems relating to the doctrine of
prior suit pending.”). The trial court found (and the parties do not dispute) that US Bank
nonsuited its detainer action prior to the trial in this case.3 Thus, by the time of trial, the
3
 We recognize that the trial court found the prior suit pending doctrine inapplicable because the two
detainer actions involved different parties. However, the doctrine can apply if the two lawsuits are
between the same parties or their privies. West, 256 S.W.3d at 623 n.4 (“the doctrine of prior suit
pending may also be applicable when a party in a subsequent lawsuit is the privy of a party in the former
lawsuit”). The trial court did not analyze the issue of privity. We conclude that the dismissal of the first
detainer action is determinative and do not reach the “same party” issue that the trial court addressed.
This Court can affirm the trial court even if it reached the correct result for the wrong reason. Torres v.
Bridgestone/Firestone N. Am. Tire, LLC, 498 S.W.3d 565, 577 (Tenn. Ct. App. 2016). Some courts refer
to this as the “tipsy coachman” doctrine.” See, e.g., State v. Diaz de la Portilla, 177 So.3d 965, 974 (Fla.
2015) (describing “the tipsy coachman doctrine” permitting a reviewing court to affirm the decision of a
lower court that reaches the right result for the wrong reason).

        The use of that moniker stems from a 19th century Georgia case, Lee v. Porter, 63 Ga.
        345, 346 (1879), in which the Georgia Supreme Court explained:

                “It not infrequently happens that a judgment is affirmed upon a theory of
                                                     10
same claims were not being asserted against Mr. and Mrs. Biles in two different cases.

       Although Mr. and Mrs. Biles do not raise any issue on appeal regarding this fact,
we note that the trial court’s order in this case states that “counter-claims against US
Bank” remained pending in the first action after US Bank’s nonsuit. This does
complicate our analysis of the prior suit pending issue somewhat. However, without
some evidence to suggest the nature of the “counter-claims” asserted by Mr. and Mrs.
Biles, we cannot determine whether the prior suit involves “identical subject matter”
when compared to this suit. See Reddy, 428 S.W.3d at 797 n.2 (listing the elements of
the defense of prior suit pending). Consequently, the defense of prior suit pending was
not sufficiently proven, and we must conclude that the prior suit does not bar this detainer
action. See, e.g., Hampton v. Tenn. Truck Sales, Inc., 993 S.W.2d 643, 643 (Tenn. Ct.
App. 1999) (reversing a finding of prior suit pending because the record did not include
evidence from which we could conclude that the same issues were pending in the prior
case).

                                  H.     Claim-Splitting Doctrine

        Finally, Mr. and Mrs. Biles assert that US Bank’s detainer action and Ms. Roby’s
detainer action “split the same cause of action” and therefore Ms. Roby’s claim was
barred by the claim-splitting doctrine. The prohibition against splitting an indivisible
cause of action is a logical extension of the principles underlying the doctrine of res
judicata; it shields a defendant from a multiplicity of suits. Utley v. Cullum, No. 01A01-
9604-CV-00164, 1997 WL 122797, at *3 (Tenn. Ct. App. Mar. 19, 1997). That concern
is not present here due to the nonsuit of US Bank’s detainer action. See Herff Motor Co.
v. Seewald, 172 S.W.2d 820, 820-21 (Tenn. 1943) (concluding that the defendant was not
entitled to dismissal for impermissible “splitting of the cause of action” when the plaintiff

                the case which did not occur to the court that rendered it, or which did
                occur and was expressly repudiated. The human mind is so constituted
                that in many instances it finds the truth when wholly unable to find the
                way that leads to it.”

        (Emphasis [in] original.) The Georgia Supreme Court then invoked the following verse
        by Oliver Goldsmith:

                “‘[T]he pupil of impulse, it forc’d him along,
                His conduct still right, with his argument wrong;
                Still aiming at honor, yet fearing to roam,
                The coachman was tipsy, the chariot drove home.’”

        63 Ga. at 346.

Pavilion Dev., L.L.C. v. JBJ P’ship, 979 So. 2d 24, 44-45 (Ala. 2007) (Murdock, J., concurring).
                                                    11
nonsuited the other suits). This issue has no merit.

                                     V. CONCLUSION

        For the aforementioned reasons, we affirm the circuit court’s order in favor of Ms.
Roby in all respects. Costs of this appeal are taxed to the appellants, Alfonzia and Tonya
Biles, for which execution may issue if necessary.



                                                  _________________________________
                                                  BRANDON O. GIBSON, JUDGE




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