Facts: When the parties divorced, Ex-Husband did not participate in the divorce proceedings until after the final judgment was entered by default. Only then did he move to set aside the judgment because Ex-Wife allegedly withheld his mail and forged his name on a deed to transfer a piece of real estate shortly before she sought the divorce, and he claimed that he had substantially contributed to the preservation and appreciation of the property during the marriage such that he had an interest in the property’s increase in value and the proceeds resulting from its sale.

The divorce court denied Ex-Husband’s motion, and the Court of Appeals affirmed that decision on appeal. Readers can find my post covering that appellate opinion here.

While that appeal was still pending, Ex-Husband sued Ex-Wife for conversion based on her alleged forgery of his signature on the deed conveying the property, which Ex-Wife owned before the marriage and is titled only in Ex-Wife’s name. Ex-Husband again alleged that he substantially contributed to the preservation and appreciation of the property during the marriage such that he had an interest in the property’s increase in value in the proceeds resulting from its sale.

Ex-Wife moved to dismiss Ex-Husband’s lawsuit for failure to state a claim upon which relief can be granted.

After the Court of Appeals denied Ex-Husband’s first appeal, Ex-Wife then moved to dismiss Ex-Husband’s lawsuit as an “abusive civil action” per Tennessee Code Annotated § 29-41-101, et seq., and as barred by res judicata. The trial court granted this motion and awarded Ex-Wife her reasonable attorney’s fees.

Ever the glutton for punishment, Ex-Husband appealed again.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee defines an “abusive civil action” as one between former spouses, cohabitants, sexual partners, daters, relatives, etc., that involve one of the following:

• allegations not warranted by existing law or by a reasonable argument for the modification of existing law or the establishment of new law;
• allegations without evidentiary support; or
• issues previously litigated and disposed of unfavorably to the plaintiff.

The defendant in any such action may allege that the action is an abusive civil action, which then requires the trial court to conduct a hearing to determine the merit of the defendant’s allegations. At that hearing, the court must hear all relevant testimony and may require affidavits, documentary evidence, or other records the court believes necessary.

Evidence that “the same or substantially similar issues between the same or substantially similar [] parties” have been litigated within the past five years in another court and dismissed on the merits or with prejudice against the plaintiff creates a rebuttable presumption that the action is an abusive civil action.

Upon a finding by a preponderance of the evidence that the action is an abusive civil action, the lawsuit must be dismissed, the plaintiff must pay the defendant’s attorney’s fees and expenses, and the plaintiff must be subject to prefiling restrictions.

Here, Ex-Wife created a rebuttable presumption by showing that the issues raised in the second lawsuit were previously litigated in the divorce court when Ex-Husband moved to set aside the default judgment. Ex-Husband’s effort to rebut the presumption consists of a one-page affidavit where he said he did not realize his signature “had been forged on the deed” until after Ex-Wife handed him the final judgment of divorce.

The Court found the presumption was not rebutted:

This evidence fails to overcome the presumption; his affidavit does not provide evidentiary support for his argument that the alleged forgery was not litigated in the divorce []. His affidavit only establishes when he learned of it but does not address the fact that he raised the purported forgery to the divorce court in his motion to set aside the default judgment….

Respectfully, [Ex-Husband’s] argument that “[Ex-Wife] could not have transferred the property without [Ex-Husband’s] consent” is flawed. The Notary Public’s interrogatory states that [Ex-Husband’s] signature was required by the title insurance underwriter to “convey any potential homestead, marital interest the non-vested spouse may have in the subject property.” While certainly a reasonable requirement by the title insurance underwriter to foreclose any potential issues with the chain of title in the future, [Ex-Wife] remained the sole title holder of the property, and she alone possessed the power to convey it. Even if he had proven his interest in the increase in the value of the property, there was still no need for [Ex-Husband] to consent to the sale in order for it to be effective. Even had the property not been conveyed prior to the divorce, any increase in value of the property would have been presumed to be [Ex-Wife’s] separate property as well, unless and until [Ex-Husband] put forth proof of his specific substantial contributions to the maintenance and upkeep of the property that resulted in an increase in its value. [Ex-Husband] put up no such proof in the divorce court…. [Nothing] overcome[s] the fact that [Ex-Husband] brought up this alleged forgery to the divorce court but failed to put forth any proof of his contributions to the preservation and appreciation of the property that would demonstrate his entitlement to a share of the increase in value of this separate property. This matter has been litigated and resolved in favor of [Ex-Wife].

After finding that Ex-Husband’s attempt to relitigate this issue was intended to harass or maliciously injure Ex-Wife, the Court affirmed the trial court’s dismissal of the lawsuit as an “abusive civil action” and the award of her attorney’s fees and expenses.

The Court also awarded Ex-Wife her attorney’s fees on appeal even though the statute does not expressly provide for that, explaining:

Although § 29-41-106 does not expressly provide for attorney’s fees incurred on appeal, our Supreme Court has explained that legislative provisions for an award of reasonable attorney’s fees need not make a specific reference to appellate work where the legislation has broad remedial aims.

Though these civil abuse action statutes do not include a statement of purpose or intent, we conclude that they have broad remedial aims because they are designed to give those suffering “a litigious form of domestic assault” a way to end the litigation and curb future findings by the abusive civil action plaintiff…. Because we conclude that [Ex-Husband’s] action was properly dismissed [per the abusive civil action statutes], and because Ex-Wife has requested her appellate fees in this case, she is entitled to her attorney’s fees on this alternative basis as well.

K.O.’s Comment: The Tennessee Abusive Civil Action statutes, found at Tennessee Code Annotated § 29-41-101, et seq., were enacted in 2018. This opinion is the first time they have been interpreted or applied by the appellate courts in Tennessee.

Wilson v. Wilson (Tennessee Court of Appeals, Middle Section, July 27, 2022).

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