                                                                                                  07/12/2017
                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                        June 29, 2017 Session

      KEVIN CASH v. TURNER HOLDINGS LLC A/K/A PRAIRIE FARMS
                            DAIRY INC.

                       Appeal from the Circuit Court for Shelby County
                         No. CT-001140-15 James F. Russell, Judge
                          ___________________________________

                                 No. W2016-02288-COA-R3-CV
                             ___________________________________


This case involves the application of the doctrine of res judicata. Appellant filed a
complaint against appellee alleging retaliatory discharge, fraud, and intentional infliction
of emotional distress in the first lawsuit. The trial court granted appellee’s Rule 12.02(6)
motion to dismiss “in its entirety.” Appellant thereafter filed a second lawsuit against
appellee alleging the same causes of action. The trial court granted summary judgment to
appellee based on the doctrine of res judicata. Discerning no error, we affirm.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which BRANDON
O. GIBSON, and KENNY ARMSTRONG, JJ., joined.

Terrell L. Tooten, Cordova, Tennessee, for the appellant, Kevin Cash.

Robert D. Meyers and Meghan K. McMahon, Memphis, Tennessee, for the appellee,
Turner Holdings LLC a/k/a Prairie Farms Dairy Inc.


                                   MEMORANDUM OPINION1

1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
                                             BACKGROUND

        Because this case was decided on summary judgment, the facts are largely
undisputed and are taken from the statement of undisputed facts contained in the record.
On July 31, 2014, Kevin Cash filed a complaint in the Shelby County Circuit Court
against his former employer, Turner Holdings LLC a/k/a Prairie Farms Dairy Inc.
(“Turner”), alleging retaliatory discharge, fraud, and intentional infliction of emotional
distress stemming from an alleged on-the-job injury for which Mr. Cash filed a worker’s
compensation claim.2 On August 25, 2014, Turner filed a Rule 12.02(6) motion to
dismiss Mr. Cash’s claims for failure to state a claim upon which relief can be granted,
citing the exclusive remedy provisions of the Tennessee Workers’ Compensation law,
Mr. Cash’s failure to “plead direct factual allegations,” and the applicable statute of
limitations. On October 14, 2014, Mr. Cash filed an amended complaint in order to
correct any deficiencies. The trial court held a hearing on the motion on November 7,
2014, made oral rulings at the conclusion of the hearing, and granted Turner’s motion to
dismiss. The trial court entered an order on November 20, 2014, with a transcript of the
hearing attached as an exhibit, “grant[ing the motion] in its entirety” and dismissing the
case.

       Approximately six months later, on March 18, 2015, Mr. Cash filed the instant
complaint in the same court alleging the same causes of action against Turner. On April
15, 2015, Turner filed an answer, denying all material allegations contained in the
complaint and raising various defenses. On June 3, 2015, Turner filed a motion for
summary judgment, asserting that Mr. Cash’s claims were barred by the doctrine of res
judicata because “the November 2014 order was a final adjudication on the merits, the
parties in the two lawsuits are the same, and [Mr. Cash]’s claims in both lawsuits are
similar and based on the same factual allegations.” Several contentious filings ensued.

        On September 23, 2016, the trial court conducted a hearing on Turner’s motion for
summary judgment. In its ruling, the trial court clarified that the sole issue before it was
whether the grant of the motion to dismiss was a final order dismissing the prior case on
the merits. The trial court concluded that Mr. Cash’s claims in the instant case were
barred by the doctrine of res judicata, granted Turner’s motion for summary judgment,
and dismissed the case “in its entirety on the merits with prejudice.” On October 4, 2016,
the trial court entered an order granting summary judgment to Turner. The trial court
attached its oral ruling from the hearing as an exhibit. Mr. Cash timely appealed.


        2
          Mr. Cash initially pursued worker’s compensation claims in the Shelby County Chancery Court,
along with the retaliatory discharge, fraud, and intentional infliction of emotional distress claims. Mr.
Cash voluntarily nonsuited the retaliatory discharge, fraud, and intentional infliction of emotional distress
claims, leaving only the worker’s compensation claims remaining in chancery court.
                                                   -2-
                                          ISSUES

       Mr. Cash raises the following issues for our review:

       1. Whether the trial court erred when it determined that the cause of action
       was dismissed on the merits.
       2. Whether the trial court erred when it concluded that it issued a final order
       on November 20, 2014.

                                  STANDARD OF REVIEW

       This case was decided on a motion for summary judgment. Summary judgment is
appropriate where: (1) there is no genuine issue with regard to the material facts relevant
to the claim or defense contained in the motion; and (2) the moving party is entitled to
judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P. 56.04. In cases
where the moving party does not bear the burden of proof at trial, the movant may obtain
summary judgment if it:

       (1) Submits affirmative evidence that negates an essential element of the
       nonmoving party’s claim; or
       (2) Demonstrates to the court that the nonmoving party’s evidence is
       insufficient to establish an essential element of the nonmoving party’s
       claim.

See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015),
cert. denied, 136 S. Ct. 2452, 195 L. Ed. 2d 265 (2016).

       On appeal, this Court reviews a trial court’s grant of summary judgment de novo
with no presumption of correctness. Rye, 477 S.W.3d at 250 (citing Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997)). In reviewing the trial court’s decision, we must view all
of the evidence in the light most favorable to the nonmoving party and resolve all factual
inferences in the nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn.
1999); Muhlheim v. Knox Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the
undisputed facts support only one conclusion, then the court’s summary judgment will be
upheld because the moving party was entitled to judgment as a matter of law. See White
v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150,
153 (Tenn. 1995). When a moving party has filed a properly supported motion for
summary judgment, the nonmoving party must respond by pointing to evidence that
shows summary judgment is inappropriate. Rye, 477 S.W.3d at 264–65. As the
Tennessee Supreme Court explained:


                                            -3-
      When such a motion is made, any party opposing summary judgment must
      file a response to each fact set forth by the movant in the manner provided
      in Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made
      [and] . . . supported as provided in [Tennessee Rule 56],” to survive
      summary judgment, the nonmoving party “may not rest upon the mere
      allegations or denials of [its] pleading,” but must respond, and by affidavits
      or one of the other means provided in Tennessee Rule 56, “set forth specific
      facts” at the summary judgment stage “showing that there is a genuine issue
      for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than
      simply show that there is some metaphysical doubt as to the material facts.”
      Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The
      nonmoving party must demonstrate the existence of specific facts in the
      record which could lead a rational trier of fact to find in favor of the
      nonmoving party. If a summary judgment motion is filed before adequate
      time for discovery has been provided, the nonmoving party may seek a
      continuance to engage in additional discovery as provided in Tennessee
      Rule 56.07. However, after adequate time for discovery has been provided,
      summary judgment should be granted if the nonmoving party’s evidence at
      the summary judgment stage is insufficient to establish the existence of a
      genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The
      focus is on the evidence the nonmoving party comes forward with at the
      summary judgment stage, not on hypothetical evidence that theoretically
      could be adduced, despite the passage of discovery deadlines, at a future
      trial.
Id.

                                      DISCUSSION

       The issues in this case concern the application of the doctrine of res judicata. As
recently explained by our Supreme Court:

               “The doctrine of res judicata, also referred to as claim preclusion,
      bars a second suit between the same parties or their privies on the same
      cause of action with respect to all issues which were or could have been
      litigated in the former suit.” Creech v. Addington, 281 S.W.3d 363, 376
      (Tenn. 2009) (citing Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn.
      1987)). “The primary purposes of the doctrine are to promote finality in
      litigation, prevent inconsistent or contradictory judgments, conserve legal
      resources, and protect litigants from the cost and vexation of multiple
      lawsuits.” Id. (citing Sweatt v. Tenn. Dep’t of Corr., 88 S.W.3d 567, 570
      (Tenn. Ct. App. 2002)).
              “The party asserting a defense predicated on res judicata must
      demonstrate (1) that the underlying judgment was rendered by a court of
                                           -4-
        competent jurisdiction, (2) that the same parties or their privies were
        involved in both suits, (3) that the same claim or cause of action was
        asserted in both suits, and (4) that the underlying judgment was final and on
        the merits.” Long, 435 S.W.3d at 183 (citing Lien v. Couch, 993 S.W.2d
        53, 56 (Tenn. Ct. App. 1998); Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct.
        App. 1990)). A trial court’s decision regarding the application of res
        judicata presents a question of law which we review de novo without a
        presumption of correctness. Id. (citing Jackson v. Smith, 387 S.W.3d 486,
        491–92 (Tenn. 2012); In re Estate of Boote, 198 S.W.3d 699, 719 (Tenn.
        Ct. App. 2005)).

Napolitano v. Bd. of Prof’l Responsibility, --- S.W.3d ----, No. M2016-00869-SC-R3-
BP, 2017 WL 2265593, at *11 (Tenn. May 24, 2017).

        Mr. Cash does not dispute that elements (1), (2), and (3) have been met. Rather,
he contends that there was no final judgment on the merits based on the following
grounds: (1) that the trial court’s order did not dismiss his complaint on the merits; and
(2) the November 20, 2014 order dismissing his complaint was not a final order.

       We first address whether the trial court erred in its determination that the
November 20, 2014 order was concluded on the merits. Although not stated as such, we
perceive Mr. Cash’s argument to be that the trial court’s November 20, 2014 dismissal of
his amended complaint was based on the insufficiency of the complaint, i.e., the failure to
plead sufficient facts, and therefore was not on the merits.3 As the Tennessee Supreme
Court has explained:



        3
           In the argument section of his brief, Mr. Cash takes issue with the fact that the trial court “based
[its ruling] on the belief that [the ground of retaliatory discharge] was not properly pled in the [a]mended
[c]omplaint.” As support, Mr. Cash cites the transcript of the November 7, 2014 hearing, during which
the trial court made the comment:

                 First of all, the Court notes that it has not been argued here that the Tennessee
        courts actually recognized a cause of action for wrongful discharge predicated upon an
        employee actually making a workers’ compensation claim, see Clanton, C-L-A-N-T-O-
        N, versus Cain-Sloan Company found at 677 S.W.2d 44[1], a 1984 decision of the
        Tennessee Supreme Court where such a cause of action was actually recognized and is
        viable.
                 A careful reading of both the original Complaint and the Amended Complaint
        would reveal that the facts pled simply do not bring this cause of action within the four
        corners of what is recognized in Clanton versus Cain-Sloan and cannot be considered in
        light of the holding in that case.

(emphasis added). Based on this oral ruling, Mr. Cash argues that the trial court did not consider the
retaliatory discharge claim on the merits.
                                                    -5-
       In Tennessee, any dismissal of a claim other than a dismissal for lack of
       jurisdiction, for lack of venue, or for lack of an indispensable party
       “operates as an adjudication upon the merits,” unless the trial court
       specifies otherwise in its order for dismissal. Tenn. R. Civ. P. 41.02(3).
       Guided by this rule, the Court of Appeals has held that an order granting a
       motion to dismiss for failure to state a claim upon which relief can be
       granted under Tennessee Rule of Civil Procedure 12.02(6) is an
       adjudication on the merits. Boyd v. Prime Focus, Inc., 83 S.W.3d 761, 766
       (Tenn. Ct. App. 2001), perm. to app. denied (Tenn. 2002). We agree with
       that assessment. Unlike the dismissal of a complaint on procedural or
       technical grounds, “[t]he sole purpose of a Tenn. R. Civ. P. 12.02(6) motion
       to dismiss is to test the legal sufficiency of the complaint.” Dobbs v.
       Guenther, 846 S.W.2d 270, 273 (Tenn. Ct. App. 1992) (citing Sanders v.
       Vinson, 558 S.W.2d 838, 840 (Tenn. 1977); Holloway v. Putnam C[nty.],
       534 S.W.2d 292, 296 (Tenn. 1976)).

Creech v. Addington, 281 S.W.3d 363, 378 (Tenn. 2009). Here, Turner sought to
dismiss Mr. Cash’s complaint based on the failure to state a claim for which relief could
be granted as to all of the claims, and the trial court granted Turner’s motion “in its
entirety” in its November 20, 2014 order. As discussed above, a Rule 12.02(6) motion
“tests the legal sufficiency of the complaint” and therefore the grant of the motion
operates as an adjudication on the merits. See Boyd, 83 S.W.3d at 766; Dobbs, 846
S.W.2d at 273. Furthermore, the dismissal of Mr. Cash’s complaint was for failure to
state a claim upon which relief could be granted, not for lack of jurisdiction, venue, or
indispensable party. Despite Mr. Cash’s contention otherwise, the trial court need not
specify in its order for dismissal that the order operated as an adjudication upon the
merits. In the absence of specific language designating otherwise, the trial court’s
November 20, 2014 judgment granting the Rule 12.02(6) motion to dismiss brought by
Turner was, therefore a judgment on the merits for res judicata purposes.

       Mr. Cash next argues that the trial court erred in concluding that the November 20,
2014 order is a final order. A judgment is final “‘when it decides and disposes of the
whole merits of the case leaving nothing for the further judgment of the court.’”
Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 460 (Tenn. 1995) (quoting
Saunders v. Metro. Gov’t of Nashville & Davidson Cnty., 383 S.W.2d 28, 31 (Tenn.
1964)). “In the absence of an express direction of the court to the contrary, a judgment
that disposes of only some of the claims, issues, or parties is not a final judgment and is
subject to revision by the court at any time before the entry of a final judgment
adjudicating all claims and the rights and liabilities of all parties.” Creech v. Addington,
281 S.W.3d 363, 377 (Tenn. 2009) (citing Tenn. R. Civ. P. 54.02; Tenn. R. App. P. 3(a)).
Generally, “a trial court’s judgment becomes final thirty days after its entry unless a party
files a timely notice of appeal or specified post-trial motion.” Id. (citing State v.

                                            -6-
Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); Tenn. R. App. P. 4(a)-(c)); see also
McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn. Ct. App. 1991).

        Here, Mr. Cash argues that the trial court incorrectly based its ruling on the
application of the elements for a retaliatory discharge claim rather than the elements for a
retaliatory discharge for filing a worker’s compensation claim. According to Mr. Cash,
the trial court’s failure to address the retaliatory discharge for filing a worker’s
compensation claim rendered the November 20, 2014 order not final. We respectfully
disagree. The fact that the trial court might have erred in its application of the elements
to Mr. Cash’s claim would not have affected the finality of the November 20, 2014 order
based on the order’s unambiguous language “grant[ing Turner’s motion to dismiss] in its
entirety” and disposing of the entire case. Clearly, this ruling includes the retaliatory
discharge claim as alleged in Mr. Cash’s complaint and amended complaint. In addition,
the transcript of the November 7, 2014 hearing indicates that the trial court discussed and
rejected each of Mr. Turner’s claims. Accordingly, at the time of the entry of the
November 20, 2014 order, Mr. Cash had no remaining claims pending against Turner
notwithstanding the trial court’s alleged error.4 Additionally, nothing in the record
indicates that Mr. Cash appealed the dismissal of the October 14, 2014 amended
complaint. Since the November 20, 2014 order was not appealed, it became a final
judgment thirty days after its entry. Tenn. R. Civ. P. 59.02. Once this order became
final, the doctrine of res judicata operated to bar Mr. Cash from asserting the same claims
against Turner in a subsequent action, i.e., the March 18, 2015 complaint. As such, we
conclude that the dismissal of the October 14, 2014 amended complaint is now final
because more than thirty days have passed since the entry of the order. This element is,
therefore, clearly met.

       Because Mr. Cash does not contest any of the other elements required to establish
the applicability of the doctrine of res judicata in his appellate brief, we decline to address
them. Cf. Hippe v. Miller & Martin, PLLC, No. M2014-01184-COA-R3-CV, 2015 WL
2257175, at *2 (Tenn. Ct. App. May 12, 2015) (limiting its consideration to only the
element contested by the appellant in his appellate brief); see also Watson v. Watson, 309
S.W.3d 483, 497 (Tenn. Ct. App. 2009) (citing Tenn. R. App. P. 13(b)) (“The appellate
court may treat issues that are not raised on appeal as being waived.”). Consequently, we
conclude that the trial court correctly determined that the remaining elements were met.
The grant of summary judgment by the trial court is affirmed.

                                            CONCLUSION

      The judgment of the Shelby County Circuit Court is affirmed, and this cause is
remanded for further proceedings as are necessary and consistent with this Opinion.

        4
         We need not decide whether the trial court’s rulings in its November 20, 2014 order are correct,
however, for purposes of whether res judicata applies.
                                                  -7-
Costs of this appeal are taxed to the Appellant, Kevin Cash, for which execution may
issue if necessary.



                                              _________________________________
                                              J. STEVEN STAFFORD, JUDGE




                                        -8-
