                                                                                        03/13/2018

               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                              February 21, 2018 Session

                   VALENEN COLLINS v. SAMS EAST INC.

                  Appeal from the Circuit Court for Shelby County
                    No. CT-003667-16 Rhynette N. Hurd, Judge
                     ___________________________________

                           No. W2017-00711-COA-R3-CV
                       ___________________________________


Appellant appeals the dismissal of this action on the ground of res judicata. We hold that
an essential element of res judicata—that the underlying judgment was rendered by a
court of competent jurisdiction—is not met in this case. Here, the court that rendered the
judgment relied upon lacked subject matter jurisdiction due to the doctrine of prior suit
pending. The trial court’s judgment of dismissal is therefore reversed.


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

J. STEVEN STAFFORD, P. J.,W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, P.J., M.S., and BRANDON O. GIBSON, J., joined.

John R. Johnson, Memphis, Tennessee, for the appellant, Valenen Collins.

Russell E. Reviere and W. Christopher Frulla, Memphis, Tennessee, for the appellee,
Sams East, Inc.


                                       OPINION

                                     BACKGROUND
       This appeal requires consideration of two separate actions, both of which were
originally filed in Shelby County General Sessions Court. The first action was filed on
November 20, 2013 (“First Case”), alleging that Plaintiff/Appellant Valenen Collins
(“Appellant”) was injured at the premises owned by Defendant/Appellee Sams East, Inc.
(“Appellee”). The First Case was set for trial on January 13, 2014, but a judgment of
dismissal without prejudice was entered the same day when Appellant did not appear.
Appellant thereafter retained counsel, who filed a motion to set aside the dismissal of the
First Case on January 23, 2014. Appellee responded in opposition to the motion, but the
motion was not immediately adjudicated by the general sessions court.
        On February 18, 2015, Appellant filed a second civil warrant in the Shelby County
General Sessions Court alleging the same cause of action (“Second Case”). The Second
Case alleged that the First Case was dismissed by final order on February 19, 2014,
apparently due to an incorrect notation by the general sessions court clerk. Eventually, a
trial occurred in the Second Case, and the general sessions court rendered a verdict for
the defense.1 Appellant appealed the Second Case to the circuit court; the circuit court
entered an order on May 27, 2016, dismissing the Second Case based upon the expiration
of the statute of limitations. According to Appellant, after learning that the motion to set
aside in the First Case had yet to be adjudicated, Appellant filed a motion to alter or
amend the judgment in the Second Case, which was eventually denied by the circuit
court.2 No appeal was taken from the trial court’s ruling in the Second Case.
        Following the dismissal of the Second Case, Appellant returned to the First Case
and requested that the general sessions court rule on the motion to set aside. The motion
was eventually heard on August 24, 2016. On the same day, the general sessions court
denied the motion. The following day, Appellant filed an appeal of the First Case to the
circuit court. Appellee thereafter filed a motion to dismiss on the basis of res judicata,
arguing that the issues sought to be litigated in the First Case had been previously
decided by final order in the Second Case. Appellant responded that the trial court in the
Second Case lacked subject matter jurisdiction to decide the case because of prior suit
pending, thereby negating an essential element of the doctrine of res judicata.
        The trial court granted the motion to dismiss on the basis of res judicata. The trial
court specifically found that the doctrine of prior suit pending did not apply because the
First Case was final at the time the Second Case was filed because the motion to set aside
filed in the First Case did not affect the finality of the judgment or suspend its operation.
Appellant thereafter filed a timely appeal to this Court.



        1
          It does not appear that any proof was presented at the trial.
        2
          This motion and the order of denial are not included in the record on appeal, as neither was
attached to Appellee’s later motion to dismiss on the basis of res judicata. Nevertheless, both Appellee’s
motion to dismiss and Appellant’s brief state that a motion to alter or amend the circuit court’s ruling in
the Second Case was filed and denied. As such, the parties do not dispute that a final judgment was
rendered in the Second Case. See generally Jackson v. Smith, 387 S.W.3d 486, 493 (Tenn. 2012)
(holding that res judicata may be found in the absence of a properly supported petition where the parties
concede that a final judgment exists).


                                                    2
                                    ISSUES PRESENTED
       Appellant raises three issues on appeal, which are taken from her brief and slightly
restated:
       1.     Did the trial court err in granting Appellee’s motion to dismiss Appellant’s
       appeal from general sessions court based upon the principle of res judicata?
       2.     Did the trial court err in failing to recognize that the doctrine of prior
       suit pending bars the second suit between the parties?
       3.     Did the trial court err in finding that the motion to set aside dismissal
       did not operate to toll the time within which an appeal could be filed to
       circuit court, where Tennessee Code Annotated section 16-15-727
       specifically provides that the time for appeal is tolled during the pendency
       of the motion?
In response, Appellee asserts that Appellant’s challenge to the dismissal is waived and
that this appeal is frivolous.
                                         ANALYSIS
       This appeal concerns the trial court’s decision to dismiss Appellant’s case based
upon the doctrine of res judicata. “A trial court’s decision that a claim is barred by the
doctrine of res judicata or claim preclusion involves a question of law which will be
reviewed de novo on appeal without a presumption of correctness.” Jackson v. Smith,
387 S.W.3d 486, 491 (Tenn. 2012) (citing In re Estate of Boote, 198 S.W.3d 699, 719
(Tenn. Ct. App. 2005)). In order to determine whether res judicata is applicable in this
case, we must also consider the doctrine of prior suit pending. Like res judicata, the
applicability of the prior suit pending doctrine is a question of law that we review de
novo on the record, with no presumption of correctness regarding the trial court’s
judgment. Wiley v. Williams, No. E2005-02518-COA-R3-CV, 2006 WL 929264, at *4
(Tenn. Ct. App. Apr. 10, 2006) (citing Fidelity & Guaranty Life Ins. Co. v. Corley, No.
W2002-02633-COA-R9-CV, 2003 WL 23099685 at *3 (Tenn. Ct. App. Dec. 31, 2003)).
       Here, the trial court concluded that the First Case was barred by the final
resolution on the merits of the Second Case under the doctrine of res judicata. In order to
establish the defense of res judicata, the party asserting the defense must show:
       (1) that the underlying judgment was rendered by a court of competent
       jurisdiction, (2) that the same parties or their privies were involved in both
       suits, (3) that the same claim or cause of action was asserted in both suits,
       and (4) that the underlying judgment was final and on the merits.




                                              3
Jackson, 387 S.W.3d at 491 (citing Lien v. Couch, 993 S.W.2d 53, 56 (Tenn. Ct. App.
1998)). The parties do not dispute that the First Case and Second Case shared the same
parties and claims or that the judgment in the Second Case was final and on the merits.
See generally Hippe v. Miller & Martin, PLLC, No. M2014-01184-COA-R3-CV, 2015
WL 2257175, at *3 (Tenn. Ct. App. May 12, 2015), perm. app. denied (Tenn. Sept. 16,
2015) (holding that a dismissal on the ground of the expiration of the statute of
limitations was an adjudication on the merits). Rather, it appears that the only dispute in
this case regarding the applicability of the doctrine of res judicata concerns whether the
underlying judgment sought to have preclusive effect “was rendered by a court of
competent jurisdiction.” Jackson, 387 S.W.3d at 491. Black’s Law Dictionary defines
“competent jurisdiction” as “[a] court’s power to decide a case or issue a decree[.]”
Black’s Law Dictionary 927 (9th ed. 2009); see also Lien v. Couch, 993 S.W.2d 53, 56
(Tenn. Ct. App. 1998) (quoting Restatement (Second) of Judgments § 26(1)(c) cmt. c
(1982) (noting that the general rule against relitigation of a claim is inapplicable when
there were “formal barriers” that prevent adjudication of all the parties’ claims in the
court whose judgment is sought to bar subsequent litigation))
        As an initial matter, Appellee asserts that any argument that the doctrine of res
judicata is inapplicable is waived in this appeal where Appellant failed to properly brief
this issue. Tennessee courts have held that where a party raises an issue, but fails to argue
that issue in the body of its appellate brief, “fails to develop an argument in support of
[its] contention[,] or merely constructs a skeletal argument, the issue is waived.” Sneed
v. Bd. of Prof’l Responsibility of Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010).
We agree with Appellee that Appellant’s brief is not a model of clarity, nor does it
contain specific references to the res judicata elements in its argument section. We note,
however, that the clear import of Appellant’s brief is that the trial court erred in applying
the doctrine of res judicata where the court in the Second Case lacked subject matter
jurisdiction over the action due to the doctrine of prior suit pending.3 Appellant’s brief
contains appropriate citations to legal authority regarding prior suit pending and
references to the record on appeal in support of its argument. See generally Tenn. R. App.
P. 27(a) (outlining the requirements for appellant’s briefs). As such, Appellant’s
argument, while not well pleaded, is sufficiently cogent to allow appellate review, in light
of the fact that this case involves only a single legal issue and a single technical record, as
well as implicates issues of subject matter jurisdiction. See Johnson v. Hopkins, 432
S.W.3d 840, 844 (Tenn. 2013) (citing In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn.


        3
          For example, Appellant’s brief states: “[T]he previous ruling upon which [Appellee] relies to
support his contention of res judicata, was in fact made in a case which had erroneously been filed and as
to which there was a prior action pending. The Circuit Court lacked subject matter jurisdiction, and the
case should have been dismissed[.]” Although reply briefs are not substitutes for initial briefs, we also
note that Appellant clarifies his argument in his reply brief.


                                                    4
2012)) (“[S]ubject matter jurisdiction is a threshold inquiry, which may be raised at any
time in any court.”). We therefore proceed to address the merits of this appeal.
       As we perceive it, Appellant contends that res judicata is not applicable in this
case because the court presiding over the Second Case lacked subject matter jurisdiction
over the matter where a prior suit involving the same subject matter and parties was
pending in another court. Obviously, this argument implicates the doctrine of prior suit
pending. Prior suit pending involves four essential elements:
       1) the lawsuits must involve identical subject matter; 2) the lawsuits must
       be between the same parties; 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.
West v. Vought Aircraft Indus., Inc., 256 S.W.3d 618, 623 (Tenn. 2008) (footnote
omitted) (citing Cockburn v. Howard Johnson, Inc., 215 Tenn. 254, 385 S.W.2d 101
(Tenn. 1964)). “The doctrine of prior suit pending invokes whether a court has subject
matter jurisdiction to hear a suit.” Haggard v. Aguilar, No. 2009-02452-COA-R3-CV,
2010 WL 4962884, at *2 (Tenn. Ct. App. Dec. 7, 2010) (citing Taylor v. Transmission
Corp. of Am., Inc., No. E2003-02529-COA-R3-CV, 2004 WL 2853300, at *1 (Tenn. Ct.
App. Dec. 13, 2004). As we have previously explained
              When more than one court has been given jurisdiction to adjudicate
       a particular type of controversy, subject matter jurisdiction may also be
       influenced by matters of comity and judicial efficiency. Thus, when two
       courts have concurrent subject matter jurisdiction, the first court to acquire
       jurisdiction over a particular case takes exclusive jurisdiction to end the
       matter. See American Lava Corp. v. Savena, 476 S.W.2d 639, 640 (Tenn.
       1972); Robinson v. Easter, 208 Tenn. 147, 149, 344 S.W.2d 365, 366
       (1961); Wilson v. Grantham, 739 S.W.2d 776, 777 (Tenn. Ct. App. 1986).
       The actions of a court that attempts to exercise jurisdiction over a case after
       another court with concurrent jurisdiction has already exercised jurisdiction
       are nullities. See State v. Hazzard, 743 S.W.2d 938, 941 (Tenn. Crim. App.
       1987).
State ex rel. McPeek v. Long, No. E2005-01670-COA-R3-CV, 2006 WL 1163077, at
*1–2 (Tenn. Ct. App. Apr. 28, 2006) (quoting State ex rel. Whitehead v. Thompson, No.
01A01-9511-CH-00538, 1997 WL 749465, at *2 (Tenn. Ct. App. Dec. 5, 1997)). Thus, a
court that presides over a case where a prior suit is properly pending in another court
violates the doctrine of prior suit pending and lacks subject matter jurisdiction to
adjudicate the controversy. See Wiley, 2006 WL 929264, at *4 (quoting Corley, 2003 WL
23099685, at *3) (“Under the prior suit pending doctrine, ‘where two courts have
concurrent jurisdiction over a matter, the court first taking jurisdiction acquires exclusive

                                             5
jurisdiction over the matter, and the subsequent action must be dismissed.’”) (emphasis
added); Metro. Dev. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876,
878–79 (Tenn. Ct. App. 1982) (citing American Lava Corp. v. Savena, 476 S.W.2d 639,
640 (Tenn. 1972); Kizer v. Bellar, 192 Tenn. 540, 546, 241 S.W.2d 561, 563 (Tenn.
1951)) (holding that where a court acquires jurisdiction over a matter, “no court of
coordinate authority is at liberty to interfere with its action” and “only the first suit can be
allowed to stand”); see also Paul J. Krog, One Bite at A Time Analyzing the Prior-Suit-
Pending Doctrine in Tennessee, Tenn. B.J., June 2012, 14, 18 [hereinafter One Bite at a
Time] (“Tennessee courts have come to treat prior suit pending as a jurisdictional
doctrine.”) (footnote omitted).
        Appellee argues, however, that Appellant cannot now contest the “correctness” of
the judgment in the Second Case because that case was not appealed and it was
Appellant’s decision to file the Second Case. In our view, Appellee misapprehends the
issue on appeal. Here, Appellant is not contesting the dismissal of the Second Case on the
basis of prior suit pending or any other ground. Rather, Appellant is merely challenging
the application of the doctrine of res judicata in the First Case on the basis that one
essential element—that the underlying judgment was rendered by a court of competent
jurisdiction—is not met. We agree with Appellee that the Second Case is final, and we
will not disturb the dismissal of that case. C.f. Goeke v. Woods, 777 S.W.2d 347, 350
(Tenn. 1989) (“A judgment dismissing a suit for lack of jurisdiction does not preclude a
party from litigating the same cause of action in a court of competent jurisdiction; it does
preclude the relitigation of the issue of whether the first tribunal had jurisdiction.”).
Rather, this appeal involves only the trial court’s decision to dismiss the First Case on the
basis of res judicata, an issue that is properly reviewable in this appeal. Moreover, the
fact that Appellant made the decision to file the Second Case does not alter our analysis.
Rather, it is well-settled that subject matter jurisdiction cannot be conferred upon a
tribunal by any action of the parties, including waiver or consent. Shelby Cty. v. City of
Memphis, 211 Tenn. 410, 413, 365 S.W.2d 291, 292 (Tenn. 1963) (quoting Petition of S.
Lumber & Mfg. Co., 141 Tenn. 325, 210 S.W. 639, 640 (Tenn. 1919) (“It is well settled
that, when the court has no jurisdiction of the subject-matter, it cannot be conferred either
by waiver or consent, and all of its orders and decrees are a nullity, and may be
collaterally attacked.”)); but see Cannon ex rel. Good v. Reddy, 428 S.W.3d 795, 798
(Tenn. 2014) (citing Walker v. Vandiver, 181 S.W. 310, 311, 133 Tenn. 423 (Tenn.
1915)) (holding that a dismissal of a prior suit before the trial of a subsequent suit
eliminates the defense of prior suit pending). 4 Thus, Appellant is not attacking the
intrinsic “correctness” of the judgment in the Second Case, but whether the court in the
Second Case possessed competent subject matter jurisdiction for purposes of satisfying
the necessary elements of res judicata. See Henson v. Henson, No. 23, 1989 WL 75960,
       4
         As is evident by the fact that this appeal is ongoing, the First Case was not voluntarily
dismissed.


                                                6
at *2 (Tenn. Ct. App. July 11, 1989) (noting a difference between an attack on a court’s
subject matter jurisdiction and an attack as to the correctness of a trial court’s decision).5
        Turning to the prior suit pending factors, again, there appears to be no dispute in
this case that the First Case and the Second Case involve the same parties and subject
matter or that the court in the First Case had both personal jurisdiction and subject matter
jurisdiction. Rather, the dispute in this case concerns whether the First Case was
“pending” at the time of the filing of the second case. This Court has previously defined
the term “pending” as “‘[b]egun, but not yet completed’ and ‘awaiting an occurrence of
conclusion of an action, period of continuance or indeterminancy.’” Malmquist v.
Malmquist, 415 S.W.3d 826, 837 (Tenn. Ct. App. 2011) (quoting Black’s Law
Dictionary 1021 (5th ed. 1979)) (involving ex parte communications). To determine
whether the First Case was pending at the time of the proceedings in the Second Case so
as to implicate the doctrine of prior suit pending, we must examine the procedural history
of the two cases, particularly the First Case.
        Here, the First Case was initiated on November 20, 2013, with a judgment of
dismissal in favor of Appellee entered on January 13, 2014. Within ten days from the
judgment, on January 23, 2014, Appellant filed a motion seeking to set aside the
dismissal. At the time that the Second Case was filed and, in our view, throughout all of
the proceedings in the Second Case up to its final judgment in circuit court,6 the motion
filed in the First Case had not yet been adjudicated by the general sessions court.7
       Motions seeking to set aside or alter general sessions courts’ judgments are
specifically authorized by statute. According to Tennessee Code Annotated section 16-
15-727(b),



        5
           The alleged lack of jurisdiction by the court in the Second Case also distinguishes this case from
Smith Mechanical Contractors, Inc. v. Premier Hotel Development Group, 210 S.W.3d 557 (Tenn. Ct.
App. 2006), in which we held that a mistake as to the filing of a lawsuit was not sufficient to avoid the
effect of res judicata. The Court in Smith expressly noted that there was no dispute “that the [t]rial [c]ourt
in the second lawsuit had subject matter jurisdiction[.]” Id. at 567. The same is simply not true in this
case.
         6
           As noted above, the circuit court’s order denying Appellant’s motion to alter or amend in the
Second Case is not included in the record. Neither party asserts that this order was entered following the
adjudication of the motion to set aside filed in the First Case. Regardless, as discussed in more detail
above, because a notice of appeal was timely filed following the denial of the general sessions motion to
set aside in the First Case, the First Case remained “pending” even following the adjudication of this
motion.
         7
           Although there was some notation in the general sessions court’s docket that the case had been
dismissed in February 2014, the parties now agree that this motion was not adjudicated until August 24,
2016, well after the institution of the Second Case.


                                                      7
       Tenn. R. Civ. P. 60.02, regarding mistakes, inadvertence, excusable
       neglect, fraud and other similar reasons set out in that rule, shall apply to all
       courts of general sessions. A motion under the general sessions court’s
       authority under Tenn. R. Civ. P. 60.02 shall be filed within ten (10) days of
       the date of judgment. Once filed, the motion shall toll the ten-day period for
       seeking de novo review in the circuit court until the determination of the
       motion is concluded. Thereafter, an appeal for de novo review in the circuit
       court shall be filed within ten (10) days of the general sessions court’s
       ruling on the motion to relieve a party or the parties’ legal representative
       from a final judgment, order or proceeding in the same manner as provided
       in Tenn. R. Civ. P. 60.02.
As we recently explained, section 16-15-727 therefore provides that
       [A] party dissatisfied with the judgment of the general sessions court may
       seek to set aside that judgment by the timely filing of a motion under
       section 16-15-727(b). When such a motion is timely filed, the time for
       perfecting a de novo appeal to the circuit court is tolled until such time as
       the motion to set aside is adjudicated.
Wells Fargo Bank, N.A. v. Dorris, No. W2017-00617-COA-R3-CV, 2017 WL 6623621,
at *3 (Tenn. Ct. App. Dec. 28, 2017).
       There can be no dispute that Appellant’s motion to set aside the judgment in the
First Case was timely and therefore pursuant to the plain language of section 16-15-
727(b), the time for perfecting an appeal was tolled. See generally Tenn. Code Ann. § 1-
3-102 (governing computation of time); State v. Smith, 278 S.W.3d 325, 330 (Tenn.
Crim. App. 2008) (applying section 1-3-102 to general sessions court). The trial court
concluded, however, that the First Case was “final” and that the section 16-15-727(b)
motion “did not affect the finality of the judgment nor did it suspend its operation[.]”
Respectfully, we cannot agree.
       Generally, a judgment is final when it resolves all the claims between all the
parties, “leaving nothing else for the trial court to do.” State ex rel. McAllister v. Goode,
968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). The filing of the section 16-15-727(b)
motion in the First Case clearly meant that the general sessions court was required to act
to adjudicate the motion. Appellee argues, however, that section 16-15-727(b) motions
should be treated similarly to motions under Rule 60.02 of the Tennessee Rules of Civil
Procedure. We agree that section 16-15-727(b) motions expressly reference Rule 60.02.
See Tenn. Code Ann. § 16-15-727(b) (“Tenn. R. Civ. P. 60.02, regarding mistakes,
inadvertence, excusable neglect, fraud and other similar reasons set out in that rule, shall
apply to all courts of general sessions.”). Additionally, it is true that the filing of a Rule
60.02 motion does not affect the finality of the underlying action. See Tenn. R. Civ. P.
60.02 (noting that generally “[a] motion under this Rule 60.02 does not affect the finality

                                              8
of a judgment or suspend its operation”). This Court has previously held, however, that
the proper interpretation of section 16-15-727(b) should be governed by the statutes
applicable in the general sessions court, rather than by rules applicable to Rule 60.02
motions, given the differing procedure applicable to each motion. See Dorris, 2017 WL
6623621, at *4 (noting that unlike Rule 60.02, section 16-15-727(b) motions must be
filed within ten days of the judgment and expressly toll the time for taking an appeal;
concluding that Rule 60.02’s procedure is not necessarily applicable to section 16-15-
727(b) motions).
        Rather than look to rules applicable to Rule 60.02 motions, we therefore must
resolve this issue by examining the statutes specifically governing appeals from general
sessions courts. See Griffin v. Campbell Clinic, P.A., 439 S.W.3d 899, 902 (Tenn. 2014
(noting that general sessions courts’ appeals are governed by statute). Tennessee Code
Annotated section 27-5-108 provides a ten-day time period for taking an appeal from a
general sessions court’s judgment. Tenn. Code Ann. § 27-5-108(a). The statute further
provides that “[i]f no appeal is taken within the time provided, then execution may issue.”
Tenn. Code Ann. § 27-5-108(d). Based upon this language, the Tennessee Supreme Court
has held that the general sessions court’s judgment becomes final after the time for
appeal has expired: “If the appeal is not perfected within the ten-day period, the general
sessions courts judgment becomes final and execution may issue.” Griffin, 439 S.W.3d at
902 (citing Tenn. Code Ann. § 27-5-108(d)). This ruling is consistent with other
Tennessee law that holds that judgments are not final while an appeal is pending. See
Creech v. Addington, 281 S.W.3d 363, 377–78 (Tenn. 2009) (noting that Tennessee and
a minority of jurisdictions follow the rule that a judgment is not final and res judicata
cannot apply while an appeal of the other case is pending). Thus, the judgment does not
become final immediately at the time it was rendered, but only following the expiration
of the time provided for an appeal.
        Here, the language of section 16-15-727(b) is more than clear that the time for
filing an appeal will not expire until ten days following the adjudication of any timely
filed motion to set aside the judgment. See Tenn. Code Ann. § 16-15-727(b) (“toll[ing]
the ten-day period for seeking de novo review in the circuit court until the determination
of the motion is concluded” and providing ten days from the adjudication of the judgment
to file a notice of appeal). Thus, the general session court’s judgment does not become
final until ten days following the adjudication of any pending section 16-15-727(b)
motion, if no appeal is filed. In the case-at-bar, at the time of the institution of the Second
Case and throughout those proceedings, the time for filing an appeal of the First Case had
simply not expired. As such, the trial court’s conclusion that the general sessions court’s
judgment in the First Case was “final” notwithstanding the pending section 16-15-727(b)
motion was in error.
      The current procedural posture of this case highlights the correctness of this
holding. Here, a timely appeal was in fact taken from the general sessions court’s

                                              9
judgment in the First Case. As such, the First Case is plainly still “pending” on secondary
appellate review at this time. See Comcast of S. v. Elec. Power Bd. of Chattanooga, No.
E2008-01788-COA-R3-CV, 2009 WL 1328336, at *6 (Tenn. Ct. App. May 13, 2009)
(citing Creech, 281 S.W.3d 363, 377–78) (holding that a lawsuit is “still ‘pending’ until
the appeal is resolved”).8
       Because the First Case was “pending” at the time of the institution and throughout
the proceedings in the Second Case, the doctrine of prior suit pending is applicable. See
West, 256 S.W.3d at 623 (outlining the prior suit pending elements, discussed supra). As
previously discussed, where applicable, the doctrine of prior suit pending deprives the
court presiding over the second-filed action of subject matter jurisdiction. See Wiley,
2006 WL 929264, at *4 (holding that the second court lacks subject matter jurisdiction
where the same claim against the same parties was previously pending in another court);
Brown Stove Works, 637 S.W.2d at 878–79 (holding that the second court cannot
interfere when jurisdiction has attached to a claim by an earlier court). Consequently, the
court in the Second Case lacked subject matter jurisdiction over the matter where
jurisdiction has previously attached to the court in the First Case. See Wilson v. Schwind,
260 S.W.3d 454 (Tenn. Ct. App. 2007) (holding that prior suit pending was applicable
even where the two cases were filed in the same court); see also One Bite at a Time, at 18
(noting that cases may be filed in the same court as “each county or district’s Circuit or
Chancery Court is no more a ‘separate court’ than are the divisions of one county’s”).
       Returning to the issue of res judicata, it is clear that the first essential element—
that the judgment be rendered by a court of competent jurisdiction—is not met in this
case. See Jackson, 387 S.W.3d at 491. Here, the doctrine of prior suit pending deprived
the court in the Second Case of its power to act on this issue; the action of the court in the
Second Case was, simply put, a “nullit[y].” Long, 2006 WL 1163077; c.f. 49 C.J.S.,
Judgments, § 421, Jurisdictional Defects p. 824–25 (noting that a court lacks jurisdiction
where it “violates a provision which prohibits it from doing a particular act or taking
jurisdiction over particular matters”). Accordingly, the court presiding over the Second
Case cannot constitute a court of competent jurisdiction for purposes of the doctrine of
res judicata. See Black’s Law Dictionary 927 (9th ed. 2009) (defining “competent
jurisdiction” as having power to decide a case). The trial court’s decision to dismiss the
First Case on the basis of res judicata was therefore in error. See 50 C.J.S. Judgments §
932 (“The doctrine of res judicata cannot be invoked unless all its essential elements are
present, and each necessary element must be established beyond all question.”) (footnotes
omitted).



       8
          There is no dispute in this case that Appellant filed timely appeals from both the general
sessions court and the circuit court.


                                                10
       Finally, Appellee seeks an award of attorney’s fees for the defense of a frivolous
appeal pursuant to Tennessee Code Annotated section 27-1-122. Because we have ruled
in favor of Appellant, this appeal was not frivolous. Accordingly, Appellee’s request is
denied.
                                         CONCLUSION
       The judgment of the Circuit Court of Shelby County is reversed and this cause is
remanded to the trial court for further proceedings consistent with this Opinion. Costs of
this appeal are assessed to Appellee, Sams East, Inc., for which execution may issue if
necessary.




                                                _________________________________
                                                J. STEVEN STAFFORD, JUDGE




                                           11
