Polyak v. Hulen

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
April 30, 1999
Cecil Crowson, Jr.
EARLENE POLYAK, ) Appellate Court Clerk
)
Plaintiff/Appellant, )
) Appeal No.
) 01-A-01-9803-CH-00133
VS. )
) Lawrence Chancery
) No. 7951-96 and 7736-95
DORA LEE HULEN and )
WILMA LESNANSKY, )
)
Defendants/Appellees. )
APPEALED FROM THE CHANCERY COURT OF LAWRENCE COUNTY
AT LAWRENCEBURG, TENNESSEE
THE HONORABLE JIM T. HAMILTON, JUDGE
EARLENE POLYAK
3179 Middlefield Drive
Trenton, Michigan 48183
Pro Se/Plaintiff/Appellant
DALTON MOUNGER
806A South Garden Street
Columbia, Tennessee 38402-1468
Attorney for Defendants/Appellees
REVERSED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
COTTRELL, J.
OPINION
This family dispute over the partition of a forty-two acre farm in
Lawrence County is well into its third decade. The Chancery Court of Lawrence
County granted judgment on the pleadings and ordered the property sold for partition.
We reverse and remand for further proceedings.
I.
Rena Hulen, the owner of the farm died in 1976. She left her property
in equal shares to her three children, Earlene Polyak, Frank Hulen, and Wilma
Lesnansky. The farm contained a small house and a barn.
In 1983 Mr. Hulen and Ms. Lesnansky filed a complaint in the chancery
Court of Lawrence County asking that the farm be sold for partition. Ms. Polyak’s
defense has always been that the parties orally agreed to partition the property so that
she would get the house and approximately ten acres on the front, Ms. Lesnansky
would get a site for her son to build a house to the north of the farmhouse, and Mr.
Hulen would get some of the property on the back next to his own farm. Apparently
Ms. Polyak lost that battle (the order from that case is not in the record), and she set
out on a journey through the federal courts, seeking to enjoin the sale of the property
and to recover damages for a host of civil rights violations. The course of this journey
is described in part in an order from the Sixth Circuit Court of Appeals filed on August
13, 1993:
This case and eight others presently before the
court (92-6345/6525; 92-6347/6528; 6526; 6527; 6529;
and 6530) had their origin in 1976 when Mrs. Polyak and
her two siblings inherited from their mother a family farm
in Lawrence County, Tennessee, as tenants in common.
Mrs. Polyak’s siblings sought and obtained a partition sale
of the property. Mrs. Polyak objected to the manner in
which the farm was divided and began protracted state
court proceedings.
Failing to prevail in state court litigation, Mrs.
Polyak began her assault on the partition sale in federal
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court in 1985. She sought monetary damages and an
order setting aside the partition sale. The defendants in
this case are Mrs. Polyak’s brother, Frank Hulen, and her
sister, Wilma Lesnansky. The defendants have long ago
stopped filing briefs in response.
Mrs. Polyak is appealing from an order entered by
the district court on October 6, 1992, in which the court
held that it would not consider any further submissions by
Mrs. Polyak to relitigate any issue regarding the parties or
the property involved in the partition sale.
In December of 1995 Ms. Polyak filed a complaint in the Chancery Court
of Lawrence County against Ms. Lesnansky and Mr. Hulen. The basis for the
complaint was the “settlement by agreement” of the parties in 1976. The complaint
went on to describe expenses Ms. Polyak had incurred in working on the house, how
her appeal of the order of sale was inadvertently lost, how the tobacco allotment was
transferred to another (unspecified) farm, and how the whole ordeal had caused her
stress, anxiety, and embarrassment. She prayed for $250,000 in compensatory
damages, $250,000 in punitive damages, and a deed to the house and ten acres.
In February of 1996 Mr. Hulen and Ms. Lesnansky, acting pro se, moved
to dismiss the complaint under Rule 12.06, Tenn. R. Civ. Proc., for failure to state a
claim. The court entered an order on February 21, 1996 containing the following
findings:
It appears to the Court that the plaintiff will pursue
any means to re-litigate the previous and related issues
that were involved or which arose out of the same
transactions and occurrences that were involved in
lawsuits already adjudicated in this Court, including, in this
instance, attempting to bring in as defendants the
plaintiffs in the original lawsuit in which the plaintiff herein,
Earlene Polyak, was a defendant. That lawsuit was filed
in the Chancery Court of Lawrence County, Tennessee,
bearing Action No. 1974. The Court takes judicial notice
from the public record that plaintiff herein, Earlene Polyak,
has already litigated this dispute with the defendants
named herein, in this and several other courts, and the
averments therein appear to be largely the same as in this
particular case. The original case was appealed to the
Tennessee Court of Appeals and to the Tennessee
Supreme Court. As mentioned, the dispute has also been
filed by plaintiff in numerous courts across the United
States of America and has even been pursued to the
United States Supreme Court. It appears from the record,
the Court’s judicial notice of prior matters of public record,
and defendants’ motion that plaintiff’s action is frivolous,
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filed in bad faith, vexatious and otherwise should be
dismissed, fails to state a claim upon which relief can be
granted and is barred.
The Court, therefore, on defendants’ Motion, and
also sua sponte, dismisses this lawsuit filed by the
plaintiff, Earlene Polyak, against the defendants, Frank
Hulen and Wilma Lesnansky. Court costs are taxed to
plaintiff.
In May of 1996 Ms. Lesnansky and Dora Lee Hulen filed a complaint in
the Chancery Court of Lawrence County seeking a sale of the farm for partition. The
complaint alleged that Frank Hulen died on April 11, 1996 and that Dora Lee Hulen
was the sole beneficiary under his will.
Ms. Polyak filed an answer and counterclaim containing the same
allegations she pressed in the complaint just recently dismissed. She then filed a
notice of removal in the Columbia Division of the United States District Court. The
district court remanded the state claims to the chancery court after dismissing the
federal claims in the counterclaim.
In the meantime, Ms. Hulen and Ms. Lesnansky had moved to dismiss
the counterclaim for failing to state a claim on which relief can be granted. They also
moved for judgment on the pleadings. On February 10, 1998 the chancellor entered
an order dismissing the counterclaim and another order granting judgment on the
pleadings. The next day the chancellor entered an order ordering the clerk and
master to sell the property described in the complaint.
The two cases have been consolidated on appeal. Both cases were
disposed of on motions to dismiss, either for failure to state a claim under Rule
12.02(6), Tenn. R. Civ. Proc. or for judgment on the pleadings under Rule 12.03. Our
problem stems from the fact that the chancellor sustained both motions on the ground
of res judicata, but the record on appeal does not contain the support for that ruling.
In fact, the defense of res judicata has not even been raised in either proceeding.
-4-
As we said in Gregory v. Gregory, 803 S.W.2d 242 (Tenn. App. 1990),
the defense must be pled and the party raising the defense must prove it. “To carry
that burden, the party raising the defense must generally put in evidence the record
or a copy of the record of the former case . . . . If the record does not conclusively
show that a particular matter was determined in a former proceeding, the party relying
on res judicata as a defense must supplement the record by other proof.” Id. at 244.
We have also searched the records of this court for evidence on which
we could base a decision, but we have only found evidence that Ms. Polyak attempted
to appeal a 1983 decision and the appeal was dismissed for the lack of a final
judgment. Therefore, on the basis of what we have before us, we cannot sustain a
judgment on the pleadings or a judgment of dismissal for failure to state a claim. On
remand the appellees may be able to establish a record showing they are entitled to
the relief sought.
The judgments entered in the two cases from the lower court are
reversed and the causes are remanded to the Chancery Court of Lawrence County
for further proceedings. Tax the costs on appeal to the appellees.
_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
PATRICIA J. COTTRELL, JUDGE