                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

BILLY GWIN MITCHELL,               Shelby Chancery No. 97623-2 R.D.
                                         C.A. No. 02A01-9503-CH-00060
Plaintiff/Counter-Defendant/Appellee,
V.                                       Hon. Russell Fowler, Special Chancellor


SAM F. COLE, JR., Substitute
                                                                      FILED
Trustee, ESTATE OF PRUDENCE                                             August 8, 1996
REYNOLDS, and GERALD W.
PICKENS, Administrator CTA,                                           Cecil Crowson, Jr.
                                                                      Appellate C ourt Clerk
Defendants/Counter-Plaintiffs/Appellants.

JAMES STEPHEN KING and ARTHUR E. QUINN, Bogatin, Lawson & Chiapella,
Memphis, Attorneys for Plaintiff/Counter-Defendant/Appellee.

SAM F. COLE, JR., Memphis, Attorney for Defendants/Counter-Plaintiffs/ Appellants.

REVERSED AND REMANDED

Opinion filed:
______________________________________________________________________________

TOMLIN, Sr. J.

      The original plaintiff in this case, Billy Gwin Mitchell (“plaintiff” or “Mitchell”)

filed suit in the Chancery Court of Shelby County seeking to enjoin the foreclosure

of a deed of trust. Named as defendants were Sam F. Cole, Jr., Substitute Trustee

of the Estate of Prudence Reynolds, and Gerald W. Pickens, Administrator CTA

(“defendants” or by name). Defendants filed an answer and a counter-complaint

in which they contended, among other things, that the records of Mitchell’s

Chapter 11 bankruptcy case reflected Mitchell’s confirmed amended plan of

reorganization mandated that Mitchell pay the mortgage indebtedness to Ms.

Reynolds in accordance with the terms of the promissory note. As counter-plaintiffs,

Cole and Pickens sought a money judgment for the principal balance due and

owing on the note, plus accrued interest and attorney’s fees and costs. At the

conclusion of all the proof, the case was submitted to a jury, and after issues of fact

had been resolved, the special chancellor entered a judgment in favor of the

Reynolds estate in the amount of $41,101.64 on the promissory note and attorney’s


                                           1
fees in the amount of $21,900.00.

      Defendants filed a motion for a new trial alleging five errors. The special

chancellor denied the motion for a new trial and entered a final decree. This

appeal followed.



      Defendants have submitted six issues to this court for our consideration.

Counter-plaintiffs contend that the special chancellor erred: (1) in charging the jury

that a payment by a third party to a creditor on behalf of the debtor was a

payment toward the debt; (2) in allowing witness Don Kelly to testify as an expert

witness when his qualifications as such were never established at trial; (3) in allowing

plaintiff to introduce an automobile insurance policy of a family partnership to be

considered as evidence of payment or credit towards the mortgage indebtedness;

(4) in allowing witness Mary Mitchell to testify as to alleged payments and other

credits on the mortgage debt made by nonparties; (5) in allowing plaintiff to testify

in violation of the court’s order in limine; (6) in failing to grant defendants a new

trial. We are of the opinion that the special chancellor did err, and that a new trial

is mandated by this record.


      In 1973, following the death of her brother, Ham Mitchell, a prominent land

owner in Millington, Prudence Reynolds (“decedent”) sold her 142 acre farm to

plaintiff, her nephew. In conjunction with the sale, plaintiff executed a promissory

note in the principal amount of $134,140.71, payable to decedent. The note was

secured by a first deed of trust on the property. The note called for payment to

decedent in monthly installments of $1,040.00 for a period of 20 (twenty) years,

along with interest at the rate of seven (7%) percent per year. The deed of trust

was duly recorded in the Register’s Office in Shelby County.


      Following the death of his father, plaintiff and his two sisters, all beneficiaries

of their father’s estate, formed a partnership entitled “BAM Partnership.”

Subsequently, due to the partners’ difficulty in paying inheritance taxes on their

                                           2
father’s estate, both plaintiff and the partnership filed for bankruptcy under

Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the

Western District of Tennessee in Memphis.


      Plaintiff filed an amended plan of reorganization in his Chapter 11 case in

1984. With respect to the payment of the debt to decedent, the amended plan

made the following provision:


      The secured claim of Mrs. J.P. Reynolds (“Reynolds”) shall be fully
      settled, satisfied, and discharged by paying to Reynolds the remaining
      sums due in accordance with the terms of her Promissory Note and
      Deed of Trust; except that, the terms of said Note shall be extended by
      a period equal to the number of months that said Note is in arrears.
      The first installment shall be due and payable upon confirmation with
      a similar payment being due and payable each month thereafter until
      said Note shall have been paid in full. Reynolds shall retain her lien
      upon the Debtor’s 144 acre farm.
      (emphasis added)


Shortly thereafter, the bankruptcy court entered an order confirming plaintiff’s

amended plan of reorganization. During the period from April 1985 to March 1988,

plaintiff wrote 16 checks totaling $26,548.57 to decedent in payment of this note.

In addition, plaintiff sold 8.97 acres of the farm during this time, from which he paid

decedent $804.68 of the proceeds.


      In January 1988 plaintiff filed an interim report in his Chapter 11 case. In the

section entitled “Total Amount of Claims Allowed,” plaintiff’s report reflected that

the principal amount of the debt owed to decedent at that time was $102,902.28.

This amount was listed as payment number 92 of a total of 240 on the mortgage

loan amortization schedule. In his final report filed in November 1988, plaintiff set

forth the same amount as the amount of the debt at that time. In January 1989, the

bankruptcy court entered a final order closing plaintiff’s Chapter 11 case.


      Prudence Reynolds died in June 1988. Although named executor on her will,

plaintiff declined to serve. Gerald W. Pickens was appointed executor. Some time

later, plaintiff and Pickens met to discuss plaintiffs’ obligations under the note. After

                                           3
the parties were unable to agree upon the amount owed, Cole, as substitute

trustee under the deed of trust, wrote plaintiff advising him that the entire balance

of the principal and interest on the note was then due and payable. As of that

time, the calculated principal and accrued interest on the note was $113,832.70,

plus attorney’s fees in the amount of $17,074.80. Plaintiff was advised that if the

above amount was not paid by August 1, 1989, Cole would begin foreclosure.


      On August 24, 1989, plaintiff filed a petition for a temporary restraining order

and for a temporary and permanent injunction seeking to prohibit defendants from

proceeding with the foreclosure. Plaintiff contended that as a result of an oral

agreement he had made with decedent, the value of goods and services

rendered to decedent by the BAM partnership, as well as cash payments made by

the partnership to the decedent, were to be credited against the note. In that

regard, plaintiff alleged that decedent had credited him with over 160 payments

on the note prior to her death, which reduced the balance due to $66,330.18, and

that he was entitled to have the correct balance of the note ascertained before

a foreclosure sale could proceed. Shortly thereafter, a consent order on the

temporary injunction was entered, enjoining defendants from foreclosing.

Defendants then filed an answer as well as a counter-complaint.


      In the counter-complaint, defendants alleged that plaintiff owed a balance

on the note of $102,092.28, the stated principal loan balance that appeared in

plaintiff’s bankruptcy proceeding in both his interim report and the final report. In

plaintiff’s answer to the counter-complaint, he alleged that the amount of the

balance due on the note was not as stated above, but that the amount due as

alleged by defendants in their counter-complaint was included in error in his

bankruptcy proceedings.


      Prior to trial, the trial court granted defendants’ motion in limine prohibiting

plaintiff from presenting any evidence at trial concerning any oral statements


                                          4
made by decedent prior to her death in regard to the note and deed of trust.1 In

addition, prior to trial the chancellor ordered that of the proposed factual issues

presented by each party to be ultimately submitted to the jury, the chancellor

ordered that plaintiff’s issue of fact number 8 and defendants’ issues of fact

numbers 5, 7 and 8 be submitted at trial to the jury.


      At trial, plaintiff testified that he and the decedent, his aunt, had a very close

relationship and that her motivation in selling him the farm was to provide her with

a continuous stream of income for the rest of her life. Although the court’s order in

limine prohibited plaintiff from testifying as to any oral statements made by his aunt

concerning the note and trust deed prior to her death, over the repeated

objections of defendants’ counsel, plaintiff was allowed to testify concerning the

various goods and services that the BAM partnership provided the decedent during

her lifetime. Again over the same objections, plaintiff was permitted to testify that

his bookkeeper kept records not only of cash payments made to decedent, but

also would make notations on the amortization schedule of the note of the cash

value of the goods and services provided to decedent from time to time through

the BAM Partnership.


      Following the overruled objections by defendants’ counsel, plaintiff was

permitted to testify that he provided wages and lodging for the grounds keeper of

decedent at a cost of $250.00 per week for some eight years, totaling almost

$40,000.00. Plaintiff also testified that through BAM he provided decedent with



      1
       This case was upon the docket of four different chancellors by the time it
      came up for trial. It was originally assigned to the Honorable George T.
      Lewis, Chancellor of Part II, who recused himself because of his
      acquaintance with plaintiff. Chancellor Joe C. Morris, of Jackson, was
      thereafter designated as Special Chancellor. After the Honorable Floyd
Peete        was duly elected Chancellor of Part II, the case was transferred to him
as    the presiding chancellor. While obviously handled properly, at some point
      prior to trial, Chancellor Peete recused himself and Special Chancellor
      Russell Fowler was designated to try the case. When, how, and by whom
      Special Chancellor Fowler was designated is unknown as there is no order
      in the record.

                                          5
automobiles over the years as well as providing her with insurance through BAM’s

fleet insurance policy.

      Again, over objections of counsel for defendants, certain BAM employees

were permitted to testify in a manner supportive of plaintiff’s earlier testimony.

Donald Kelly, a carpenter and maintenance man employed by BAM, testified that

beginning in the 1960's, he made weekly visits to plaintiff’s home to make both

minor and major repairs, ranging from installing light bulbs to repairing the roof. He

was also permitted by the chancellor, over the objections of defendants’ counsel,

to testify as an expert and give an opinion as to the value of the goods and services

he supplied in this endeavor, without a full examination of his qualifications to testify

as an expert witness.


      Iwona Long, plaintiff’s former personal secretary, and Mary Mitchell, who

served as bookkeeper for plaintiff, the BAM partnership, Ham Mitchell, and the Ham

Mitchell estate, both testified as to various amounts of cash payments and goods

and services supplied to decedent and the notations they made of same on the

loan amortization schedule. Mary Mitchell testified that at the end of each year,

at plaintiff’s request, she would give him a list of all the goods and services he had

provided Mrs. Reynolds that year.


      Defendant Pickens was the sole witness who testified on behalf of

defendants.    He stated that at the time of trial, based upon the amount of

indebtedness listed by plaintiff in his final report in bankruptcy, plaintiff owed

$102,790.23 as the balance of the principal due on the note, with accrued simple

interest totaling $44,887.54, for a total of $147,677.77.


      At the conclusion of all the proof, the chancellor instructed the jury as to the

law that they should consider and other aspects of their deliberations. Included

therein were three special instructions, the first two of which were submitted at the

request of the defendants and agreed to by plaintiff, and the third was a special


                                           6
request made by plaintiff, modified in part and accepted by the chancellor. They

were as follows:


             Ladies and gentlemen of the jury, I further instruct you that the
      term <res judicata’ . . . is defined in the law as a matter adjudged; a
      thing judicially acted upon or decided; a thing or matter settled by
      judgment.

            Ladies and gentlemen of the jury, I further instruct that the
      confirmation of a plan of reorganization by a United States Bankruptcy
      Court has the effect of a judgment of a United States District Court,
      and res judicata principles bar relitigation of any issues raised or that
      could have been raised in the confirmation proceedings.

            Ladies and gentlemen of the jury, a payment by a third party to
      a creditor on behalf of the debtor is payment towards the debt.


                                 I. The Jury Charge

      While our Latin studies teach us that “all Gaul is divided into three parts,” the

special jury instructions given by the chancellor above at the request of the parties

should be divided into two parts. The two special jury instructions given by the

special chancellor at the behest of the defendants in essence told the jury that the

confirmation of a plan of reorganization in a U.S. Bankruptcy Court had the same

effect as a judgment of a U.S. District Court, and that res judicata would bar

relitigation of any issues that were presented or could have been presented in the

bankruptcy confirmation proceedings. The court explained to the jury what “res

judicata” means—i.e., a thing or matter settled by judgment.            As we have

indicated earlier, these two instructions were approved by counsel for both parties.




      Thereafter, in virtually the same breath, the chancellor told the jury that “a

payment by a third party to a creditor on behalf of the debtor is payment towards

the debt.” In simple language, this instruction said to the jury that any payment by

the BAM partnership to the decedent on behalf of plaintiff Mitchell constituted a

payment towards Mitchell’s debt to decedent. It is this instruction about which

defendants strongly complain and which was given over their objections.


                                          7
      The effect of the confirmation of a plan of reorganization in a Chapter 11

Bankruptcy case is stated in 11 U.S.C.A. § 1141 (1993), which reads in pertinent part

as follows:


      (a) Except as provided in subsections (d)(2) and (d)(3) of this section,
      the provisions of a confirmed plan bind the debtor . . . and any
      creditor . . . [of] the debtor, whether or not the claim or interest of such
      creditor . . . is impaired under the plan and whether or not such
      creditor . . . has accepted the plan.


The federal courts have consistently upheld the finality of a confirmation of a

bankruptcy. E.g., In re Chattanooga Wholesale Antiques, Inc., 930 F.2d 458, 463

(6th Cir. 1991). The Sixth Circuit stated as follows:


              Section 1141 is entitled “Effect of confirmation.” Section 1141(a)
      lists categories of parties who are bound by the terms of confirmed
      plan. The effect of confirmation under the plan language of § 1141(a)
      is to bind all parties to the terms of a plan of reorganization.

            . . . Confirmation of a plan of reorganization by the bankruptcy
      court has the effect of a judgment by the district court and res
      judicata principles bar relitigation of any issues raised or that could
      have been raised in the confirmation proceedings.



Id. (citations omitted).



      Plaintiff’s interim and final reports in bankruptcy stated, under oath, in part

that the principal amount of the indebtedness to Prudence Reynolds was

$102,902.28. Plaintiff’s amended plan of reorganization further stated that this debt

to decedent was to be “fully settled, satisfied and discharged in accordance with

her Promissory Note and Deed of Trust.” Plaintiff’s amended plan of reorganization

was confirmed on June 13, 1984, by the Honorable William B. Leffler, Chief U.S.

Bankruptcy Judge. Any credits that plaintiff contended that he was entitled to up

to the filing of his amended plan of reorganization should have been and could

have been presented to the bankruptcy court for consideration. It is apparent from

the lack of any evidence in this case of plaintiff contesting the amount owed that

                                           8
he completely and totally failed to do so.



      Plaintiff contended in the trial court and contends in this court in his brief and

oral argument that the balance of the loan as stated in his interim report and final

report in his Chapter 11 case was a “mistake,” arising from a misunderstanding with

his attorneys in the bankruptcy case. As a result of this “mistake,” plaintiff contends

that he is not bound under the statutory and case law that we have cited herein

to this amount. This contention is without merit. An argument by the debtor quite

similar to this argument of plaintiff was rejected in In re Dooley, 116 B.R. 573, 578

(Bankr. S.D. Ohio 1990). In Dooley, the debtor challenged the amount allowed of

a secured creditor’s claim on the ground that the creditor did not properly give

credit to the debtor’s obligation to him on various preconfirmation payments. The

court therein noted that debtor had the opportunity to challenge the amount of

the allowed at two different confirmation hearings, and that the debtor submitted

his amended his plan of reorganization over the creditor’s objection. In rejecting

this contention, the bankruptcy judge stated in part:



             The lengthy and often vigorously contested process leading to
      the confirmation of a debtor’s proposed Chapter 11 Plan would
      become meaningless if the order confirming a debtor’s plan was not
      accorded preclusive effect. For that reason, among others, a specific
      provision was enacted in Chapter 11 to statutorily strengthen the
      preclusive effect granted to a Chapter 11 confirmation order.

             . . . It is impossible to ignore the inclusion of the words “The
      provisions of a confirmed plan bind the debtor” in applying this
      section. One Bankruptcy Court noted, “It is the opinion of this court
      that § 1141 of the Bankruptcy Code means what it says and not only
      are the creditors bound by the confirmed plan, but the debtors are
      also so bound.” (citations omitted)



Id. at 578-79.



      To give even more finality to this conclusion, we cite Miller v. Meinhard-

Commercial Corp., 462 F.2d 358, 360 (5th Cir. 1972), wherein that court stated in

                                          9
part:



              An arrangement confirmed by a bankruptcy court has the
        effect of a judgment rendered by a district court, and any attempt be
        the parties or those in privity with them to relitigate any of the matters
        that were raised or could have been raised therein is barred under the
        doctrine res judicata.

                . . . The suit is no more than a collateral attack upon the
        referee’s order confirming the plan of arrangement; the integrity of the
        judgment is challenged. Even though an action has an independent
        purpose and contemplates some other relief, it is a collateral attack
        if it must in some fashion overrule a previous judgment.

              . . . Res judicata applies where the subject matter is the same,
        “not only to every matter which was offered and received to sustain
        or defeat the claim or demand, but also as to any other admissible
        matter which might have been offered for that purpose.”



Id. at 360 (citations omitted).



        We therefore conclude that the special chancellor erred when he gave

plaintiff’s special request as modified, thereby permitting the jury to consider

plaintiff’s credits against the note held by the decedent that were clearly

precluded by the bankruptcy proceedings.


        It now becomes necessary to decide whether this erroneous charge, more

probably then not, affected the judgment of the jury. T.R.A.P. 36(b) provides that

“A final judgment . . . shall not be set aside unless, considering the whole record,

error . . . more probably than not affected the judgment.“ In reviewing the

erroneous charge, it is appropriate to consider the charge as a whole in

determining whether a prejudicial error has been committed.                The specific

instruction at issue must be considered in light of its context. Gorman v. Earhart, 876

S.W.2d 832, 836 (Tenn. 1994).


        Viewing the record as a whole, the erroneous charge that the jury could

consider payments made by a third party, BAM, to the creditor, decedent, on


                                           10
behalf of the debtor, plaintiff Mitchell, in satisfaction of the debt, more probably

than not affected the verdict. One of the decisive issues before the jury was the

amount that Mitchell owed his aunt at the time the suit was brought. A substantial

portion of plaintiff’s proof focused on the various and sundry types of credits that

were reportedly given, or should have been given, against his note to decedent

in the form of services rendered the decedent by the BAM partnership and persons

employed by the partnership, as well as other goods allegedly provided decedent

by plaintiff as a member of the BAM partnership. All of this testimony was objected

to and was subject to the defense of res judicata as a result of the plaintiff’s

confirmed amended plan of reorganization.


      It is apparent to this court, from the record, that the jury took into account the

plaintiff’s testimony concerning the value of goods and services provided to the

decedent by the BAM partnership. While the bankruptcy proceedings established

that the principal amount plaintiff owed the note as of November 1988 was

$102,902.28, the jury determined that the balance due on the note to decedent

was only $41,101.64. Taking all this into account, the trial court’s charge more likely

than not influenced the jury in determining the balance due on the note in

question. The judgment of the trial court therefore must be reversed.


      As for the remaining evidentiary issues of defendants, we find that each and

every one of them constituted error on behalf of the trial court. In light of the legal

effect of res judicata of the bankruptcy court’s orders and judgments, the evidence

plaintiff sought to introduce concerning the value of goods and services provided

by the BAM partnership was irrelevant, immaterial, and inadmissable. T.R.E. 402.


      Upon remand, the scope of the hearing should be limited to the task of

ascertaining the amount actually due and owing by plaintiff on the secured

promissory note, plus accrued interest and attorney’s fees. Taking as a beginning

point the outstanding balance on the promissory note as stated in the bankruptcy


                                          11
court’s final order of November 1988, the trial court should ascertain the amount of

payments, if any, made by plaintiff from the time of the final order of bankruptcy

until the date of trial, plus all accrued interest to date.



      Accordingly, the decree of the trial court is reversed and this cause is

remanded to the Chancery Court of Shelby County for further proceedings not

inconsistent with this opinion. Costs in this cause on appeal are taxed to plaintiff,

for which execution may issue if necessary.


                                        ________________________________________
                                        TOMLIN, Sr. J.



                                        ________________________________________
                                        LILLARD, J.             (CONCURS)



                                        HIGHERS, J., Not participating




                                           12
                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

BILLY GWINN MITCHELL,

Plaintiff/Counter-Defendant/Appellee,
                                                         Shelby Chancery No. 97623-2 R.D.
v.                                                       C.A. No. 02A01-9503-CH-00060

SAM F. COLE, JR., Substitute
Trustee, ESTATE OF PRUDENCE
REYNOLDS, and GERALD W.
PICKENS,Administrator CTA,
                                                                              F IL E D
Defendants/Counter-Plaintiffs/Appellants.                                      Oc tober 3, 1996

______________________________________________________________________________
                                                         C e c il C ro w s o n , J r.
                                                                              A p p e lla t e C o u r t C le r k
                                    ORDER
______________________________________________________________________________

       Plaintiff has timely filed a petition to rehear in this cause. After full consideration the petition

is respectfully denied.



       ENTER this 3rd day of October, 1996.



                                                ____________________________________________
                                                Hewitt P. Tomlin, Jr., Senior Judge



                                                __________________________________________
                                                Holly Kirby Lillard, Judge


                                                Allen E. Highers, Judge
                                                Not participiating
