                                                                                            12/07/2017
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               September 13, 2017 Session

             FRANKIE G. MUNN V. SANDRA M. PHILLIPS ET AL.

                   Appeal from the Circuit Court for Cocke County
                       No. 33976-III       Rex H. Ogle, Judge
                      ___________________________________

                            No. E2016-02242-COA-R3-CV
                        ___________________________________

CHARLES D. SUSANO, JR., J., dissenting.

        The majority holds that a remand to the trial court is necessary “[b]ecause the trial
court failed to make specific findings of fact and conclusions of law regarding the
applicability of any res judicata defense . . . .” (Italics in original.) I believe the record
in this case clearly shows that the claim of the appellee Frankie G. Munn is barred by the
doctrine of res judicata. Hence, I see no need for a remand.

       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.” Massengil v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987) (Emphasis
added.). See also Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn.
1995); Goeke v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989).

        In the first lawsuit, Munn named Mr. and Mrs. Phillips as defendants. That case
pertained to the foreclosure sale. Munn could have, but did not, raise the issue of
whether the Phillips owed rent as they continued to reside in the foreclosed property. The
facts with respect to whether Munn’s suit is barred by the doctrine of res judicata are not
in dispute. This is a question of law that we can and should decide without a remand to
the trial court. I would reverse the trial court’s judgment awarding Munn $42,929.

       Accordingly, I respectfully dissent.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE
