             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                           FILED
                                                           January 14, 1999
RAYMOND O. HAMPTON,                       )
                                          )               Cecil W. Crowson
       Plaintiff/Appellant,               )              Appellate Court Clerk
                                          )   Appeal No.
                                          )   01-A-01-9712-CH-00721
VS.                                       )
                                          )   Davidson Chancery
                                          )   No. 97-2692-I
TENNESSEE TRUCK SALES, INC.               )
and DONALD A. TOMLINSON,                  )
                                          )
       Defendants/Appellees.              )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

          THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




G. KLINE PRESTON, IV
Washington Square Two
222 Second Avenue North
Suite 416
Nashville, Tennessee 37201
       Attorney for Plaintiff/Appellant

GERALD C. WIGGER
W. CARL SPINING
200 Fourth Avenue, North
Third Floor
P. O. Box 198985
Nashville, Tennessee 37219-8985
       Attorneys for Defendants/Appellees



                              REVERSED AND REMANDED



                                                   BEN H. CANTRELL,
                                                   PRESIDING JUDGE, M.S.



CONCUR:
KOCH, J.
CAIN, J.
                                 OPINION
             The Chancery Court of Davidson County dismissed the plaintiff’s

bailment action on the ground of res judicata and prior suit pending. We reverse

because the record does not include evidence from which we can conclude that the

issues in the case had been decided or were pending in the prior case.



                                         I.



             As it stood on the date the chancellor dismissed it, this action was for

a breach of a bailment contract against Tennessee Truck Sales, Inc. and its owner,

Donald A. Tomlinson. The complaint alleged that the plaintiff bought a truck from

Tennessee Truck Sales, Inc. and took it back for some necessary repairs. In a

dispute over the responsibility for the repairs, the defendants asserted a common law

lien and retained possession of the truck. The plaintiff then sued the defendant

Tennessee Truck Sales, Inc. and two parts suppliers for breach of warranty. The

complaint goes on to allege:

                    14.   Plaintiff avers that on the 12th day of
             September, 1996, the Court entered an Agreed Order, the
             terms of which included his dismissal with prejudice of his
             claims, in an action filed in the Chancery Court of
             Davidson County, Tennessee, at Nashville, Case No. 96-
             132-II, which was filed on April 26, 1996, and the
             Defendants Seal Power Corporation and Federal Mogul
             Engine Products were to pay to Tennessee Truck Sales,
             Inc. the sum of four thousand eight hundred dollars
             ($4,800.00) as payment in full for the indebtedness owed
             to Tennessee Truck Sales by the Plaintiff, and that
             Tennessee Truck Sales would return Plaintiff’s truck to
             him in good working condition.

                    ...

                    21.      Plaintiff avers that while the Defendants,
             Tennessee Truck Sales and Tomlinson, held his truck
             pursuant to a common law mechanics lien, that they did
             not care for its condition, and allowed it to be damaged by
             the weather and other events and elements, while they
             held it to Plaintiff’s exclusion based on a fraudulent
             mechanics lien.

                    ...

                   30.   The Plaintiff avers that the Defendant’s
             possession of his truck was a bailment and that the

                                        -2-
              Defendants were responsible for the truck while in their
              possession.

                      31.    The Plaintiff avers that the Defendants
              intentionally breached their duty to protect the Plaintiff’s
              property which resulted in damages to the truck.

                      32.   The Plaintiff avers that the damages to the
              truck were a direct and proximate result of the defendants’
              intentional breach of their duty as bailees.



              The defendants filed a motion to dismiss on the grounds of res judicata

and former suit pending. The motion included allegations that the order in the former

case dismissed the plaintiff’s claims against Tennessee Truck Sales, Inc. with

prejudice; that on May 2, 1996 the plaintiff moved under Rule 60.02, Tenn. R. Civ.

Proc., to set aside the agreed order in the former case; that the trial court had denied

the motion and that the plaintiff had appealed the denial to the Court of Appeals. The

motion then concluded with these two specific allegations:

                     9.      The Plaintiff alleges in this action the same
              matters set forth in the previous action, with the addition
              of fraud, violation of the Tennessee Consumer Protection
              Act, and breach of bailment, all of which causes of action
              arose out of the same transaction as originally sued upon
              by the Plaintiff;

                      10.    The instant action and the previous action
              involve the same parties, with the exception that certain
              defendants involved in the previous action are not sued in
              this action and that the Plaintiff added Donald Tomlinson,
              individually, to this action.


              The record in this case does not contain any evidence. The facts

alleged in the motion to dismiss are merely that, allegations. But we do have a copy

of the Court of Appeals opinion in the former case, which helps to complete the

picture. The opinion recites these facts:

                    Appellant filed a complaint on April 26, 1996
              against appellee, along with Sealed Power Corporation
              and Federal Mogul Engine Products [footnote] for breach
              of express and implied warranties. The complaint was
              dismissed by the entry of an agreed order on September
              12, 1996 in which Sealed Power and Federal Mogul
              agreed to pay $2,400.00 each to Tennessee Truck Sales,
              and Tennessee Truck Sales agreed to accept that sum as


                                         -3-
              payment in full of the repair bill and to return his truck to
              him “in good working condition.”

                     Appellant took possession of the repaired truck
              from Tennessee Truck Sales in September 1996. Seven
              months later he filed this Rule 60.02 motion to set aside
              the agreed order, alleging material misrepresentation in
              the inducement to dismiss his complaint. He complained
              that when the truck was returned to him it was not in good
              working condition and had over $7,000.00 in body
              damages caused while in the exclusive possession and
              control of appellee.
              __________
                      [Footnote] Sealed Power and Federal Mogul provided the
              repair parts.


See Hampton v. Tennessee Truck Sales, Inc., No. 01A01-9707-CV-00046 at *1

(Tenn. Ct. App. April 29, 1998). The Court of Appeals affirmed the trial court’s refusal

to set aside the former judgment. One of the bases for the opinion was expressed in

these three paragraphs:

                     We agree with the trial court that appellant was
              guilty of laches. This equitable defense involves an
              inexcusably long delay coupled with injury to the rights of
              another resulting from the delay. (Citations omitted.)

                     The appellant admits that he took possession of his
              truck in September 1996, but says the truck was not
              returned in good working condition and that

                     “It had five or six serious oil leaks, the
                     engine was sucking air, one of the heads
                     was seeping, it sounded like it had several
                     cracked injectors, the batteries needed
                     replacing along with flat tires, and [it had]
                     over $7,000.00 in body damages caused
                     while in the exclusive possession and
                     control of [appellee].”

                      Although the problems with the truck were such
              that he should have noticed them immediately upon
              taking possession [footnote] the plaintiff waited seven
              months to file a motion to set aside the agreed order.
              After that length of time, the appellant cannot reasonably
              be expected to prove the condition of the truck when it
              was delivered to appellant. These circumstances justify
              the application of the doctrine of laches.
              __________
                     [Footnote] If nothing else, $7,500.00 in body dama ge would
              have been readily apparent.


Id. at *1 and *2.




                                            -4-
                                           II.

                                    Res Judicata



             The courts draw a distinction between res judicata and collateral

estoppel:

                     The doctrine of res judicata bars a second suit
             between the same parties or their privies on the same
             cause of action with respect to all issues which were or
             could have been litigated in the former suit. Collateral
             estoppel operates to bar a second suit between the same
             parties and their privies on a different cause of action only
             as to issues which were actually litigated and determined
             in the former suit.

Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989). As this description indicates,

collateral estoppel is an issue preclusion doctrine, and that is what the defendants

assert in this case. In Beaty v. McGraw, No. 01A01-9701-CV-00046 at *6 (Tenn. Ct.

App. Dec. 10, 1998), Judge Koch surveyed the Tennessee decisions and distilled the

following requirements for the collateral estoppel doctrine:

              1.     that the issue sought to be precluded is
                     identical to the issue decided in the earlier
                     suit;

              2.     that the issue sought to be precluded was
                     actually litigated and decided on its merits in
                     the earlier suit;

              3.     that the judgment in the earlier suit has
                     become final;

              4.     that the party against whom collateral
                     estoppel is asserted was a party or is in
                     privity with a party to the earlier suit; and

              5.     that the party against whom collateral estoppel is
                     asserted had a full and fair opportunity in the
              issue now sought to litigate the
                     earlier suit to be precluded.
                     (Footnotes omitted.)



              The issue to be litigated in this case was the defendants’ liability for a

breach of the bailment contract. From the record in this case we cannot conclude that

that issue was litigated in the former case. In fact we don’t think it could have been



                                          -5-
litigated in that action because the truck was not delivered to the plaintiff until the

former suit had been settled. Therefore the breach did not occur until after the agreed

judgment was entered in that case.



              It is true that in his Rule 60.02 motion in the former case the plaintiff

alleged that the judgment should be set aside so that he could make a claim for the

damages to the truck inflicted while the truck was in the exclusive possession and

control of the appellee. The Court of Appeals held in part that the Rule 60.02 relief

was barred by the doctrine of laches. But that decision was not on the merits of the

bailment claims. See Goeke v. Woods, 777 S.W.2d 347 (Tenn. 1989). While the

defendants may ultimately prevail on the laches defense, it has not been raised on the

merits of the bailment claim.



                                          III.

                                Former Suit Pending



              In Cockburn v. Howard Johnson, Inc., 385 S.W.2d 101 (Tenn. 1964), the

Court recited the requirements for a successful plea based on a former suit pending:

              [T]he two suits must involve the identical subject matter
              and be between the same parties and the former suit
              must be pending in a court in this state having jurisdiction
              of the subject matter and the parties.

385 S.W.2d at 102.



              This court recently held that the defense was still viable in Tennessee.

See Davich v. State Farm, No. 01A01-9303-CV-00119 (Tenn. Ct. App. August 18,

1993).



              Again, the record in this case is simply not complete enough to allow us

to conclude that the same issues were involved in the former suit. And we think the



                                         -6-
record refutes a conclusion that the same issue was pending in an appeal of the

former case. That appeal only involved the propriety of the trial judge’s ruling on the

Rule 60.02 motion. It did not involve an appeal of the merits of a bailment claim.



              The judgment of the lower court is reversed and the cause is remanded

to the Chancery Court of Davidson County for further proceedings. Tax the costs on

appeal to the appellee.




                                                 ____________________________
                                                 BEN H. CANTRELL,
                                                 PRESIDING JUDGE, M.S.

CONCUR:



_____________________________
WILLIAM C. KOCH, JR., JUDGE



_____________________________
WILLIAM B. CAIN, JUDGE
