             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                       FILED
                                                         April 30, 1999

                                                       Cecil Crowson, Jr.
EARLENE POLYAK,                        )              Appellate Court Clerk
                                       )
       Plaintiff/Appellant,            )
                                       )    Appeal No.
                                       )    01-A-01-9803-CH-00133
VS.                                    )
                                       )    Lawrence Chancery
                                       )    No. 7951-96 and 7736-95
DORA LEE HULEN and                     )
WILMA LESNANSKY,                       )
                                       )
       Defendants/Appellees.           )


      APPEALED FROM THE CHANCERY COURT OF LAWRENCE COUNTY
                  AT LAWRENCEBURG, TENNESSEE

                  THE HONORABLE JIM T. HAMILTON, JUDGE




EARLENE POLYAK
3179 Middlefield Drive
Trenton, Michigan 48183
      Pro Se/Plaintiff/Appellant

DALTON MOUNGER
806A South Garden Street
Columbia, Tennessee 38402-1468
      Attorney for Defendants/Appellees




                              REVERSED AND REMANDED




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


CONCUR:
KOCH, J.
COTTRELL, J.
                                 OPINION


              This family dispute over the partition of a forty-two acre farm in

Lawrence County is well into its third decade. The Chancery Court of Lawrence

County granted judgment on the pleadings and ordered the property sold for partition.

We reverse and remand for further proceedings.



                                           I.



              Rena Hulen, the owner of the farm died in 1976. She left her property

in equal shares to her three children, Earlene Polyak, Frank Hulen, and Wilma

Lesnansky. The farm contained a small house and a barn.



              In 1983 Mr. Hulen and Ms. Lesnansky filed a complaint in the chancery

Court of Lawrence County asking that the farm be sold for partition. Ms. Polyak’s

defense has always been that the parties orally agreed to partition the property so that

she would get the house and approximately ten acres on the front, Ms. Lesnansky

would get a site for her son to build a house to the north of the farmhouse, and Mr.

Hulen would get some of the property on the back next to his own farm. Apparently

Ms. Polyak lost that battle (the order from that case is not in the record), and she set

out on a journey through the federal courts, seeking to enjoin the sale of the property

and to recover damages for a host of civil rights violations. The course of this journey

is described in part in an order from the Sixth Circuit Court of Appeals filed on August

13, 1993:

                     This case and eight others presently before the
              court (92-6345/6525; 92-6347/6528; 6526; 6527; 6529;
              and 6530) had their origin in 1976 when Mrs. Polyak and
              her two siblings inherited from their mother a family farm
              in Lawrence County, Tennessee, as tenants in common.
              Mrs. Polyak’s siblings sought and obtained a partition sale
              of the property. Mrs. Polyak objected to the manner in
              which the farm was divided and began protracted state
              court proceedings.

                    Failing to prevail in state court litigation, Mrs.
              Polyak began her assault on the partition sale in federal


                                         -2-
             court in 1985. She sought monetary damages and an
             order setting aside the partition sale. The defendants in
             this case are Mrs. Polyak’s brother, Frank Hulen, and her
             sister, Wilma Lesnansky. The defendants have long ago
             stopped filing briefs in response.

                    Mrs. Polyak is appealing from an order entered by
             the district court on October 6, 1992, in which the court
             held that it would not consider any further submissions by
             Mrs. Polyak to relitigate any issue regarding the parties or
             the property involved in the partition sale.



             In December of 1995 Ms. Polyak filed a complaint in the Chancery Court

of Lawrence County against Ms. Lesnansky and Mr. Hulen. The basis for the

complaint was the “settlement by agreement” of the parties in 1976. The complaint

went on to describe expenses Ms. Polyak had incurred in working on the house, how

her appeal of the order of sale was inadvertently lost, how the tobacco allotment was

transferred to another (unspecified) farm, and how the whole ordeal had caused her

stress, anxiety, and embarrassment. She prayed for $250,000 in compensatory

damages, $250,000 in punitive damages, and a deed to the house and ten acres.



             In February of 1996 Mr. Hulen and Ms. Lesnansky, acting pro se, moved

to dismiss the complaint under Rule 12.06, Tenn. R. Civ. Proc., for failure to state a

claim. The court entered an order on February 21, 1996 containing the following

findings:

                     It appears to the Court that the plaintiff will pursue
             any means to re-litigate the previous and related issues
             that were involved or which arose out of the same
             transactions and occurrences that were involved in
             lawsuits already adjudicated in this Court, including, in this
             instance, attempting to bring in as defendants the
             plaintiffs in the original lawsuit in which the plaintiff herein,
             Earlene Polyak, was a defendant. That lawsuit was filed
             in the Chancery Court of Lawrence County, Tennessee,
             bearing Action No. 1974. The Court takes judicial notice
             from the public record that plaintiff herein, Earlene Polyak,
             has already litigated this dispute with the defendants
             named herein, in this and several other courts, and the
             averments therein appear to be largely the same as in this
             particular case. The original case was appealed to the
             Tennessee Court of Appeals and to the Tennessee
             Supreme Court. As mentioned, the dispute has also been
             filed by plaintiff in numerous courts across the United
             States of America and has even been pursued to the
             United States Supreme Court. It appears from the record,
             the Court’s judicial notice of prior matters of public record,
             and defendants’ motion that plaintiff’s action is frivolous,

                                          -3-
              filed in bad faith, vexatious and otherwise should be
              dismissed, fails to state a claim upon which relief can be
              granted and is barred.

                      The Court, therefore, on defendants’ Motion, and
              also sua sponte, dismisses this lawsuit filed by the
              plaintiff, Earlene Polyak, against the defendants, Frank
              Hulen and Wilma Lesnansky. Court costs are taxed to
              plaintiff.



              In May of 1996 Ms. Lesnansky and Dora Lee Hulen filed a complaint in

the Chancery Court of Lawrence County seeking a sale of the farm for partition. The

complaint alleged that Frank Hulen died on April 11, 1996 and that Dora Lee Hulen

was the sole beneficiary under his will.



              Ms. Polyak filed an answer and counterclaim containing the same

allegations she pressed in the complaint just recently dismissed. She then filed a

notice of removal in the Columbia Division of the United States District Court. The

district court remanded the state claims to the chancery court after dismissing the

federal claims in the counterclaim.



              In the meantime, Ms. Hulen and Ms. Lesnansky had moved to dismiss

the counterclaim for failing to state a claim on which relief can be granted. They also

moved for judgment on the pleadings. On February 10, 1998 the chancellor entered

an order dismissing the counterclaim and another order granting judgment on the

pleadings. The next day the chancellor entered an order ordering the clerk and

master to sell the property described in the complaint.



              The two cases have been consolidated on appeal. Both cases were

disposed of on motions to dismiss, either for failure to state a claim under Rule

12.02(6), Tenn. R. Civ. Proc. or for judgment on the pleadings under Rule 12.03. Our

problem stems from the fact that the chancellor sustained both motions on the ground

of res judicata, but the record on appeal does not contain the support for that ruling.

In fact, the defense of res judicata has not even been raised in either proceeding.




                                           -4-
              As we said in Gregory v. Gregory, 803 S.W.2d 242 (Tenn. App. 1990),

the defense must be pled and the party raising the defense must prove it. “To carry

that burden, the party raising the defense must generally put in evidence the record

or a copy of the record of the former case . . . . If the record does not conclusively

show that a particular matter was determined in a former proceeding, the party relying

on res judicata as a defense must supplement the record by other proof.” Id. at 244.



              We have also searched the records of this court for evidence on which

we could base a decision, but we have only found evidence that Ms. Polyak attempted

to appeal a 1983 decision and the appeal was dismissed for the lack of a final

judgment. Therefore, on the basis of what we have before us, we cannot sustain a

judgment on the pleadings or a judgment of dismissal for failure to state a claim. On

remand the appellees may be able to establish a record showing they are entitled to

the relief sought.



              The judgments entered in the two cases from the lower court are

reversed and the causes are remanded to the Chancery Court of Lawrence County

for further proceedings. Tax the costs on appeal to the appellees.



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

CONCUR:


_____________________________
WILLIAM C. KOCH, JR., JUDGE


_____________________________
PATRICIA J. COTTRELL, JUDGE
