This is a suit by Lloyd David Medley contending he is the surviving spouse of Virgie Mae Thomas Medley. He seeks homestead, year's support, exempt property and elective share as to her estate. The suit was brought against Kyle Greene, Dora Cantwell and Tylor Johnson. Dora Cantwell and Tylor Johnson are the Beneficiaries under the will of Mrs. Medley. However, the record does not disclose why Kyle Greene was made a party Defendant.

The last order entered by the Trial Court, which is the subject of this appeal corrected an order previously entered to conform with the judgment of a separate divorce action filed three years earlier. The order appealed recognized that the judgment granting the divorce in the earlier action was invalid, and as a result Mr. Medley was Mrs. Medley's surviving spouse.

It does not appear that this is a final order subject to an appeal as of right because the relief sought — homestead, year's support, exempt property and elective share — was not addressed. However, in the interest of judicial economy we believe it appropriate to treat this is a Rule 9 interlocutory appeal and waive any uncomplied with rules necessary to perfect such an appeal.

In defense of the complaint, the Beneficiaries contend Mrs. Medley was legally divorced from the Appellee, Lloyd David Medley.

There are two separate actions involved, although only one, Case No. 91-336, is on appeal. The case on appeal was filed by Mr. Medley in order to share in Mrs. Medley's estate. The Beneficiaries challenged that action, claiming that Mr. Medley was not entitled to recovery based upon a default divorce decree previously entered (Case No. 91-146).

Virgie Mae Thomas Medley and Lloyd David Medley were married on July 19, 1983. They separated in 1988, and Mrs. Medley filed for divorce on April 1, 1991. On April 2, 1991, process of service was issued as to Mr. Medley. The date of service was not recorded, nor was there any indication when process was returned. On May 9, 1991, Mrs. Medley was granted a divorce. Mr. Medley did not appear.

Mrs. Medley died on May 14, 1991. She was buried next to her first husband three days later. On June 4, 1991, Mrs. Medley's attorney presented an oral motion to vacate the divorce judgment. The motion was predicated upon the fact that the date of service was on April 23, 1991, which, under the Tennessee Rules of Civil Procedure, allowed Mr. Medley 30 days thereafter within which to answer the complaint for divorce. This period, of course, had not expired prior to the entry of divorce decree which, if invalid, as found by the Trial Judge, abated the divorce proceeding. Responding to the motion, the Trial Court entered an order vacating the divorce judgment which was approved by counsel representing Mr. Medley and counsel representing the Beneficiaries.

Apparently, counsel who represented Mrs. Medley in the divorce proceeding felt compelled as an officer of the Court to bring this matter to the attention of the Court.

Six months later, Mr. Medley filed a claim against Mrs. Medley's estate, seeking to obtain his homestead, year's support, exempt property and elective share ("homestead action"). The Beneficiaries objected to this action by filing a motion to vacate the order vacating the divorce. The Hamblen County Chancery Court granted the motion to vacate the order of dismissal on the ground that Mrs. Medley's attorney had no authority to act on her behalf in filing the motion, because her authority ended with Mrs. Medley's death on May 14, 1991. The effect of that action was to reinstate the divorce. However, the Chancellor pointed out that Mr. Medley could still challenge the divorce with a Rule 60 motion.

On December 23, 1991, Mr. Medley filed a Rule 60 motion seeking to set aside the May 9, 1991, default judgment granting Mrs. Medley a divorce. The motion was brought to the attention of the Beneficiaries. The effect of such a motion obviously would be to rescind the divorce, thereby reinstating the marriage which did not terminate until Mrs. Medley's death. That action would allow Mr. Medley to share in Mrs. Medley's estate.

In August 1994, the Hamblen County Chancery Court entered an order in this case, making the judgment conform to the judgment of the divorce action. The Beneficiaries appealed from this final order.

They submit the following issues:

DID THE CHANCELLOR ERR IN DECLARING ON DECEMBER 23, 1991 THAT THE DIVORCE, GRANTED BY THE COURT ON MAY 9, 1991, WAS VOID AND THAT LLOYD DAVID MEDLEY AND VIRGIE MAE THOMAS (MEDLEY) WERE MAN AND WIFE AT THE TIME OF HER DEATH ON MAY 14, 1991?

DID THE CHANCELLOR ERR IN DECLARING ON AUGUST 22, 1994 THAT THE JUDGMENT THAT HAD BEEN APPROVED BY ALL THE PARTIES AND THE COURT AND ENTERED IN THE COURT FILE (91-336) ON DECEMBER 23, 1991, WAS VOID?

The order, which was approved by counsel for the parties — not the parties — was not an agreed order and was obviously approved only as to form.

The Beneficiaries misstate the 1994 order. The Chancellor did not declare the judgment void. Rather, he held that the judgment was incorrect in that it misstates the judgment in the divorce proceeding.

Mr. Medley counters with the argument that the Beneficiaries failed to timely challenge the December 23, 1991, order dismissing the divorce proceeding, and that they are now estopped from challenging the validity of the divorce in the homestead proceeding due to collateral estoppel. We agree with Mr. Medley that the Beneficiaries did not timely challenge the divorce proceeding, and that collateral estoppel now precludes them from challenging that decision in a separate action.

The order setting aside the divorce judgment in Case No. 91-146 was entered on December 23, 1991. Rule 4 of the Tennessee Rules of Appellate Procedure specifically states that a notice of appeal must be filed with the clerk of the trial court within 30 days after the entry of the judgment appealed from. In civil cases that Rule is mandatory and jurisdictional. See Jefferson v. Pneumo Services Corp., 699 S.W.2d 181 (Tenn. App. 1985). See also John Barb, Inc. v. Underwriters at Lloyds of London, 653 S.W.2d 422 (Tenn.App. 1983). Consequently, the Beneficiaries had 30 days after December 23, 1991, to appeal that action, which they did not do. Therefore, we hold that the Beneficiaries cannot now challenge the judgment of the Chancellor entered on December 23, 1991, vacating the divorce decree.

Mr. Medley also claims that the Beneficiaries are precluded from challenging the August 1994 ruling in the action on appeal because of the final judgment entered in 1991 in the divorce proceeding. He argues that the doctrines of res judicata and collateral estoppel preclude the Beneficiaries from asserting that the Medleys were divorced, since a final decree had already been entered dismissing the divorce proceeding. We agree.

"(C)ollateral estoppel . . . precludes relitigation of issues between the parties or their privies in different causes of action provided resolution of the issue was necessary to the decision." Phillips v. General Motors Corp., 669 S.W.2d 665 (Tenn.App. 1984). The issue in the homestead action turned on whether the divorce decree entered on May 9, 1991, was valid. That was the same issue decided by the Rule 60 motion in the divorce action. Under collateral estoppel, further litigation of the validity of the divorce was precluded as to the parties involved in the divorce action or their privies since the Court had already made a finding on that matter in the former action.

Collateral estoppel, which is an extension of the principle of res judicata, states that the same facts and questions "may not again be litigated in a subsequent action between the same parties or their privies . . . ." Harris v. St. Mary's Medical Center, 726 S.W.2d 902 (Tenn. 1987), quoting Booth v. Kirk, 53 Tenn. App. 139, 381 S.W.2d 312 (1963). (Emphasis in original.) Privity, in the context of res judicata, "is privity as it exists in relation to the subject matter of the litigation." Harris.

Thus, whether Mr. Medley can use this defense depends on whether the Beneficiaries were in privity with Virgie Mae Thomas Medley.

Privity was defined by our Supreme Court in Fultz v. Fultz, 180 Tenn. 327, 330, 175 S.W.2d 315, 316 (1943), when quoting from 24 Am. Eng. Ency. Law, p. 746, as follows:

"The term privity denotes mutual

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relationship to the same rights of property. The ground, therefore, upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party is that they are identified with him in interest, and whenever this identity is found to exist, all are alike concluded." (Citations omitted.)

Under the concept of privity, it is apparent that the Beneficiaries were privies of Mrs. Medley. The crucial element is that — in the divorce action and this action — the central issue is the same.

In order for the Beneficiaries to have succeeded in their defense of this action, they would have to prove the validity of the divorce judgment. The validity of that judgment was precisely the issue decided by the Chancellor in his Rule 60 decision in the divorce proceeding. Thus, the issue was the same in both actions binding the parties and their privies. The Chancellor did not err in correcting the order of Case No. 91-336, the action on appeal, to conform to the holding of Case No. 91-146, the divorce proceeding. Consequently, we hold that under the doctrine of collateral estoppel, the Beneficiaries are precluded from relitigating the same issue now.

The Beneficiaries, as already noted, had notice of the Rule 60 motion and did not seek to intervene.

For the reasons stated above, the judgment of the Trial Court is affirmed and the cause remanded for collection of costs below. Costs of appeal are adjudged against the Defendants and their surety.

_______________________________ Houston M. Goddard, P.J. (E.S.)

CONCUR:

________________________________ Herschel P. Franks, J.

________________________________ Charles D. Susano, Jr., J.

Medley v. Greene

Opinion

OPINION

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Medley v. Greene

Medley v. Greene

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