      IN THE COURT OF APPEALS OF TENNESSEE
           MIDDLE SECTION AT NASHVILLE

                                            FILED
                                                July 9, 1997
TOM MILLIGAN and wife           )
                                            Cecil W. Crowson
LOUISE MILLIGAN,                )
                                           Appellate Court Clerk
                                )
      Plaintiffs/Appellees,     )   Cannon Chancery
                                )   No. 95-27
VS.                             )
                                )   Appeal No.
CURTIS GEORGE and wife          )   01A01-9609-CH-00406
WILMA J. GEORGE,                )
                                )
      Defendants/Appellants.    )




   APPEAL FROM THE CHANCERY COURT FOR CANNON COUNTY
                AT WOODBURY, TENNESSEE

        THE HONORABLE ROBERT E. CORLEW, CHANCELLOR



For the Plaintiffs/Appellees:       For the Defendants/Appellants:

Frank Buck                          Sue N. Puckett-Jernigan
Lena Ann Buck                       Smithville, Tennessee
Smithville, Tennessee




                 AFFIRMED AND REMANDED




                                    WILLIAM C. KOCH, JR., JUDGE
                                OPINION

      This interlocutory appeal involves a boundary line dispute between
neighbors who live along Wilmouth Creek in Cannon County. Following
inconclusive litigation between two of their neighbors, the owners of one of the
tracts filed a boundary line action in the Chancery Court for Cannon County
against the owners of one of the adjoining tracts that had been involved in the
earlier litigation. The defending landowners moved to dismiss the complaint on
the ground that the decision in the earlier litigation was res judicata as to the
plaintiff landowners’ claims. The trial court denied the motion but granted
permission to seek an interlocutory appeal. We granted the application for
permission to appeal and now affirm the denial of the motion to dismiss because
the parties in this case and the former case are not the same.


                                          I.


      Three families live along some bottom land adjacent to Wilmouth Creek
Road in the Liberty community of Cannon County. Robert E. and Jerris Ann
Campbell (the “Campbells”) live on a 35-acre tract that has been owned by Mr.
Campbell’s family for many years. Wilmouth Creek and Wilmouth Creek Road
run in a north to south direction along the eastern boundary of the Campbells’
property. Their neighbors to the east are Curtis and Wilma J. George (the
“Georges”). The Georges purchased their 31.25-acre tract in July 1983. The
Campbells’ neighbors to the south and west are Tom and Louise Milligan (the
“Milligans”). The Milligans purchased their 40-acre tract in October 1985.
Wilmouth Creek Road and Wilmouth Creek also run along a portion of the eastern
boundary of the Milligans’ property. A small portion of the Milligans’ property
shares a boundary line with the southern portion of the Georges’ property.


      While the terrain in this area is hilly, there is a relatively level strip of good
bottom land along Wilmouth Creek and Wilmouth Creek Road. The neighbors’
disagreement concerns the ownership of this bottom land. The Georges believe
that they own the land east of Wilmouth Creek because a 1924 deed in their chain


                                         -2-
of title identified Wilmouth Creek as the western boundary line of their property.
Both the Campbells and the Milligans believe that their boundary line with the
Georges is to the east of the present location of Wilmouth Creek because the creek
moved to the west following a flood occurring between 1925 and 1927.


       In March 1993 the Georges filed suit in the Chancery Court for Cannon
County to enjoin the Campbells from removing a fence the Georges had erected
along the creek. The Campbells counterclaimed that they owned the disputed
property under color of title and by adverse possession and that the Georges were
trespassing on and interfering with their use of the property. Following a bench
trial in March 1994, the trial court entered a final judgment, concluding that “both
the plaintiffs and the defendants have failed to carry their respective burdens of
proof, and, accordingly, that both complaints should be dismissed.” George v.
Campbell, Civ. Action No. 93-28 (Cannon Chan. April 8, 1994).


       On March 28, 1995, the Milligans filed the present suit against the Georges
in the Chancery Court for Cannon County seeking a declaration that they, rather
than the Georges, owned a portion of the bottom land.1 They asserted in their
complaint that “somewhere between the approximate time of 1925 and 1927, the
creek moved from its eastern location to its more western location and did so
suddenly in a great flood.” The Milligans also requested the trial court to enjoin
the Georges from interfering with their efforts to survey the property. In support
of this request, they averred “that on or about December 5, 1994, the Plaintiffs’
surveyor . . . asked permission of the Defendants to survey the aforesaid property
by virtue of achieving closure of both the Plaintiffs’ and the Defendants’
properties. In a similar and interrelated cause of action in Campbell v. George, the
cause of action was tried previously and Chancellor Stegall dismissed the cause




       1
        Regrettably the complaint does not describe this disputed property with precision. The
complaint states that “[e]xhibit No. 12 to the original complaint only” depicts the disputed
property as a “small area marked in red.” This exhibit was not included in the appellate record
when it was originally filed with this court and is likewise not part of the supplemental appellate
record. The trial court clerk has been unable to comply with our order to file the fourteen
exhibits referred to in the Milligans’ complaint. Accordingly, in an order entered
contemporaneously with this opinion, we have ordered the trial court clerk to forfeit all costs for
the preparation and transmission of the record in accordance with Tenn. R. App. P. 40(g).

                                               -3-
of action because there was no closure of the survey of Defendants’ properties.”


      One week later, the Campbells filed a separate suit against the Georges in
the Chancery Court for Cannon County seeking to establish the boundary lines
between their properties. See Campbell v. George, Civ. Action No. 95-36
(Cannon Chan.). This suit apparently raises the same issues that the trial court had
been unable to resolve in the earlier lawsuit between the same parties.


      Seizing on the reference in the Milligans’ complaint to the “similar and
interrelated cause of action in Campbell v. George,” the Georges moved to dismiss
the Milligans’ complaint on the ground that is was barred by the doctrine of res
judicata. The Georges asserted that property claimed by the Milligans “is a
portion of the exact same property claimed by the Campbell plaintiffs” in George
v. Campbell.    The Georges filed a similar motion seeking to dismiss the
Campbells’ lawsuit. On September 20, 1995, the trial court filed an opinion
denying the Campbells’ motion to dismiss in both cases. Following the entry of
an order on April 19, 1996 denying the motions, the trial court entered an order
on September 5, 1996, granting permission to seek an interlocutory appeal. We
granted the Georges permission to appeal on September 25, 1996.


                                        II.
                          THE SCOPE OF THIS APPEAL


      We must, as a threshold matter, address the scope of this appeal. We have
determined that we should not consider issues relating to the doctrine of collateral
estoppel or to the denial of the Georges’ motion to dismiss the Campbells’ April
1995 complaint because of the scope of the Georges’ motion to dismiss and
because of shortcomings in the record filed with this court.


      The Court of Appeals has appellate jurisdiction only. Tenn. Code Ann. §
16-4-108(a)(1) (1994); Clement v. Nichols, 186 Tenn. 235, 237, 209 S.W.2d 23,
23 (1948); Stewart Title Guar. Co. v. FDIC, 936 S.W.2d 266, 270-71 (Tenn. Ct.
App. 1996); John Weis, Inc. v. Reed, 22 Tenn. App. 90, 100, 118 S.W.2d 677, 683
(1938). Accordingly, we decline to consider issues and defenses that have not

                                        -4-
been presented to the trial court. Simpson v. Frontier Community Credit Union,
810 S.W.2d 147, 153 (Tenn. 1991); Alumax Aluminum Corp. v. Armstrong Ceiling
Sys., Inc., 744 S.W.2d 907, 910 (Tenn. Ct. App. 1987); Yarbrough v. Stiles, 717
S.W.2d 886, 888 (Tenn. Ct. App. 1986).


           The scope of an interlocutory appeal is further restricted because the
appellate courts will not consider issues beyond those certified by the trial court
and accepted by the appellate court. Tennessee Dep’t of Mental Health and
Mental Retardation v. Hughes, 531 S.W.2d 299, 300 (Tenn. 1975); State v.
Hazzard, 743 S.W.2d 938, 941 (Tenn. Crim. App. 1987); Montcastle v. Baird, 723
S.W.2d 119, 122 (Tenn. Ct. App. 1986). Trial courts may not, however, certify
questions to the appellate court that have not actually been raised by the parties
and decided by the trial court. Permitting the trial court to do so would require the
appellate courts to consider hypothetical issues that are not the proper subject of
judicial review. Judicial economy prompts us to avoid rendering advisory
opinions or deciding abstract legal questions. McIntyre v. Traughber, 884 S.W.2d
134, 137 (Tenn. Ct. App. 1994).


       The Georges’ motion to dismiss the Milligans’ complaint asserted only a
res judicata defense.2 The trial court’s opinion, bearing the combined style of
Milligan v. George and Campbell v. George, was based only on res judicata. The
trial court mentioned the doctrine of collateral estoppel in dicta when it observed:
“[i]ssues perhaps could be raised as to whether collateral estoppel might apply, but
those are not raised herein. Without a lengthy explanation, it would be the
opinion of this Court, that collateral estoppel also would not bar the suit between
Milligan and George.” Later in the opinion, the trial court disposed of the motion
to dismiss the Campbells’ complaint on the grounds of res judicata without
mentioning collateral estoppel. No conclusion can be drawn from this record
other than that the Georges did not assert, and the trial court did not act on, a
collateral estoppel defense in either Milligan v. George or Campbell v. George.




       2
         While we assume that the Georges’ motion to dismiss in Campbell v. George was
similar, we cannot know this with certainty since the record in Campbell v. George has not been
filed with this court.

                                             -5-
       Following the entry of the order denying the motion to dismiss the
Milligans’ claims, the Georges filed a motion requesting permission to seek an
interlocutory appeal. Notwithstanding the fact that the Georges’ motion to
dismiss did not invoke the doctrine of collateral estoppel, the trial court entered
an order granting the Georges permission to seek an interlocutory appeal,
erroneously reciting that the Georges’ motion to dismiss contained a collateral
estoppel defense. The order also recited that:
                     The doctrines of res judicata and collateral
               estoppel are extremely important in our jurisprudence
               as they provide finality and closure to issues and
               lawsuits which have been previously decided, and they
               promote respect for judicial rulings; yet the Court had
               concerns that the prior order did not resolve the issues
               between the parties. . .”3

Our order granting the interlocutory appeal repeated this language. After we
granted the interlocutory appeal, the trial court clerk transmitted only the record
in Milligan v. George to this court. Despite our repeated attempts to obtain the
full record needed to adjudicate the merits of this appeal, we have not received the
complete record in Milligan v. George, and we have not received the record in
Campbell v. George.


       Based on these circumstances, we have determined that it would be
inappropriate to address the effect of the doctrine of collateral estoppel on either
the Milligans’ claims or the Campbells’ claims because the Georges never
asserted a collateral estoppel defense in the trial court. We have also determined
that we should not consider the effect of the doctrine of res judicata on the
Campbells’ claims because the Georges have perfected an interlocutory appeal
only from the denial of their motion to dismiss in Milligan v. George. None of the
motions or orders seeking an interlocutory appeal refer to an appeal from the
denial of the Georges’ motion to dismiss in Campbell v. George, and the record
in Campbell v. George has not been filed with this court. Accordingly, the only
issue ripe for adjudication on this appeal is whether the doctrine of res judicata
bars the Milligans’ complaint against the Georges.

       3
         The language in the latter part of the quoted text had nothing to do with the Milligans’
claims because they had not been “parties” to the earlier George v. Campbell litigation. The trial
court’s reference to “parties” could only have been to the Campbells and the Milligans.

                                               -6-
                                         III.
                          THE RES JUDICATA DEFENSE


      The Georges assert that the trial court should have granted their motion to
dismiss the Milligans’ suit because the Milligans sought to litigate issues that
were similar to the issues raised in George v. Campbell. Without question, one
of the pivotal issues in both George v. Campbell and Milligan v. George is the
claim that Wilmouth Creek suddenly changed its course following a flood
between 1925 and 1927. However, issue identity is not the only ingredient of the
doctrine of res judicata; identity of parties is also necessary.


      Res judicata is a claim preclusion doctrine that promotes finality in
litigation. Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976). It bars
a second suit between the same parties or their privies on the same cause of action
with respect to all the issues which were or could have been litigated in the former
suit. Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn.
1995). Parties asserting a res judicata defense must demonstrate that (1) a court
of competent jurisdiction rendered the prior judgment, (2) the prior judgment was
final and on the merits, (3) that the same parties or their privies were involved in
both proceedings, and (4) both proceedings involved the same cause of action.
White v. White, 876 S.W.2d 837, 839 (Tenn. 1994); Collins v. Greene County
Bank, 916 S.W.2d 941, 945 (Tenn. Ct. App. 1995).


      Identity of the parties or their privies in the two actions is indispensable to
res judicata defense. See Shell v. Law, 935 S.W.2d 402, 408 (Tenn. Ct. App.
1996); Stacks v. Saunders, 812 S.W.2d 587, 590 (Tenn. Ct. App. 1990). In the
context of the res judicata defense, “privity” relates to the subject matter of the
litigation, Harris v. St. Mary’s Medical Ctr., Inc., 726 S.W.2d 902, 905 (Tenn.
1987); Shelley v. Gipson, 218 Tenn. 1, 7, 400 S.W.2d 709, 712 (1966). It requires
a mutual or successive relationship to the same rights of property. Phillips v.
General Motors Corp., 669 S.W.2d 665, 669 (Tenn. Ct. App. 1984). Thus, parties
to litigation involving the title to real property will be bound by an earlier decree
establishing title to the property in which their successors in title participated. See
Uhlhorn v. Keltner, 637 S.W.2d 844, 848 (Tenn. 1982).

                                         -7-
        The fatal flaw in the Georges’ res judicata defense is that the Milligans are
not in privity with the Campbells with regard to the disputed boundary line
between the Campbells’ property and the Georges’ property. The Campbells and
the Milligans own different tracts of property, and the Milligans’ boundary line
with the Georges is different. Thus, the Campbells are not the Milligans’
successors in title. Since the Milligans were not parties to George v. Campbell,
this earlier litigation cannot provide a basis for invoking the doctrine of res
judicata.4




                                               IV.


        We affirm the order dismissing the Georges’ motion to dismiss the
Milligans’ complaint and remand the case to the trial court for further proceedings
consistent with this opinion. We tax the costs of this appeal to Curtis and Wilma
J. George and their surety for which execution, if necessary, may issue.




                                                        ____________________________

       4
         We would reach an identical conclusion if we were considering whether the doctrine of
collateral estoppel bars the Milligans’ claims. Like res judicata, collateral estoppel requires that
the two suits involve the same parties. Dickerson v. Godfrey, 825 S.W.2d 692, 695 (Tenn.
1992); Shelley v. Gipson, 218 Tenn. at 13, 400 S.W.2d at 714.

         We might not necessarily reach the same conclusion were we considering the res judicata
effect of the George v. Campbell case on the Campbell v. George litigation. The earlier
judgment, even though inconclusive, may very well be a decision “on the merits.” See Tenn. R.
Civ. P. 41.02(3); Olsen v. Muskegon Piston Ring Co., 117 F.2d 163, 165 (6th Cir. 1941); Parks
v. Clift, 77 Tenn. 529, 531-32 (1882) (holding that a judgment is on the merits if the issues could
have been disposed of had the parties properly presented and managed their respective cases).
However, the doctrine of res judicata applies only to the facts in existence at the time the earlier
judgment was rendered. It does not prevent the re-examination of the same question between
the same parties when, in the interval, the facts have changed or new facts have occurred that
may alter the litigants’ legal rights and relations. White v. White, 876 S.W.2d at 839-40; Banks
v. Banks, 18 Tenn. App. 347, 350, 77 S.W.2d 74, 76 (1934). A decision in Milligan v. George
may provide the basis for re-examining the boundary line issues between the Campbells and the
Georges.


                                                -8-
                                   WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________
HENRY F. TODD, P.J., M.S.


________________________________
BEN H. CANTRELL, JUDGE
