Orlando Residence, LTD. v. Nashville Lodging Company, Nashville Residence Corp., and Kenneth E. Nelson ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 28, 2011 Session
ORLANDO RESIDENCE, LTD. v. NASHVILLE LODGING COMPANY,
NASHVILLE RESIDENCE CORP., AND KENNETH E. NELSON
Direct Appeal from the Chancery Court for Davidson County
No. 92-3086-III Ellen Hobbs Lyle, Chancellor
No. M2011-00911-COA-R3-CV - Filed December 9, 2011
This appeal centers on the effective date of a judgment against Appellant–2000 or 2004.
Appellant argues that both the equitable estoppel and law of the case doctrines bar Plaintiff
from arguing that the judgment was entered in 2004, and therefore, that it has not expired.
The trial court found that the judgment had not expired, and we affirm.
Tenn. R. App. P. Appeal as of Right; Judgment of the Chancery Court Affirmed
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.
Kenneth E. Nelson, Cary, North Carolina, pro se
Eugene N. Bulso, Jr., Steven A. Nieters, Nashville, Tennessee, for the appellee, Orlando
Residence, Ltd.
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
This is the fifth time this Court has addressed the merits of this case on appeal. The
facts of the case have not changed, and therefore, we adopt the factual background and
procedural history as previously set forth:
“The seeds of the present dispute were sown in 1981 when Samuel H.
Hardige hired Kenneth E. Nelson to oversee one of his businesses. Mr.
Hardige fired Mr. Nelson a short time later, thereby precipitating considerable
litigation between Mr. Nelson and various business entities owned by Mr.
Hardige. When the litigation was eventually settled, Nashville Residence
Corporation (“Nashville Residence”), of which Mr. Nelson was the principal
stockholder, received a tract of land at 2300 Elm Hill Pike in Nashville. In
return, Nashville Residence and two sureties executed a $250,000 note to
Orlando Residence, Ltd. (“Orlando Residence”), a limited partnership with Mr.
Hardige as the general partner. (Footnote omitted). Thereafter Nashville
Lodging Company (“Nashville Lodging”), a Tennessee-based limited
partnership with Nashville Residence as its general partner, built a Marriott
Hotel on the Elm Hill property.
Nashville Residence defaulted on the note to Orlando Residence. In
December 1986, Orlando Residence sued Nashville Residence in the United
States District Court for the Middle District of Tennessee. Shortly after
Orlando Residence filed suit, Nashville Residence quitclaimed the Elm Hill
property to Nashville Lodging. In 1989, Nashville Lodging sold the hotel and
leased the property to Metric Partners Growth Suite Investors, L.P. (“Metric
Partners”). In March 1990, Orlando Residence obtained a judgment in federal
court against Nashville Residence for $250,000 plus interest.
Armed with its $250,000 judgment, Orlando Residence filed suit in the
Chancery Court for Davidson County against Nashville Residence, Nashville
Lodging, Mr. Nelson, and Metric Partners attacking the conveyance of the Elm
Hill property as a fraudulent conveyance. Orlando Residence eventually
succeeded with its claim and was awarded $501,934 in compensatory and
$850,000 in punitive damages from [Mr. Nelson,] Nashville Residence and
Nashville Lodging. [Mr. Nelson,] Nashville Residence and Nashville Lodging
appealed to this court.
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Orlando Residence decided to execute on its chancery court judgment
while [Mr. Nelson's,] Nashville Residence's and Nashville Lodging's appeal
was pending. In the summer of 1996, Orlando Residence moved to subject the
Elm Hill property to an execution sale. Orlando Residence purchased the
property for $100,000, and this sale was confirmed by the trial court. Three
months later, this court reversed Orlando Residence's judgment and remanded
the case for a new trial. See Orlando Residence Ltd. v. Nashville Lodging Co.,
No. 01A01–9606–CH–00256, 1996 WL 724915, at *4–7 (Tenn. Ct. App.
Dec.18, 1996), perm. app. denied concurring in results only (Tenn. May 19,
1997).
With the fraudulent conveyance judgment now vacated, Nashville
Lodging and Nashville Residence, not surprisingly, requested the trial court to
set aside the execution sale of the Elm Hill property to Orlando Residence.
They also requested the trial court to dismiss the case because Orlando
Residence lacked standing to enforce the federal court judgment. The trial
court declined to dismiss Orlando Residence's fraudulent transfer suit or to set
aside the judicial sale. After several additional skirmishes, Nashville
Residence and Nashville Lodging again appealed to this court.
Nashville Lodging also decided to try another legal tack after the trial
court denied its motion to set aside the judicial sale. It filed a new action in the
Chancery Court for Davidson County claiming that Orlando Residence was
being unjustly enriched as a result of its purchase of the Elm Hill property at
the judicial sale. This case was assigned to the trial court where Orlando
Residence's fraudulent conveyance claim was pending. Accordingly, Nashville
Lodging asserted that it was entitled to return of the property and to restitution
of all rents and profits received by Orlando Residence after the execution sale.
(Footnote omitted). Orlando Residence swiftly moved to dismiss this lawsuit
on res judicata grounds. On September 8, 1998, the trial court dismissed
Nashville Lodging's complaint. Nashville Lodging Company perfected its
second appeal to this court.
The dispute over the Elm Hill property took on a new dimension prior
to the oral arguments in both appeals. Metric Partners defaulted on a
promissory note it had signed as part of the 1989 conveyance of the property
and purchase of the hotel. (Footnote omitted). The note was secured by a first
mortgage on both the Elm Hill property and the hotel. Following the default,
the holder of the note notified the parties that it intended to foreclose on and
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sell the Elm Hill property and the hotel. The foreclosure sale was conducted
shortly after this court heard oral argument in the appeal involving Orlando
Residence's fraudulent conveyance claim. WBL II Real Estate Limited
Partnership purchased the Elm Hill property and the hotel for $9,050,000. The
trustee of the deed of trust estimated that approximately $500,000 in excess
proceeds would be distributed to the owner of the Elm Hill property after the
existing indebtedness was satisfied.
The foreclosure sale ended any possibility that either Orlando
Residence, Nashville Lodging, or Nashville Residence could recover
possession of the Elm Hill property. Accordingly, following oral argument in
its appeal from the trial court's dismissal of its unjust enrichment complaint
against Orlando Residence, Nashville Lodging moved to dismiss its appeal
from the dismissal of its unjust enrichment claim.
We dismissed the appeal because the question of whether Nashville
Lodging could recover the property was moot. . . . On August 5, 1999 [,] the
defendants filed a Motion for Partial Summary Judgment Regarding
Restitution. The defendants asked the trial court to make a decision on
Orlando Residence's liability to make restitution of the value of the land that
had been sold at the execution sale. On August 6, 1999[,] they also filed a
Motion for Partial Summary Judgment Regarding the Statute of Limitations.
In this motion, the defendants argued that Orlando Residence's original
fraudulent conveyance claim was barred by a three year statute of limitations.
The trial court ruled on both these Motions for Partial Summary Judgment in
an order filed October 6, 1999. The trial court ruled that the defendants did
indeed deserve restitution, but reserved the issue of the amount of restitution,
and also denied the motion regarding the statute of limitations.
The defendants then filed another motion regarding the amount of
restitution on October 13, 1999. The trial court granted the motion in a
Memorandum and Order filed December 9, 1999. In that order the trial court
held that the amount of restitution due the defendants was $100,000, the
successful bid at the execution sale.
The defendants renewed their Motion for Summary Judgment on the
Statute of Limitations Defense. The trial court addressed this motion in a
Memorandum and Order filed August 15, 2000. In this Memorandum and
Order the trial court held that Orlando Residence's cause of action for damages
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did not accrue until the land was sold to Metric Partners on April 24, 1989, and
that the lawsuit was filed within three years. Therefore, there was no issue as
to the statute of limitations, and this issue was withdrawn from the jury.
The second trial was held from August 21 through August 25, 2000.
The jury found that there had been a fraudulent conveyance. The jury awarded
Orlando Residence compensatory damages in the amount of $797,615 [against
Mr. Nelson, Nashville Residence, and Nashville Lodging,] but denied Orlando
Residence's claim for punitive damages. In a judgment filed September [25],
2000,1 the trial court awarded compensatory damages to Orlando Residence
in the amount of $797,615, and set restitution for [Nashville Lodging] in the
amount of $137,671, $100,000 plus interest from the date of the original sale
to Orlando Residence. The total restitution judgment amounted to $137,671.”
Orlando Residence, Ltd. v. Nashville Lodging Co., 213 S.W.3d 855, 857-859 (Tenn. Ct.
App. 2006) (“Orlando 4”)(quoting Orlando Residence Ltd. v. Nashville Lodging Co., 104
S.W.3d 848, 850-53 (Tenn. Ct. App. 2002) (“Orlando 3”); (citing Orlando Residence Ltd.
v. Nashville Lodging Co., No. 01A01-01-9606-CH-00256, 1996 WL 724915, at *1-2 (Tenn.
Ct. App. Dec. 18, 1996) (“Orlando 1”) perm. app. denied concurring in results only (Tenn.
May 19, 1997).
In the third appeal, this Court affirmed the jury's verdict finding that
Nashville Residence and Mr. Nelson acted fraudulently in transferring the
property to Nashville Lodging, and thus rejected claims by Nashville
Residence, Nashville Lodging, and Mr. Nelson that they were entitled to a
directed verdict in their favor on this issue. [Orlando 3, 104 S.W.3d] at 854.
This Court also held that the $100,000 price obtained at the execution sale of
the Inn set the value of the Inn, for restitution purposes, as a matter of law. Id.
at 855. However, in relation to the statute of limitations, this Court held that
the trial court erred in finding that Orlando Residence's cause of action for
damages against Nashville Residence, Nashville Lodging, and Mr. Nelson
arose in 1989 when Nashville Lodging conveyed the Inn to Metric. Id. at
853–5[4]. Rather, this Court held that the cause of action accrued when
Appellee knew or should have known that the Inn had initially been conveyed
from Nashville Residence to Nashville Lodging. Id. at 854. Since the issue
of when Orlando Residence knew or should have known of the conveyance
constituted a factual issue to be decided by the trier of fact, this Court
1
It appears that this Judgment was received on September 1, 2000 and filed on September 25, 2000.
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remanded this case to the trial court for determination of that issue alone. Id.
at 854–55.
Prior to the trial on the statute of limitations, both sides filed a plethora
of motions . . . . Nashville Residence, Nashville Lodging, and Mr. Nelson
moved to have all issues tried by a single jury. The trial court denied this
motion. Nashville Residence, Nashville Lodging, and Mr. Nelson
subsequently moved for summary judgment on the issue of statute of
limitations and further filed a motion to dismiss Orlando Residence's case for
lack of subject matter jurisdiction arguing that Orlando Residence lacked
standing to pursue this case. The trial court denied both motions.
Orlando 4, 213 S.W.3d at 859-61 (footnotes omitted).
Following the remand to the trial court concerning the statute of limitations, but prior
to the trial regarding such, Mr. Nelson’s alter ego, GP Credit Co., LLC,2 successfully argued
to the United States Court of Appeals for the Seventh Circuit that Orlando Residence had no
judgment lien because, it found, “[t]he trial court’s judgment having been reversed, there is
no judgment.” GP Credit Co., LLC v. Orlando Residence, Ltd., 349 F.3d 976, 981-82 (7 th
Cir. (Wis.) 2003). The Court further stated that “[t]he entry of a judgment in Orlando[
Residence’s] favor depends on a favorable outcome of the yet to be scheduled trial on
[Nashville Lodging Company’s] statute of limitations defense. Orlando has at most the
probabilistic expectation of obtaining a favorable judgment eventually, and such an
expectation is not a judgment and does not create a lien.” Id. at 982.
[Subsequently, t]he trial for the statute of limitations was held
September 27–30, 2004. . . . During this trial, Mr. Nelson failed to personally
appear and, as a result, Appellee moved to dismiss Mr. Nelson's statute of
limitations affirmative defense. The trial court granted this motion. In so
granting, the trial court held as follows:
The authoritative premise for the dismissal is the broad,
common-law authority of trial courts to control their dockets and
the proceedings, including the express authority to dismiss cases
for failure to prosecute. Hodges v. Tennessee Attorney Gen., 43
S.W.3d 918 (Tenn. Ct. App. 2000). The factual premise for the
2
See Orlando Residence, Ltd. v. GP Credit Co., LLC, 553 F.3d 550, 555 (7th Cir. 2009).
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dismissal is unfair prejudice to the plaintiff. There was no
indication to the Court or plaintiff's counsel, prior to the clerk
calling the case for trial, that defendant Nelson had decided not
to appear. All indications prior to the case being called were
that Mr. Nelson would be present in person to prosecute his
affirmative defense. The surprise to the plaintiff as well as the
failure of Mr. Nelson to appear are particularly prejudicial to the
plaintiff in this case because, in defending against the asserted
bar of the statute of limitations, the plaintiff's defense
incorporates challenging defendant Nelson's credibility and
questioning defendant Nelson about his obstruction of the
plaintiff in gaining knowledge that it had been injured. Thus, the
Court concludes that it would not be fair to allow counsel for
Mr. Nelson to prosecute Mr. Nelson's affirmative defense in Mr.
Nelson's absence.
It is therefore ORDERED that defendant Kenneth E. Nelson's
affirmative defense of the statute of limitations is dismissed with
prejudice.
At the conclusion of the trial, the jury found that Orlando Residence's action was
brought within the applicable statute of limitations.3 Prior to trial, Appellee had moved for
setoff of the $137,671 restitution judgment against it in favor of Nashville Lodging. The trial
court granted Appellee's request and, thus, the $137,671 restitution judgment in favor of
Nashville Lodging was set off against Appellee’s federal court judgment in the amount of
$1,023,838.
Orlando 4, 213 S.W.3d at 860-61 (footnote omitted). The trial court issued an Order on
October 7, 2004 stating that “The Judgment filed September 25, 2000, in favor of the
plaintiff, Orlando Residence, Ltd., against defendants Nashville Lodging Company,
Nashville Residence Corporation, and Kenneth E. Nelson, is now subject to execution in
accordance with Tenn. R. Civ. P. 62.” “After being denied relief in their subsequent post-
trial motions, Nashville Residence, Nashville Lodging, and Mr. Nelson all filed notices of
appeal, thus bringing this case before this Court for a fourth time.4 Id. at 861 (footnote
omitted).
3
It is unclear why the jury considered the statute of limitations issue when the affirmative defense had been
previously dismissed by the trial court. In any event, Orlando Residence’s action was considered timely.
4
Nashville Residence and Nashville Lodging were dismissed as parties to the appeal. Orlando 4,
213 S.W.3d at 861 n.2.
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In the fourth appeal, Mr. Nelson contended, among other things, that the trial court
erred in dismissing his statute of limitations defense due to his failure to personally appear
at trial. Id. at 864. Noting both the trial court’s finding of prejudice to Orlando Residence
and Mr. Nelson’s failure to file either a transcript of the hearing or a statement of the
evidence, we affirmed the trial court’s dismissal. Id. at 865.
Following entry of the 2004 trial court order, Orlando Residence commenced
execution of its Judgment in the Davidson County Chancery Court when it moved to subject
the proceeds of a cash bond held by the Davidson County Clerk and Master. The cash bond
proceeds were awarded to Orlando Residence on July 13, 2005. Orlando Residence then
domesticated its judgment against Mr. Nelson in Wisconsin, where he allegedly had
“substantial assets.” A Wisconsin trial court rejected Mr. Nelson’s claims that these assets
belonged to others and it determined that the amount owed on the judgment as of October
20, 2008, including interest, was $1,218,512.40. Orlando Residence v. Nelson, 323 Wis. 2d
277, 2009 WL 5126598, at *1 (Wis. App. Dec. 30, 2009) (V1, 28). The Wisconsin Court of
Appeals affirmed the interest calculation based upon Mr. Nelson’s stipulation to the
calculation at trial, and the Wisconsin Supreme Court denied review. Id. at *2.
Following entry of the Wisconsin trial court order, Orlando Residence recovered
$1,031,311.98 in cash in April and May of 2010, partially satisfying the judgment against Mr.
Nelson. Additionally, on September 9, 2010, Mr. Nelson’s former residence and a separate
parcel of property were sold at a Wisconsin sheriff’s sale for $275,000. Orlando Residence
then domesticated its judgment in North Carolina where Mr. Nelson had allegedly
established a new residence and it also filed another motion in Wisconsin to apply property
to its judgment. Mr. Nelson opposed these execution attempts by arguing, among other
things, that Orlando Residence’s Tennessee judgment had been satisfied,5 or alternatively,
that it had expired ten years after its entry in 2000.
On March 22, 2011, Orlando Residence filed a motion in the Davidson County
Chancery Court requesting that the court set the proper rate of post-judgment interest for the
period after October 20, 2008. Mr. Nelson responded by arguing that Orlando Residence had
conceded the appropriate interest rate–10 percent simple interest–and therefore, that no
justiciable issue existed. He also, again, argued that the judgment against him had expired
and that Orlando Residence should be judicially estopped from arguing to the contrary.
5
Mr. Nelson’s satisfaction argument was based upon his claim that the post-judgment interest rate
is 10% simple interest, as opposed to compound interest. In a May 16, 2011 order, the General Court of
Justice, Superior Court Division, Wake County, North Carolina, noted that Mr. Nelson had withdrawn his
earlier defense regarding satisfaction of the judgment. Similarly, we note that Mr. Nelson does not argue
on appeal that the judgment has been satisfied.
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On April 12, 2011, the Davidson County Chancery Court issued its “Memorandum
and Order” in which it determined that a justiciable controversy existed and that it was a
proper court in which to decide the issues raised. The court dismissed Mr. Nelson’s
argument that the judgment against him had expired, adopting the analysis set forth in
Orlando Residence’s memorandum, as follows:
As this Court is well aware, a Tennessee judgment is valid for ten (10)
years, and may be renewed thereafter for successive ten-year periods. See,
e.g., Tenn. R. Civ. P. 69.04. [Orlando Residence] has had a final judgment
against Nelson only since October 7, 2004. [] Its Judgment is therefore only six
and one-half years old.
Despite this fact, Nelson has now begun to take the position that
[Orlando Residence’s] Judgment has expired. According to Nelson, [Orlando
Residence] received a final judgment on September 25, 2000, and the
Judgment therefore expired on September 25, 2010. [] This argument simply
ignores the fact that the Judgment filed September 25, 2000, was reversed by
the Tennessee Court of Appeals on May 21, 2002, on the basis that this Court
should have submitted the issue of the statute of limitations to the jury. See
Orlando [3], 104 S.W.3d 848. Once the Court of Appeals reversed [Orlando
Residence’s] Judgment, it was no longer a final judgment subject to execution.
....
Because the Tennessee Court of Appeals vacated the Judgment filed
September 25, 2000, [Orlando Residence] did not obtain a final judgment in
this case until a final judgment was entered on October 7, 2004. []
Accordingly, [Orlando Residence’s] Judgment has not expired and continues
to accrue interest.
Finally, the trial court determined that the effective post-judgment interest rate is 10%,
compounded annually. It is from this order that the current appeal arises.6
6
On May 16, 2011, the General Court of Justice, Superior Court Division, Wake County, North
Carolina issued an order finding that the judgment against Mr. Nelson became final on October 7, 2004, and
therefore, that North Carolina’s ten-year statute of limitations did not bar enforcement of the judgment.
Similarly, on June 26, 2011, the Ozaukee County, Wisconsin, Circuit Court issued an order finding that the
“Tennessee judgment dates back to October 7, 2004.” However, the court noted that under Wisconsin law,
the judgment remained enforceable even if it was entered in 2000.
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II. I SSUES P RESENTED
Mr. Nelson presents the following issues for review:
1. Were the issues addressed by the trial court in its order dated April 12, 2011,
justiciable?
2. Did the trial court have subject-matter jurisdiction?
3. Does the law-of-the-case doctrine bar Orlando Residence from arguing against this
Court’s earlier holding that Orlando Residence’s judgment was entered in 2000; and
4. Does judicial estoppel bar Orlando Residence from arguing it holds a 2004 judgment
rather than a 2000 judgment?
For the following reasons, we affirm the decision of the chancery court.
III. D ISCUSSION
A. Justiciability
At the outset, we consider Mr. Nelson’s argument regarding “justiciability.” Mr.
Nelson claims that the issues of the proper post-judgment interest rate and the judgment’s
effective date were “pending before the Wisconsin court[,]” and, therefore, that “the trial
court was obligated to decline to act.”
“Tennessee courts have, since the earliest days of statehood, recognized and followed
self-imposed rules to promote judicial restraint and to provide certain criteria for determining
whether the courts should hear and decide a particular case.” Norma Faye Pyles Lynch
Family Purpose LLC v. Putnam County, 301 S.W.3d 196, 203 (Tenn. 2009). “Tennessee’s
courts believed that ‘the province of a court is to decide, not advise, and to settle rights, not
to give abstract opinions.’” Id. (quoting State v. Wilson, 70 Tenn. 204, 210 (1879)). Thus,
the courts “limited their role to deciding ‘legal controversies.’” Id. (citing White v. Kelton,
232 S.W. 668, 670 (Tenn. 1921)). “A proceeding qualifies as a ‘legal controversy’ when the
disputed issue is real and existing, and when the dispute is between parties with real and
adverse interests.” Id. (citing Memphis Publ’g Co. v. City of Memphis, 513 S.W.2d 511, 512
(Tenn. 1974)) (internal citations omitted).
Again, Mr. Nelson argues that because the issues of interest calculation and judgment
expiration had been submitted to a Wisconsin court, no justiciable issues were before the
chancery court. Mr. Nelson’s “justiciability” argument is, in fact, a flawed attempt to invoke
the doctrine of prior suit pending, which is inapplicable in this case. Under the doctrine,
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“where two courts have concurrent jurisdiction over a matter, the first of those courts to
acquire jurisdiction takes exclusive jurisdiction over it.” Estate of McFerren v. Infinity
Transport, LLC, 197 S.W.3d 743, 746 (Tenn. Workers Comp. Panel 2006). “Any
subsequent actions must, therefore, be dismissed.” Id. However, three conditions must be
met in order to invoke the doctrine: “(1) The two cases must involve identical subject matter,
and (2) The suits must be between the same parties, and (3) The former suit must be pending
in a court of this state having jurisdiction over both the subject matter and the parties.” Id.
Despite Mr. Nelson’s arguments to the contrary, it is clear that the Wisconsin action does not
invoke the prior suit pending doctrine in this case. Moreover, insofar as Mr. Nelson’s
arguments actually relate to “justiciability,” we find that the dispute between the parties as
to the appropriate post-judgment interest rate and to the judgment’s effective date presents
a “legal controversy,” and, therefore, that the decision rendered by the trial court was not
merely advisory.
B. Subject-Matter Jurisdiction
“‘The concept of subject matter jurisdiction implicates a court’s authority to hear and
decide a particular type of case.’” State ex rel. Whitley v. Lewis, 244 S.W.3d 824, 830
(Tenn. Ct. App. 2007) (quoting White v. State ex rel. Armstrong, No. M1999-00713-COA-
R3-CV, 2001 WL 134601, at *2 (Tenn. Ct. App. Feb.16, 2001)). “A court must have subject
matter jurisdiction over a matter for the matter to be adjudicated.” Tenn. Envtl. Council v.
Water Quality Control Bd., 250 S.W.3d 44, 55 (Tenn. Ct. App. 2007) (citing Meighan v.
U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn. 1996); Cashion v. Robertson, 955
S.W.2d 60, 63 (Tenn. Ct. App. 1997)). In the absence of subject matter jurisdiction, a court’s
order is not valid or enforceable. Whitley, 244 S.W.3d at 830.
Tennessee courts derive their subject matter jurisdiction from the state constitution
or from legislative acts. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Whether
subject matter jurisdiction exists in a particular case depends upon the nature of the cause of
action and the relief sought. Benson v. Herbst, 240 S.W.3d 235, 239 (Tenn. Ct. App. 2007)
(citing Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994)). Therefore, when a court’s
subject matter jurisdiction is challenged, the first step is to ascertain the gravamen or nature
of the case, and then we must determine whether the Tennessee Constitution or the General
Assembly has conferred on the court the power to adjudicate cases of that sort. Id. “Courts
may not exercise jurisdictional powers that have not been conferred on them directly or by
necessary implication.” Osborn, 127 S.W.3d at 739 (citing First Am. Trust Co. v.
Franklin–Murray Dev. Co., 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001); Dishmon v. Shelby
State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999)). “‘[W]hen an appellate court
determines that a trial court lacked subject matter jurisdiction, it must vacate the judgment
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and dismiss the case without reaching the merits of the appeal.’” Id. at 741 (quoting
Dishmon, 15 S.W.3d at 480). The determination of whether subject matter jurisdiction exists
is a question of law, and therefore, our review is de novo, without a presumption of
correctness. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (citing Nelson
v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999)).
In the case before us, Mr. Nelson argues that the chancery court lacked subject-matter
jurisdiction to consider Orlando Residence’s March 2011 motion because “no rule or statute”
gave the court “jurisdiction . . . , years after entry of a judgment, to either set the interest rate
on a judgment or to modify the date as of which a judgment was entered.” We disagree.
Both the initial September 25, 2000 Judgment and the October 7, 2004 Order subjecting the
September 25, 2000 Judgment to execution were issued by the Davidson County Chancery
Court. “‘The power to enforce its judgments is inherent in all courts, since without this
power the courts themselves would be unable to effect the ends for which they were
designed.’” State ex rel. Stall v. City of Knoxville, 365 S.W.2d 433, 435 (Tenn. 1963)
(quoting State ex rel. Conner v. Hebert, 154 S.W. 957, 962 (Tenn. 1913)); see also Ali v.
Fisher, 145 S.W.3d 557, 565 (Tenn. 2004) (remanding to the trial court to address post-
judgment interest, noting that “a plaintiff is not required to move for an award of post-
judgment interest in the trial court as the issue does not become ripe until the conclusion of
the appellate process.”). We find that the chancery court’s jurisdiction to act “with regard
to ancillary matters relating to the enforcement or collection of its judgment[,]” see First Am.
Trust Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135, 141, n.8 (Tenn. Ct. App.
2001), properly included, in this case, the authority to set the appropriate interest rate and to
clarify the judgment’s effective date.
C. Law-of-the-Case Doctrine
Having determined that a justiciable issue exists and that the chancery court properly
exercised its subject-matter jurisdiction, we now turn to the merits of the case. The central
dispute concerns the effective date of the judgment in favor of Orlando Residence–2000 or
2004–for determining whether the judgment has expired. As discussed above, Orlando
Residence contends, and the trial court agreed, that when this Court remanded for submission
of the statute of limitations issue to the jury, the September 2000 judgment was vacated, and
therefore, it was no longer a final judgment subject to execution. Only after the statute of
limitations issue was resolved, and an order of October 7, 2004 entered subjecting the
September 2000 judgment to execution, did the judgment against Mr. Nelson become final
and the ten-year period for acting on the judgment begin to run. See Tenn. Code Ann. § 28-
3-110(2). However, Mr. Nelson argues that the September 2000 order remained in effect,
and therefore that the judgment expired on September 25, 2010. He maintains that “[i]t is
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the law of the case that [Orlando Residence] obtained a judgment in 2000.”
Orlando Residence argues that Mr. Nelson did not raise the “law of the case” issue
in the trial court, and therefore, that the issue is waived on appeal. Mr. Nelson, however,
claims that this issue was raised in the trial court, and he points to the following language
included in his response to Orlando Residence’s motion to set the post-judgment interest rate:
In an attempt to argue judicial estoppel as to the date of the judgment,
[Orlando Residence] claims Nelson previously argued, successfully, in federal
court that the 2000 judgment was vacated when the Court of Appeals reversed
this Court’s decision. However in 2004, [Orlando Residence] submitted to this
Court, an order that “the Judgment filed on September 25, 2000 . . . is now
subject to execution in accordance with Tenn. R. Civ. P. 62.” The Court
executed that order. . . . [Orlando Residence] is barred by the law of the case
and equitable estoppel from changing its position now and attempting to argue
that it is attempting to enforce a different judgment entered at some other time.
We acknowledge that the “law of the case” argued in the trial court by Mr.
Nelson–Orlando Residence’s submitted order–is not the “law of the case” asserted on
appeal–the Orlando 4 decision. However, bearing in mind Mr. Nelson’s pro se status, we
find it appropriate to indulge his argument.
The “law of the case” doctrine “generally prohibits reconsideration of issues that have
already been decided in a prior appeal of the same case.” Memphis Pub. Co. v. Tenn.
Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998) (citing 5
Am. Jur.2d Appellate Review § 605 (1995)). “[U]nder the law of the case doctrine, an
appellate court’s decision on an issue of law is binding in later trials and appeals of the same
case if the facts of the second trial or appeal are substantially the same as the facts in the first
trial or appeal.” Id. (citing Life & Casualty Ins. Co. v. Jett, 133 S.W.2d 997, 998-99 (Tenn.
1939); Ladd v. Honda Motor Co., Ltd., 939 S.W.2d 83, 90 (Tenn. Ct. App. 1996)). The
doctrine’s purpose is to “promote[] the finality and efficiency of the judicial process, [to]
avoid[] indefinite relitigation of the same issue, [to] foster[] consistent results in the same
litigation, and [to] assure[] the obedience of lower courts to the decisions of appellate
courts.” Id. (citations omitted). The doctrine applies both to issues actually decided and
issues necessarily decided by implication, but it does not apply to dicta. Id. (citing Ladd, 939
S.W.2d at 90; Ridley v. Haiman, 47 S.W.2d 750, 752-53 (Tenn. 1932)).
As support for his argument that the 2000 judgment remained in effect, Mr. Nelson
relies upon language in our 2006 Orlando 4 opinion in which we stated that “this Court has
previously affirmed the 2000 judgment in Orlando 3.” Orlando 4, 213 S.W.3d at 855 (citing
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Orlando 3, 104 S.W.3d at 854). Our statement can be more fully understood by reviewing
the surrounding discussion:
[In Orlando 3], this Court specifically remanded the case for the purpose of
determining the sole issue when the statute of limitations began to run. All
other respects of the trial court’s judgment were affirmed.
....
[R]egarding Mr. Nelson’s claim that the judgment is void because it is outside
the pleadings, it appears to this Court that Mr. Nelson is attempting to overturn
the judgment rendered by the trial court on August 25, 2000, adjudicating
Nashville Lodging, Nashville Residence, and Mr. Nelson liable for engaging
in fraudulent transfer. Once again, Mr. Nelson’s argument comes too late
since this Court has previously affirmed the 2000 judgment in Orlando 3.
Having already addressed arguments related to the merits of the trial court’s
judgment regarding the fraudulent transfer, we will not do so again.
Id. (internal citations omitted). First, we note that our statement regarding affirmance
apparently relates to an August 25, 2000 judgment which is not included in the record, rather
than to the September 25, 2000 judgment at issue. However, even if we assume that the
statement somehow applies to the judgment at issue in this appeal,7 our statement cannot be
construed as an affirmance of the September 2000 judgment in toto, as Mr. Nelson contends.
Instead, reviewing our discussion as a whole, it is clear that the affirmance language simply
explained that the fraudulent transfer issue could not be re-opened as that portion of the
September 2000 judgment had been affirmed, subject to the outcome-determinative statute
of limitations issue on remand. Simply put, there is no law of the case that the September
2000 judgment remained effective following Orlando 3. This issue is without merit.
D. Estoppel
Finally, Mr. Nelson argues that Orlando Residence is estopped from asserting that the
judgment became final in 2004 rather than in 2000. In his initial brief to this Court, Mr.
Nelson argued that Orlando Residence was both judicially and equitably estopped; however,
in his reply brief, he concedes that judicial estoppel is inapplicable in this case.
Orlando Residence contends that Mr. Nelson failed to raise the issue of equitable
7
The September 25, 2000 Judgment notes that the jury verdict was announced on August 25, 2000.
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estoppel in the trial court, and therefore, that the issue is waived on appeal. Mr. Nelson did
include the term “equitable estoppel” in his response to Orlando Residence’s motion to set
post-judgment interest, but he did not discuss the doctrine or set forth its requirements.
Arguably, the “equitable estoppel” term was erroneously used, as it appears in his “judicial
estoppel” section of argument. However, based on Mr. Nelson’s pro se status, and his
ostensible attempt to raise the issue in the trial court, we will consider the merits of this issue
on appeal.
The elements of equitable estoppel have been clearly set forth:
The essential elements of an equitable estoppel as related to the party estopped
are said to be (1) Conduct which amounts to a false representation or
concealment of material facts, or, at least, which is calculated to convey the
impression that the facts are otherwise than, and inconsistent with, those which
the party subsequently attempts to assert; (2) Intention, or at least expectation
that such conduct shall be acted upon by the other party; (3) Knowledge, actual
or constructive of the real facts. As related to the party claiming the estoppel
they are (1) Lack of knowledge and of the means of knowledge of the truth as
to the facts in question; (2) Reliance upon the conduct of the party estopped;
and (3) Action based thereon of such a character as to change his position
prejudicially[.]
Consumer Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn. Ct. App. 1990) (quoting
Callahan v. Town of Middleton, 292 S.W.2d 501 (Tenn. 1954)).
Mr. Nelson maintains that “for years” Orlando Residence attempted to collect on the
2000 judgment, representing that it “was a final judgment on which it was entitled to collect.”
This representation was made, according to Mr. Nelson, to cause him to “not object to post-
judgment interest commencing in 2000.” In reliance upon this representation, he allowed
interest to be calculated from 2000, resulting in a loss of “tens of thousands of dollars[.]”
However, as Orlando Residence correctly points out, the procedural history of this
case–the remand for consideration of the statute of limitations issue and the subsequent entry
of a 2004 order subjecting the 2000 judgment to execution–is a matter of public record. In
fact, Mr. Nelson’s own actions confirm that he was aware of the case history. As previously
explained, Mr. Nelson, through his alter ego, successfully argued to the Seventh Circuit, in
his brief to that Court, that “[in Orlando 3, the Tennessee Court of Appeals reversed
[Orlando Residence’s] judgment . . . . When [Orlando Residence’s] judgment was reversed
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and became unenforceable, any existing lien arising out of the judgment was extinguished.”
Based on the absence of a false representation or concealment by Orlando Residence as well
as Mr. Nelson’s knowledge of the truth as to the facts in question, we find that an equitable
estoppel claim cannot be maintained. Consumer Credit Union, 801 S.W.2d at 825 (quoting
Callahan, 292 S.W.2d 501). This issue is without merit.
IV. C ONCLUSION
For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to Appellant, Kenneth E. Nelson, for which execution may issue if
necessary.
ALAN E. HIGHERS, P.J., W.S.
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