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One Bite at a Time
Analyzing the Prior-Suit-Pending Doctrine in Tennessee
Every attorney knows that merger and bar limit a party to “one bite at the apple.” Those doctrines can cause headaches after the conclusion of an initial lawsuit (as well as during civil-procedure exams). But the underlying concepts can also ensnare litigants during the pendency of that first lawsuit.
This second pitfall comes to us courtesy of the prior-suit-pending doctrine. Derived from the common-law maxim that “a man shall not be twice vexed for one and the same cause,” the rule provides a defense to certain actions commenced during the pendency of a prior action on the same topic. Unfortunately, courts have not always agreed on the terminology: some have used “another,” “former,” or “previous” in place of “prior” and freely exchange “action” with “suit” alongside all of these. Fortunately, however, they have been much more consistent in applying the rule than in naming it.
The rule bars a suit filed during the pendency of an earlier suit when four criteria exist:
- the suits must pend between the same parties;
- the suits must concern the same subject matter;
- the suits must pend in courts created by the same sovereign; and
- each court must be capable of exercising jurisdiction over the dispute and the parties.
These are elements, not factors: each must be present for the doctrine to apply, although in one circumstance, discussed in Part IV, the third element is not required. For purposes of the rule, a suit becomes “pending” upon filing of the complaint, not with service on the defendant.
I. Identity of Parties
The first two elements, identity of parties and subject matter, carry complications. The difficulty in applying the identical-parties requirement derives in large part from the use of phrasing narrower than the rule itself. The basic statement of the rule accurately reveals that when precisely the same parties are present in both suits, the identical-parties element is satisfied. It is important to note that it is the parties themselves, not their status as plaintiffs or defendants, that control. In Metropolitan Development & Housing Agency v. Brown Stove Works, the Court of Appeals found itself faced with two parties embroiled in two lawsuits, one filed by each party. Prior suit pending barred the suit filed second in favor of that filed first, irrespective of the parties’ transposition. Where multiple parties appear on one or both sides of the caption, prior suit pending will clearly apply so long as they all appear together in the second suit. Tennessee’s courts do not appear to have faced the procedural headache of a second action that rearranges multiple parties’ relative positions, but the principles at work in the identical-parties and identical-subject analyses would undoubtedly still apply.
Those are the easy cases. The courts, however, have repeatedly affirmed that when they say “the same parties,” they actually mean functionally, or more or less, the same parties. These are the hard cases. A line of Tennessee decisions beginning with Fultz v. Fultz addresses prior suit pending’s application in contexts in which the parties in the two cases, while not identical, share a sufficient relationship to be bound under the rule. The Fultz court described the necessary relationship as one of privity: “the former suit need not necessarily be between precisely the same parties as the latter suit; it may be between their privies.” But it is not clear what “privity” means in this situation. Certainly parties who would constitute privies for res-judicata purposes must qualify as privies for prior-suit-pending purposes. The two cases following Fultz, however, suggest that the rule does not demand this much.
Twenty years after Fultz, the Supreme Court revisited the “same-parties” requirement in Cockburn v. Howard Johnson. There, the court found two affiliated corporations, sued in different actions over the same act of the same agent (apparently or at least allegedly representing both corporations), to be “in effect the same.” That is not a rigorously analytical statement. The Court of Appeals provided little additional insight in the more recent case Roy v. Diamond, in which two sets of plaintiffs sued the same attorney over his mishandling of an estate. Judge Highers wrote for the court that since both plaintiffs were seeking vindication of the estate’s rights as a result of the same misconduct, they were “sufficiently similar as to make no practical difference.”
The single thread that runs through these three cases is the common source of the right or liability at issue. Each set of parties at issue in Fultz, Cockburn and Roy derived their interest in the litigation from the same font: Roy’s from the estate’s interaction with the defendant attorney; Cockburn’s from the agent’s interaction with the plaintiff; Fultz’s from the paternity of the minor whose custody was at issue. Of the three, only the two Fultz parties seem to qualify as privies in the strict, traditional sense. During the pendency of a divorce and custody proceeding, the wife sought a writ of habeas corpus to remove a minor child from the home of his paternal grandparents. The grandparents derived any custody right solely through the father, the litigant in the prior suit: they were asserting his rights, not theirs. The Cockburn and Roy parties, on the other hand, derived their rights from a single font, but neither did so through the other: they were asserting their own rights, which just happened to be the same as those of the other “identical” party.
Ambitious counsel may be tempted to take Roy’s sweeping statement regarding “practical differences” to undue extremes. The published cases do not support a decision to discard consideration of a party’s presence because his interest in the action is outweighed by that of another. Using the identical-parties analysis to look through the parties’ identities and interests to try and determine who has the most at stake would cause prior suit pending to interfere with the liberality of the joinder rules. The authorities support grouping parties together when they share the relevant legal interest, but not simply because they bear some relation to one another.
II. Identity of Subject Matter
The second criterion, that the actions embrace the same subject, borrows its analysis (and many of its complications) straight from res-judicata law. The question is purely one of claim splitting. All other things being equal, prior suit pending bars any action during the pendency of an earlier action if res judicata would operate to bar it had the earlier action already been reduced to judgment. The main point of discussion on this point, then, becomes Creech v. Addington, the Supreme Court’s holding adopting the Second Restatement’s transactional view of causes of action. In short, each unique set of events (“transaction, series of transactions,” or “nucleus of operative facts,” to use the courts’ favorite phrases) yields one “cause of action.” Labels and requested remedies no longer control: a single cause of action may embrace many of each. Moreover this claim-splitting analysis does not require that claims actually have been asserted in the first action.
Although it does not make sense to speak of claim splitting where each party has filed a suit against the other, such that the plaintiff in the first action is the defendant in the second and vice versa, the transactional analysis still applies. The authorities suggest that prior suit pending only bars a separate action by the first suit’s defendant if it asserts claims that arise from the same transaction or are legally incompatible with possible outcomes in the first suit. The most striking case in this line provides a stark lesson in the necessity of applying the rule where the parties assert incompatible legal claims in the two suits.
Brown Stove Works Inc., sued the Nashville Metropolitan Development & Housing Agency in Bradley County; the MDHA sued Brown in Davidson County on the same dispute and then claimed it was not amenable to suit in Bradley County. The resulting judicial circus involved each chancellor issuing injunctions against proceedings in the other’s court, hardly a decorous result. The Court of Appeals settled the matter by ordering the dismissal of the second (Davidson) suit and instructing that the whole affair, including any question of jurisdiction over the MDHA, continue in the first (Bradley) suit. Although one can question whether the Court of Appeals correctly declined to decide the jurisdiction question for itself, the two lawsuits presented a textbook potential for incompatible results. Prior suit pending ought not to bar subsequent actions based on nothing more than commonality of parties and one party’s ability to formulate a generalized description encompassing both suits. But where the actions place the same events or incompatible legal claims at issue, the subsequently filed action should be dismissed.
Brown Stove Works also points to something else indecorous: races to the courthouse. Because prior suit pending rewards parties who file first, the rule invariably promotes this widely lamented professional vice. As the Supreme Court observed in West, “Our decision in this case clarifies the rules under which the race will be run but does nothing to prevent the race from occurring.”
III. Identity of Sovereignty & Concurrence of Jurisdiction
Elements three and four are the easiest. Item three, the shared sovereignty of the two tribunals, requires only that the two actions pend in the same state’s courts. The rule excludes from consideration, then, actions pending in federal courts, those tribunals being creatures of the United States, not any individual state. (Federal courts apply to their own cases a similar but distinct first-filed rule in place of the prior-suit-pending doctrine.) Take note, however: as discussed below, in-rem and quasi-in-rem actions do not require this element. In disputes of those types, another action pending in any court, even out-of-state or federal, will suffice for the rule’s application.
The fourth element is likewise no mystery: the courts in which the two actions pend must have personal jurisdiction over the parties and subject-matter jurisdiction over the dispute. Their jurisdiction only need be concurrent over the dispute in question; they need not be courts of equal dignity. In other words, all other things being equal, the claim in each case must be properly before the court in question and amenable to adjudication there. The chief source of difficulty with this part of the rule must come from attempts by the Chancery Court to enjoin Circuit proceedings. There, prior suit pending applies if the Circuit action is one as to which the two courts have concurrent jurisdiction.
Some appellate decisions, in articulating the third and fourth elements, state that the two suits must pend “in two courts.” This has led some litigants to claim that the doctrine does not prohibit a second suit if brought in the same judicial district or county. This incongruous conclusion is flawed first because, the abstruseness of the Judiciary Act notwithstanding, each county or district’s Circuit or Chancery Court is no more a “separate court” than are the divisions of one county’s. The rule would lose all meaning by reading “two courts” as a formal element, rather than judicial shorthand. Furthermore, the Court of Appeals has explicitly applied the doctrine to a pair of cases pending in the same courtroom.
IV. The In-Rem Exception
To complicate matters further, the third element, commonality of the court’s sovereignty, applies only when both actions are civil disputes in which the courts exercise only in-personam jurisdiction. At common law, a court could only exercise in-rem or quasi-in-rem jurisdiction if it took some physical possession of the res. Although Tennessee clerks no longer deploy padlocks and lock boxes for this purpose, the historical practice lives in the form of a legal fiction: the law treats property as having been carried physically into the custody of the court when made the subject of its jurisdiction.
Thus, at any given time, only one court, regardless of where situated or by what law created, may exercise in-rem or quasi-in-rem jurisdiction over a single article of property. Dismissal on the basis of the prior suit pending is proper, then, when a court is asked to exercise such jurisdiction at a time when another court, even an out-of-state court, is already doing so. Note that because the courts do not appear to have made up their minds as to how domestic cases fit into this tripartite system of jurisdiction, prior suit pending’s application in interstate family-law cases is less than clear.
The final question, then, is a practical one: how to win on the basis of the prior-suit-pending doctrine. Tennessee courts have come to treat prior suit pending as a jurisdictional doctrine. Thus, a defendant can move under Rule 12.02(6) and attach the prior complaint without converting the motion to one for summary judgment. Even if the courts be incorrect about prior suit pending determining subject-matter jurisdiction, a defendant should be able to move under Rule 12.02(6): first, the pendency of the prior suit is a matter of law, and two, the defense was asserted by plea in abatement prior to the adoption of the Rules of Civil Procedure.48 Note also that under the modern rule, the discontinuation of the first suit actually precludes use of the prior-suit-pending defense in the second.
Finally, bear in mind that dismissal on prior-suit-pending grounds is not itself an adjudication on the merits: the incongruous results the alternative would produce should not require explication.
- Sparry’s Case, (1591) 77 Eng. Rep. 148, 148 (Exch.). Accord Turner v. Lumbrick, 19 Tenn. (Meigs) 7, 11 (1838).
- Estate of McFerren v. Infinity Transp. LLC, 197 S.W.3d 743, 746 (Tenn. Sp. Workers’ Comp. A.P. 2006). See also West, 256 S.W.3d at 623. I must confess some liberty in articulating the elements. Despite their consistency in applying the rule, the courts have diverged on numbering the elements, and have generally applied the third element identified here without assigning it a number. But a test with three elements and an addendum is really just the four-element list shown here.
- See, e.g., Cockburn v. Howard Johnson Inc., 385 S.W.2d 101, 102 (Tenn. 1964).
- West, 256 S.W.3d at 624.
- See, e.g., Tillman v. City of Germantown, 601 S.W.2d 35, 36 (Tenn. Ct. App. 1980).
- 637 S.W.2d 876 (Tenn. Ct. App. 1982).
- Id. at 880.
- See, e.g., Cockburn, 385 S.W.2d at 102; Williamson v. Laughlin, 241 S.W.2d 576, 577 (Tenn. 1951). Cf. Koontz v. Cumis Ins. Soc’y Inc., 676 S.W.2d 350, 352 (Tenn. Ct. App. 1984) (involving the opposite situation: second suit joined former claims with independent claim against a different party; suit dismissed as to defendant in prior suit).
- 175 S.W.2d 315 (Tenn. 1943).
- Id. at 316 (internal quotation marks omitted). Fultz quotes Gibson’s Suits in Chancery, which according to the Fultz court relied upon an old case published in the Tennessee Chancery Reports and not electronically available.
- 385 S.W.2d 101 (Tenn. 1964).
- Id. at 102.
- 16 S.W.3d 783 (Tenn. Ct. App. 1999).
- Id. at 790.
- Cf., e.g., 2 William Blackstone Commentaries *355 (stating that privies must not only relate to, but claim through, the chief holder of the right).
- Fultz v. Fultz, 175 S.W.2d 315, 315 (Tenn. 1943).
- Id. at 316.
- See Cockburn v. Howard Johnson Inc., 385 S.W.2d 101, 102 (Tenn. 1964); Roy v. Diamond, 16 S.W.3d 783, 785–86 (Tenn. Ct. App. 1999).
- But see Comcast of the S. v. Elec. Power Bd. of Chattanooga, No. E2008-01788-COA-R3-CV, 2009 WL 1328336, at *6 (Tenn. Ct. App. May 13, 2009) (finding company and its trade association to be same, despite question about association’s standing); Fid. & Guar. Life Ins. Co. v. Corley, No. W2002-02633-COA-R9-CV, 2003 WL 23099685, at *5–6 (Tenn. Ct. App. Dec. 31, 2003) (finding two claimants to insurance proceeds the same after filing of interpleader).
- Tallent v. Sherrell, 184 S.W.2d 561, 563 (Tenn. Ct. App. 1944) (“The test of the question of subject matter is whether the judgment in the first suit could be pleaded to the second suit in bar.”).
- 281 S.W.3d 363 (Tenn. 2009).
- Id. at 380.
- Compare Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658, 662 (Tenn. 1904) (applying old rules, under which difference in requested relief relevant) with Restatement (Second) of Judgments § 25 (relief requested irrelevant).
- Tillman v. City of Germantown, 601 S.W.2d 35, 37 (Tenn. Ct. App. 1980) (barring second action on what were available defenses in first). Tillman was a civil plaintiff in the second action and a criminal defendant in the first; where the same party is the plaintiff in both actions, “could have raised” must be interpreted in a claim-splitting sense. Interpreting it as encompassing any claim that could have been previously joined would overthrow Rule 18.
- See, e.g., West v. Vought Aircraft Indus. Inc., 256 S.W.3d 618, 620 (2008); Hall v. Balance, 497 S.W.2d 409, 410 (Tenn. 1973); Am. Lava Corp. v. Savena, 476 S.W.2d 639, 640 (Tenn. 1972); Hamilton Nat’l Bank of Chattanooga v. Champion, 303 S.W.2d 731, 734 (Tenn. 1957); Williamson v. Laughlin, 241 S.W.2d 576, 577 (Tenn. 1951); Haley v. Doochin, 208 S.W.2d 756, 756–57 (Tenn. 1948); Fultz v. Fultz, 175 S.W.2d 315, 315 (Tenn. 1943). See also Tillman, 601 S.W.2d at 37.
- Metro. Hous. & Dev. Agency v. Brown Stove Works Inc., 637 S.W.2d 876, 877 (Tenn. Ct. App. 1982).
- Id. at 882.
- See Patrick v. Hardin. 385 S.W.2d 905, 907 (Tenn. 1964) (“the pendency of an action in a court without jurisdiction of the subject matter is not a bar to an action in the proper court”). One might reconcile Patrick and Brown Stove Works by noting that the former dealt with subject-matter jurisdiction and the latter with personal jurisdiction: the Bradley County chancellor certainly had subject-matter jurisdiction over a UCC dispute.
- The permissive character of Tennessee Rule of Civil Procedure 18.01, among other concerns, councils against applying the doctrine so as to deprive plaintiffs of their choice of forum absent the potential for res-judicata problems.
- West, 256 S.W.3d at 621–22.
- See, e.g., Estate of McFerren v. Infiniti Transp. LLC, 197 S.W.3d 743, 746 (Tenn. Sp. Workers’ Comp. A.P. 2006); Am. Lava Corp. v. Savena, 476 S.W.2d 639, 640 (Tenn. 1972); Haley v. Doochin, 208 S.W.2d 756, 757 (Tenn. 1948).
- See Cockburn v. Howard Johnson Inc., 385 S.W.2d 101, 102 (Tenn. 1964). Cf. Sparry’s Case, (1591) 77 Eng. Rep. 148, 149–50 (Exch.) (noting that suits pending in any of the King’s courts could be pled in abatement of a subsequent suit filed in a different such court).
- E.g., EEOC v. Univ. of Penn., 850 F.2d 969, 971–72 (3d Cir. 1988).
- E.g., West, 256 S.W.3d at 623.
- See Tillman v. City of Germantown, 601 S.W.2d 35, 37 (Tenn. Ct. App. 1980) (chancery and city courts). See also Hampton v. Tenn. Truck Sales Inc., 993 S.W.2d 643, 646 (Tenn. Ct. App. 1999) (implying in dicta that rule would apply where one action pended in appellate and another in trial court).
- See Patrick v. Hardin, 385 S.W.2d 905, 907 (Tenn. 1964) (“the pendency of an action in a court without jurisdiction of the subject matter is not a bar to an action in the proper court”).
- See generally Gibson’s Suits in Chancery § 49.13 (8th ed. 2004). Although, as noted supra in the discussion of Brown Stove Works, the question may arise in other contexts.
- Hamilton Nat’l Bank of Chattanooga v. Champion, 303 S.W.2d 731, 734 (Tenn. 1957).
- See, e.g., Casone v. State, 140 S.W.2d 1081, 1083 (Tenn. 1940); Young v. Kittrell, 833 S.W.2d 505, 508 (Tenn. Ct. App. 1992); Metro. Dev. & Hous. Agency v. Brown Stove Works Inc., 637 S.W.2d 876, 879 (Tenn. Ct. App. 1982).
- See Brown Stove Works, 637 S.W.2d at 879 (Tennessee has a single Chancery Court sitting in various counties); Mid-S. Milling Co. v. Loret Farms Inc., 521 S.W.2d 586, 590 (Tenn. 1975) (Tennessee has a single Circuit Court sitting in various counties).
- E.g., Wilson v. Schwind, 260 S.W.3d 454, 460 (Tenn. Ct. App. 2007).
- Perry v. Young, 182 S.W. 577, 580 (Tenn. 1916).
- See Hubbs v. Nichols, 298 S.W.2d 801, 804 (Tenn. 1956).
- See Pitts v. Villas of Frangista Owners’ Ass’n Inc., No. M2010-01293-COA-R3-CV, slip op. at 5–6 (Tenn. Ct. App. Sep. 20, 2001).
- See, e.g., Am. Lava Corp. v. Savena, 476 S.W.2d 639, 640 (Tenn. 1972).
- See Wilson, 260 S.W.3d at 455 (sustaining motion to dismiss).
- West. v. Vought Aircraft Indus. Inc., 256 S.W.3d 618, 622 (2008).
- See, e.g., Kizer v. Bellar, 241 S.W.2d 561, 561 (Tenn. 1951).
- Walker v. Vandiver, 181 S.W. 310, 310–11 (Tenn. 1915).
PAUL J. KROG is an associate at Leader, Bulso & Nolan PLC in Nashville. He is a 2010 magna cum laude graduate of the University of Notre Dame Law School. Originally from Memphis, he now lives with his wife and daughter in Nashville, where he has encountered the prior-suit-pending doctrine in the Chancery Court and the Court of Appeals.