                    IN THE COURT OF APPEALS OF TENNESSEE,
                                AT NASHVILLE

             _______________________________________________________

                                    )
PENNY POSTELLE,                     )     Davidson County Circuit Court
                                    )     Nos. 97C-578 and 97C-569
   Plaintiff/Appellee.              )
                                    )
VS.                                 )     C.A. No. 01A01-9708-CV-00446
                                    )
DR. GENE SNEAD, Individually and
d/b/a EMERGENCY CHIROPRACTIC )
CLINIC,
                                    )

                                    )
                                                          FILED
                                    )
                                                          July 17, 1998
   Defendant/Appellant.             )
                                    )
                                                        Cecil W. Crowson
______________________________________________________________________________
                                                      Appellate Court Clerk
From the Circuit Court of Davidson County at Nashville.
Honorable Thomas W. Brothers, Judge



John M. Cannon, CANNON, CANNON & COOPER, P.C., Goodlettsville, Tennessee
Attorney for Defendant/Appellant.


Stephen Crofford, PARKER, ALLEN & CROFFORD, Nashville, Tennessee
Attorney for Plaintiff/Appellee.



OPINION FILED:

AFFIRMED AND REMANDED


                                           FARMER, J.

CRAWFORD, P. J., W.S.: (Concurs)
LILLARD, J.: (Concurs)
                    This case addresses the issue of whether the dismissal of an action for failure to

prosecute in general sessions court operates as an adjudication on the merits, thus barring a

subsequent suit on the same cause of action under the doctrine of res judicata, absent local rule. The

appellant, Dr. Gene Snead, individually, and d/b/a Emergency Chiropractic Clinic (hereinafter

“Snead”), has appealed from the summary judgment entered by the trial court in favor of the

appellee, Penny Postelle (“Postelle”), which holds that such dismissal is not an adjudication on the

merits and that the res judicata doctrine is not an available defense to Snead in the present action.

After review of the record, we affirm the judgment of the trial court for the reasons hereinafter stated.



                    On July 31, 1996, Postelle filed a civil warrant in general sessions court against Snead

to recover $5,500 allegedly due her for work and labor performed on Snead’s behalf. A hearing was

set for August 23, 1996. Postelle did not appear in court on the day of the scheduled hearing. Snead

and his counsel were present, however, and Postelle’s suit was dismissed for failure to prosecute.

The judgment states “[d]ismissed F.T.P.” and is dated August 28, 1996. The record does not include

an appeal from the dismissal.



                    On December 13, 1996, Postelle filed an identical action against Snead in the general

sessions court. Snead filed a motion to dismiss this second action on the basis that the dismissal of

the first action for failure to prosecute was an adjudication on the merits and that the present action

was barred under the doctrine of res judicata. Snead asserted, “[Postelle] has already had the

opportunity to litigate this matter and instead, this case was dismissed in favor of [Snead].

Therefore, this Court must, under the doctrine of res judicata dismiss this action . . . .” The general

sessions court granted the motion and entered judgment for Snead on February 18, 1997.1 The court

also denied Postelle’s motion to set aside the order of dismissal entered on August 28, 1996. On

February 27, 1997, the presiding judge of the general sessions court entered an order amending local

Civil Rule 4.01 by adding the following language: “[w]hen a case is dismissed without a trial for

want of prosecution, said dismissal shall be without prejudice to either party’s right to bring it

again.”




          1
              The judgment inadvertently reads “2-18-96.”
                 Postelle appealed the general sessions court’s decision to circuit court where she filed

a motion for summary judgment asserting that the amendment to local rule 4.01 resolved the issue.2

(R. 12). Snead also filed a motion for summary judgment asserting that the rule upon which Postelle

relied was entered after the accrual of their defense of res judicata3 and also argued, from the

standpoint that Postelle was apparently appealing both the granting of the motion to dismiss and the

denial of her motion to set aside, that it was too late to set aside the prior order of dismissal because

Postelle did not appeal that decision within ten (10) days after the original hearing.4



                  After entertaining the parties’ respective motions, the trial court entered an order

granting Postelle’s motion for summary judgment “on the issue of res judicata not being an available

defense” and also on the issue that the monetary amount to which she would be entitled, if liability

were proven, was $5,500. The court denied Snead’s motion for summary judgment and expressly

reserved the issue of liability. After further hearing, the trial court entered a final judgment finding

“no genuine issue of material fact for trial” and awarding a judgment to Postelle for $5,500.5



                  The sole issue presented on appeal, as stated by the appellant, is “[w]hether a

dismissal for failure to prosecute in a general sessions case, absent local rule or specific finding of



       2
           The motion reads, in part, as follows:

                 The problem at the General Sessions level was that the local rules for the
       General Sessions Court of Davidson County, Tennessee, did not address whether
       a dismissal for failure to prosecute was a judgment on the merits or not. A special
       Judge made the ruling at the General Sessions level. The fact that this case was
       appealed was brought to the attention of the General Sessions Court
       Administrator, providing the Court Administrator the briefs of both parties. . . . In
       response to this inquiry, the General Sessions Judges, through the presiding Judge,
       . . . responded with a letter dated February 28, 1997, and an Order amending the
       local rules of the General Sessions Court of Davidson County, Tennessee. . . .

               . . . the General Sessions Court of Davidson County, Tennessee, has
       clarified and set forth the practice in General Sessions Court to specify that a
       dismissal for want of prosecution is a dismissal without prejudice to either
       parties[’] rights to bring it again.
       3
         The parties do not dispute that the amendment to local rule 4.01 occurred after the ruling
of the general sessions court on February 18, 1997.
       4
           The affidavit of Dr. Snead was submitted in support of the motion.
       5
         The affidavit of Postelle submitted in support of her motion for summary judgment states
that the money due her from Snead is $5,500. This amount was not refuted in the affidavit
submitted by Snead.
prejudice, operates as a res judicata bar to the same action in a subsequent suit.” We believe this

issue is resolved by this court’s opinion in Sea-Land Service, Inc. v. Buntrock Indus., Inc., No.

03A01-9407-CH-00237, 1994 WL 719601 (Tenn. App. Dec. 28, 1994). In Sea-Land, the plaintiff

initially filed suit against the defendant in general sessions court and on the scheduled hearing date

failed to appear, although defendant and counsel were present. The suit was dismissed for failure

to prosecute. The plaintiff thereafter pursued the same action against the defendant in the chancery

court where it was dismissed upon motion for summary judgment under the doctrine of res judicata.

The only issue presented on appeal was whether the trial court had erred in entering summary

judgment for the defendant. In holding the doctrine inapplicable under the facts before it, the Sea-

Land court reasoned as follows:



               In order for res judicata to operate as a bar to plaintiff’s suit in the
               instant case, the dismissal of the prior general sessions suit must have
               been a dismissal on the merits of the case. Long v. Kirby-Smith, 40
               Tenn.App. 446, 292 S.W.2d 216, 219 (1956). Therefore, the
               dispositive issue in this case is whether the dismissal of the general
               sessions suit operated as a adjudication on the merits of the case.
               Under Tenn.R.Civ.P. 41.02, the dismissal for failure to prosecute
               operates as an adjudication upon the merits unless otherwise ordered
               by the court. However, the Tennessee Rules of Civil Procedure do
               not apply, with certain exceptions not applicable here, to general
               sessions court. Tenn.R.Civ.P. 1. Accordingly, in the absence of a
               statute or rule to the contrary, common law controls the decision as
               to whether the general sessions dismissal operates as an adjudication
               on the merits.

                       In W. R. Grace & Company v. Taylor, 55 Tenn.App. 227, 398
               S.W.2d 81 (Tenn.App. 1965), this court was faced with a similar
               problem. In Grace, the defendant entered a plea of res judicata on the
               ground that a bill on the same cause of action had previously been
               filed by complainant in November of 1961, but had been dismissed
               by decree of September 3, 1962, for failure to prosecute. Id. at 82.
               On the date the first case was set for trial, complainant did not appear,
               although defendant was ready for trial. Id. at 83. The court then
               dismissed plaintiff’s case for want of prosecution. Id. The plaintiff
               then refiled the same suit a short time later. In the second suit, the
               chancellor overruled defendant’s plea of res judicata, and held that
               the order of dismissal, even though it did not recite that it was without
               prejudice, was not res judicata. In affirming the chancellor, this court
               said:

                               [W]here it appears on the face of a decree of
                       dismissal that it was not upon the merits, as in this
                       case where it appears from the face of the decree the
                       dismissal was based on want of prosecution, that a
                       suit on the same grounds may be reinstated at any
                       time within one year, and that such a decree is not res
                       judicata.

                       Id. at 83. See also Patrick v. Dickson, 526 S.W.2d 449
               (Tenn.1975); Woods v. Palmer, 496 S.W.2d 474 (Tenn. 1973).

                       In Patrick v. Dickson, supra, our Supreme Court, after ruling
               that the Tennessee Rules of Civil Procedure do not apply to paternity
               cases in juvenile court, held that an order of dismissal for failure to
               prosecute which stated that the dismissal was with prejudice did not
               operate as an adjudication on the merits and would not sustain the
               plea of res judicata in the case before the court. Id. at 453.

                       Under the above authorities, it appears that the dismissal for
               lack of prosecution of plaintiff’s first case in general sessions court
               was not an adjudication on the merits, and, therefore, res judicata
               would not bar this suit in the case before us. Accordingly, the order
               of the trial court granting summary judgment is reversed.



               We find the reasoning set forth in Sea-Land applicable to the present case. We

therefore find that the dismissal of Postelle’s original suit for failure to prosecute was not an

adjudication on the merits and that Postelle was entitled to refile the same action against Snead, in

accordance with the savings statute. The doctrine of res judicata is not available as a defense to

Snead in the present action.



               It results that the judgment of the trial court is affirmed and this cause remanded

thereto for any further proceedings herewith consistent. Costs are assessed against the appellant, for

which execution may issue if necessary.



                                               ____________________________________
                                               FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)



______________________________
LILLARD, J. (Concurs)
