                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                   July 21, 2011 Session

           JEANETTE RAE JACKSON v. BRADLEY KENT SMITH

             Direct Appeal from the Chancery Court for McNairy County
                      No. 8710     William C. Cole, Chancellor


               No. W2011-00194-COA-R3-CV - Filed September 9, 2011


This is a grandparent visitation case. Following the death of her daughter (the minor child’s
mother), the Appellant grandmother petitioned the trial court for visitation rights with her
granddaughter pursuant to Tennessee Code Annotated Section 36-6-306. The trial court
denied visitation based upon its finding that Appellant had not carried her burden to
demonstrate a danger of substantial harm to the child. No appeal was taken from this order.
Subsequently, the Legislature amended Tennessee Code Annotated Section 36-6-306 to
create a rebuttable presumption of substantial harm based upon the cessation of the
relationship between the child and grandparent. After the law was changed, Appellant filed
a second petition for visitation with her granddaughter, citing the amended statute as grounds
for re-visiting the issue of visitation. The trial court granted Appellee father’s Tennessee
Rule of Civil Procedure 12.02 motion to dismiss the second petition on the ground of res
judicata. We conclude that the doctrine of res judicata may apply even though there has
been an intervening change in the substantive law. However, because the prior order, upon
which the trial court based its res judicata finding, is not in the appellate record, this Court
cannot review the question of whether the motion to dismiss was properly granted.
Affirmed.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.

Andrea D. Sipes, Jackson, Tennessee and Carma D. McGee, Savannah, Tennessee, for the
appellant, Jeanette Rae Jackson.

Curtis F. Hopper, Savannah, Tennessee, for the appellee, Bradley Kent Smith.

                                          OPINION
        Appellant Jeanette Rae Jackson is the maternal grandmother of M. K. S. (d.o.b.
November 27, 2006). Appellee Bradley Kent Smith is M.K.S.’s biological father. In April
2009, the minor child’s mother, Stephanie Lynn Smith (who is Ms. Jackson’s daughter), was
killed in a car accident. Following Ms. Smith’s death, Mr. Smith would not allow Ms.
Jackson visitation with the minor child.

       On April 27, 2009, Ms. Jackson filed a petition for grandparent’s visitation in the
Chancery Court of McNairy County pursuant to Tennessee Code Annotated Section 36-6-306
(the “Grandparent Visitation Statute”). This petition is not part of the appellate record.

       At the time Ms. Jackson filed her petition, the Grandparent Visitation Statute read, in
relevant part, as follows:

              (a) Any of the following    circumstances, when presented in a
              petition for grandparent    visitation to the circuit, chancery,
              general sessions courts.     . .necessitates a hearing if such
              grandparent visitation is   opposed by the custodial parent or
              parents:

              (1) The father or mother of an unmarried minor child is
              deceased;
                                      ***

              (5) The child resided in the home of the grandparent for a period
              of twelve (12) months or more and was subsequently removed
              from the home by the parent or parents (this
              grandparent-grandchild relationship establishes a rebuttable
              presumption that denial of visitation may result in irreparable
              harm to the child); or
              (6) The child and the grandparent maintained a significant
              existing relationship for a period of twelve (12) months or more
              immediately preceding severance of the relationship, this
              relationship was severed by the parent or parents for reasons
              other than abuse or presence of a danger of substantial harm to
              the child, and severance of this relationship is likely to occasion
              substantial emotional harm to the child.

              (b)(1) In considering a petition for grandparent visitation, the
              court shall first determine the presence of a danger of substantial

                                              -2-
                harm to the child. Such finding of substantial harm may be
                based upon cessation of the relationship between an unmarried
                minor child and the child's grandparent if the court determines,
                upon proper proof, that:

                (A) The child had such a significant existing relationship with
                the grandparent that loss of the relationship is likely to occasion
                severe emotional harm to the child;

                                                 ***

                (C) The child had a significant existing relationship with the
                grandparent and loss of the relationship presents the danger of
                other direct and substantial harm to the child.

                (2) For purposes of this section, a grandparent shall be deemed
                to have a significant existing relationship with a grandchild if:

                (A) The child resided with the grandparent for at least six (6)
                consecutive months;
                (B) The grandparent was a full-time caretaker of the child for a
                period of not less than six (6) consecutive months; or
                (C) The grandparent had frequent visitation with the child who
                is the subject of the suit for a period of not less than one (1)
                year.

                                                 ***

                (c) Upon an initial finding of danger of substantial harm to the
                child, the court shall then determine whether grandparent
                visitation would be in the best interests of the child based upon
                the factors in § 36-6-307. Upon such determination, reasonable
                visitation may be ordered.

       After a two-day hearing, which was held on July 6 and September 28, 2009,1 the trial
court denied Ms. Jackson’s petition for visitation by an order entered on October 2, 2009 (the
“First Order”). The First Order is not in the appellate record. However, in its November 8,


        1
        There is no transcript of these proceedings in the appellate record, nor has the Appellant proferred
a Tennessee Rule of Appellate Procedure 24(c) Statement of the Evidence.

                                                    -3-
2010 order denying Ms. Jackson’s second petition for visitation (which is the subject of the
instant appeal), the court references its First Order, stating:

              This Court entered its order on October 2, 2009, denying
              Petitioner’s request for visitation on the grounds that she failed
              to carry her burden under T.C.A. §36-6-306(b)(1) that loss of
              the relationship was likely to occasion severe emotional harm or
              presented the danger of other direct and substantial harm to the
              grandchild.

        Ms. Jackson did not appeal the First Order. However, after her petition for visitation
was denied, and due largely to the efforts of Ms. Jackson and her attorney, the General
Assembly amended Tennessee Code Annotated Section 36-6-306 by adding subsection
(b)(4), which states:

              For purposes of this section, if the child’s parent is deceased and
              the grandparent seeking visitation is the parent of that deceased
              parent, there shall be a rebuttable presumption of substantial
              harm to the child based upon the cessation of the relationship
              between the child and grandparent.

This amendment became effective on May 26, 2010.

       As recently discussed in Marlene Eskind Moses and Jessica J. Uitto, The Current
Status of Tennessee’s Grandparent Visitation Law, Tenn. B. J., Jan. 2010, at 46, 24:

                      Because of the great deference that courts give to
              parental decisions, when the court addresses grandparent
              visitation rights, it must perform a lengthy and complex
              three-pronged analysis. First, the grandparent seeking the court's
              intervention must show that one of six situations exists pursuant
              to Tenn. Code Ann. §36-6-306(a). Second, the court must
              determine whether there is a danger of substantial harm to the
              child if the child does not have visitation with the grandparent.
              The foregoing is based on three factors set out in Tenn. Code
              Ann. §36-6-306(b)(1). In conjunction with this analysis, the
              court must also determine if the relationship between the child
              and grandparent is significant based on three more factors set
              out in Tenn. Code Ann. §36-6-306(b)(2). Third, if the court
              finds that there is danger of substantial harm if the child does

                                              -4-
                not have visitation with the grandparent, it must decide whether
                the visitation would be in the child's best interest based on seven
                factors under Tenn. Code Ann. §36-6-307.

Id. (footnotes omitted).

        The May 26, 2010 amendment, adding section (b)(4) to the Grandparent Visitation
Statute, shifted the burden of proof concerning the second-prong of the analysis, i.e., whether
there is danger of substantial harm, from the grandparent to the opposing parent. Under the
amended statute, if the child’s parent is deceased, and that deceased parent is the child of the
grandparent, the grandparent now has a rebuttable presumption of substantial harm to the
child based upon the cessation of the relationship between the child and grandparent (before
the amendment, the burden was on the grandparent to show substantial harm).

        On July 19, 2010, following the amendment to Tennessee Code Annotated Section
36-6-306, Ms. Jackson filed a second petition for visitation. This second petition, which is
part of our record, relies solely upon the amendment to the Grandparent Visitation Statute
as the ground for re-visiting the issue of Ms. Jackson’s visitation with the child. On August
9, 2010, Mr. Smith filed a motion to dismiss Ms. Jackson’s second petition, on the ground
of res judicata; Mr. Smith filed a supplemental motion to dismiss on October 28, 2010.2 Ms.
Jackson opposed the motion.

       A hearing was held on November 1, 2010. Neither a transcript of this hearing, nor a
Tennessee Rule of Appellate Procedure 24(c) statement of the evidence is included in the
appellate record. By order of November 8, 2010, the trial court dismissed Ms. Jackson’s
second petition upon its finding that it was barred under the doctrine of res judicata.

        Ms. Jackson appeals this order and raises one issue for review, as stated in her brief:

                Whether the trial chancery court erred by dismissing Appellant’s
                [second] petition [for grandparent visitation] on the doctrine of
                res judicata?

        2
          Under Tennessee Rule of Civil Procedure 8.03, res judicata is an affirmative defense, which must
be plead specially. Ordinarily the defense of res judicata is presented by answer, and not by motion. If it is
shown by affidavit or other evidence that the facts constituting the defense are uncontroverted then a motion
for summary judgment would be in order, see discussion infra. Usrey v. Lewis, 553 S.W.2d 612 (Tenn. Ct.
App. 1977). (holding that the defendants' "Motion to Dismiss or Plea of Res Adjudicata" would be
considered as an answer presenting the affirmative defense and as a motion for summary judgment. The court
found, however, that the principle of res judicata did not apply and reversed the dismissal and remanded).


                                                     -5-
        "A trial court's decision that a subsequent lawsuit is barred by principles of res
judicata presents a question of law which this court reviews de novo." In re Estate of Boote,
198 S.W.3d 699, 719 (Tenn. Ct. App. 2005); Morris v. Esmark Apparel, Inc., 832 S.W.2d
563, 566 (Tenn. Ct. App. 1991)). Before conducting a de novo review of whether the criteria
for a finding of res judicata are met in this case, we must first address the threshold issue of
whether the doctrine of res judicata is applicable in cases, such as this, where there has been
an intervening change in the relevant law between the time of the filing of the first lawsuit
and the second.

                           Whether the doctrine of res judicata applies

        Ms. Jackson argues that res judicata does not apply in this case because there has been
an intervening change in the applicable law. In support of her argument, she cites the case
of Cihlar v. Crawford, 39 S.W.3d 172 (Tenn. Ct. App. 2000), wherein this Court held that
“[t]he relitigation of an issue of law between the same two parties is not precluded when a
new determination is warranted in order to take account of an intervening change in the
applicable law or to avoid the inequitable administration of the law.” Id. at 179 (citing
Restatement (Second) of Judgments § 28(2) (1982)).3 Cihlar, unlike the case at bar,
addresses the applicability of the doctrine of collateral estoppel (issue preclusion), when there
has been an intervening change in applicable law. Cihlar v. Crawford, 39 S.W.3d 172. From
the trial court’s order, it does not appear that collateral estoppel was actually considered in
this case. The Court of Appeals has appellate jurisdiction only. Clement v. Nichols, 186
Tenn. 235, 237, 209 S.W.2d 23, 23 (1948); Stewart Title Guar. Co. v. FDIC, 936 S.W.2d
266, 270-71 (Tenn. Ct. App.1996); John Weis, Inc. v. Reed, 22 Tenn. App. 90, 100, 118
S.W.2d 677, 683 (1938). Accordingly, we decline to consider issues and defenses that have
not been presented to the trial court. Simpson v. Frontier Community Credit Union, 810
S.W.2d 147, 153 (Tenn.1991); Alumax Aluminum Corp. v. Armstrong Ceiling Sys., Inc.,
744 S.W.2d 907, 910 (Tenn. Ct. App.1987); Yarbrough v. Stiles, 717 S.W.2d 886, 888
(Tenn. Ct. App.1986). In Milligan v. George, No. 01A01-9609-CH-00406, 1997 WL
379138 (Tenn. Ct. App. July 9, 1997), this Court declined to apply the doctrine of collateral



       3
         The Restatement (Second) of Judgments § 28, which the Cihlar Court relied upon, is titled
“Exceptions To The General Rule Of Issue Preclusion” (emphasis added), and provides, in pertinent part,
that:
               Although an issue is actually litigated and determined by a valid and final
               judgment, and the determination is essential to the judgment, relitigation of
               the issue in a subsequent action between the parties is not precluded ...[and]
               a new determination is warranted in order to take account of an intervening
               change in the applicable legal context or otherwise to avoid inequitable
               administration of the laws....

                                                  -6-
estoppel when the trial court had not relied upon it in reaching its decision. In that opinion,
we specifically stated:

              The Georges' motion to dismiss the Milligans' complaint
              asserted only a res judicata defense. The trial court's opinion,
              bearing the combined style of Milligan v. George and Campbell
              v. George, was based only on res judicata. The trial court
              mentioned the doctrine of collateral estoppel in dicta when it
              observed: “[i]ssues perhaps could be raised as to whether
              collateral estoppel might apply, but those are not raised herein.
              Without a lengthy explanation, it would be the opinion of this
              Court, that collateral estoppel also would not bar the suit
              between Milligan and George.” Later in the opinion, the trial
              court disposed of the motion to dismiss the Campbells'
              complaint on the grounds of res judicata without mentioning
              collateral estoppel. No conclusion can be drawn from this record
              other than that the Georges did not assert, and the trial court did
              not act on, a collateral estoppel defense...

Milligan, 1997 WL 379138, at *3. Likewise, in this appeal, it is apparent that Mr. Smith did
not raise collateral estoppel as a defense, nor did the trial court consider collateral estoppel.
Consequently, our review involves only the question of whether res judicata (claim
preclusion) is applicable when there has been an intervening change in the law.

      Although often used interchangeably, the doctrines of res judicata (claim preclusion)
and collateral estoppel (issue preclusion) are not one and the same. As explained in
Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987):

              [T]he doctrine of res judicata 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. Collateral estoppel operates to bar a second suit
              between the same parties and their privies on a different cause
              of action only as to issues which were actually litigated and
              determined in the former suit.

       Given the fact that these doctrines are separate and distinct legal constructs, the fact
that there is an intervening-change-in-the-law exception to the applicability of collateral
estoppel (see Cihlar and fn. 3, supra) does not, ipso facto, mean that this exception is also
applicable in cases involving res judicata. See also 47 Am. Jur. 2d Judgments §511 (2011)

                                               -7-
(“In some cases, the doctrine of res judicata operates despite a change in the law after the
rendition of the judgment. . . . With respect to the doctrine of collateral estoppel, a change
in the law after the rendition of the judgment may operate to deny conclusiveness to the
judgment.”). Tennessee courts have not yet had the occasion to explore the question of why
res judicata and collateral estoppel are affected differently by changes in the law. However,
one Maryland court has provided an explanation, which we find instructive:

              [The reason the two doctrines are affected differently by
              changes in law] seem[s] to be because of the far more limited
              purposes served by collateral estoppel. It never precludes the
              entire claim but only an issue actually litigated; and so
              exceptions to collateral estoppel present less danger to interests
              of repose and reliance and may be justified by correspondingly
              reduced showings of public interest or private justice than can
              exceptions to res judicata.

Esslinger v. Baltimore City, 622 A.2d 774, 784 at n.5 (Md. Ct. Spec. App. 1993).

       At any rate, based upon the foregoing discussion, we do not find Cihlar to be
controlling in this case. Nonetheless, we concede that the question of whether res judicata
applies in cases where there has been an intervening change in the applicable law is not a
well-settled issue. As noted in 50 C.J.S. Judgments §989 (20):

                      The authorities are not in agreement as to whether res
              judicata is a defense where, between the time of the first
              judgment and the second, there has been an intervening decision
              or a change in the law creating an altered situation.
                      In accordance with the general rule that the estoppel of
              a judgment extends only to the facts and conditions as they were
              at the time the judgment was rendered, it has been broadly held
              that res judicata is no defense where, between the time of the
              first judgment and the second, there has been an intervening
              decision or a change in the law creating an altered situation, as
              where the second suit seeks an adjudication of rights under a
              statute enacted subsequent to the determination of the first
              action, and it has been said that this rule applies to changes in
              the law including acts of the legislature, judicial decisions, and
              changes in regulations. However, a number of cases stand for
              the proposition that a prior adjudication is or may be conclusive
              of the parties' rights notwithstanding a subsequent change in the

                                             -8-
              law, at least where the claims at issue do not implicate
              fundamental constitutional rights. There is also authority that
              although changes in case law almost never provide a
              justification for instituting a new action arising from the same
              dispute that already has been litigated to a final judgment,
              statutory changes that occur after the previous litigation has
              concluded may justify a new action.

Id. (footnotes omitted).

         Even the United States Supreme Court has changed its position on this issue. In
State Farm Mut. Auto. Ins. Co. v. Duel, 324 U.S. 154, 65 S.Ct. 573, 89 L.Ed. 812 (1945),
the Court stated that “it is . . . the general rule that res judicata is no defense where between
the time of the first judgment and the second there has been an intervening decision or a
change in the law creating an altered situation.” Id. at 162 (citations omitted). However, in
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424 (1981), the Supreme
Court overruled its previous opinion in State Farm, stating that “nor are the res judicata
consequences of a final, unappealed judgment on the merits altered by the fact that the
judgment may have been wrong or rested on a legal principle subsequently overruled in
another case.” Id. at 2428. From our research, it appears that the prevailing view is that a
change in the law, in and of itself, is insufficient to bar the application of res judicata. See
e.g., Wilson v. Lynaugh, 878 F.2d 846, 850-851 (5th Cir.1989), Precision Air Parts, Inc.
v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir.1984) (“The general rule in this circuit, and
throughout the nation, is that changes in the law after a final judgment do not prevent the
application of res judicata . . . even though the grounds on which the decision was based are
subsequently overruled.”); Barzin v. Selective Service Local Board No. 14, 446 F.2d 1382,
1383 (3d. Cir. 1971) (recognizing that “a prior decision may serve as res judicata even if a
contrary judicial decision on the legal issues involved intervenes between the first and second
suits.”). However, courts have recognized an exception to this principle in the case of
momentous legal changes invoking important and fundamental changes in constitutional
rights. For example, the Court of Appeals for the Eleventh Circuit did not apply res judicata
to a state court judgment because three months after that judgment was issued the Supreme
Court overruled the separate but equal doctrine in Brown v. Bd. of Education, 347 U.S. 483,
74 S.Ct. 686, 98 L.Ed. 873 (1954); see also Precision Air, Inc. v. Avco Corp., 736 F.2d
1499, 1504 (11th Cir. 1981) (discussing Christian v. Jemison, 303 F.2d 52, 54 (5th Cir.
1962)). The former Fifth Circuit has also recognized an exception in cases involving
constitutional law. "Faced with changing law, courts hearing questions of constitutional right
cannot be limited by res judicata. If they were, the Constitution would be applied differently
in different locations." Parnell v. Rapides Parish School Bd., 563 F.2d 180, 185 (5th Cir.
1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); see also Jackson

                                               -9-
v. DeSoto Parish School Bd., 585 F.2d 726 (5th Cir. 1978); Moch v. East Baton Rouge
Parish School Bd., 548 F.2d 594 (5th Cir.), cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54
L.Ed.2d 132 (1977). A plaintiff may, therefore, be able to escape the application of res
judicata by demonstrating that the relevant law has undergone "momentous ... [and]
significant" changes since the prior litigation concluded. Precision Air Parts, Inc., 736 F.2d
at 1504. Some jurisdictions have also carved out an exception to the general rule where the
amendment to the law creates a new right. In Smith v. Guest, 16 A.3d 920 (Del. 2011), the
court held that the statutory change that occurred after the previous litigation justified a new
action. Specifically, the court held that, by changing the definition of legal "parent," the
General Assembly conferred standing upon all persons who would qualify as de facto parents
to petition for custody of a minor child. Therefore, the court concluded that the rationale
underlying res judicata, namely “the conclusive resolution of disputes,” was not implicated
because the legislature “expressly intended to enable persons such as Guest (the minor
child’s biological mother’s same-sex partner) to petition for custody. Before [the statutory
amendment], Guest had no legal ability to do so.” Id. The amendment to the Tennessee
Grandparent Visitation Statute, shifting the burden of proof to the opposing parent, does not
stand on par with such precedent shifting cases as Brown v. Bd. of Education, nor does this
amendment confer a new right. Consequently, these rarely used exceptions do not apply in
the instant case.

        Because one of the policies behind the doctrine of res judicata is "to prevent the
splitting of a single cause of action and the use of several grounds for recovery under the
same action as the basis for separate suits." 7 James W. Moore et al., Moore's Federal
Practice and Procedure, ¶ 0.410[2] p. 363-364 (2d Ed.1974). The Restatement (Second) of
Judgments § 28, which is titled "Exceptions to the General Rule Concerning Splitting,”
outlines certain other exceptions that may negate the general rule that res judicata is not
barred by an intervening change in the law. Section 28 of the Restatement (Second) of
Judgments provides, in relevant part:

              (1) When any of the following circumstances exists, the general
              rule of § 24 ["When a valid and final judgment rendered in an
              action extinguishes the plaintiff's claim . . . the claim
              extinguished includes all rights of the plaintiff to remedies
              against the defendant with respect to all or any part of the
              transaction, or series of connected transactions, out of which the
              action arose."] does not apply to extinguish the claim, and part
              or all of the claim subsists as a possible basis for a second action
              by the plaintiff against the defendant:




                                              -10-
              (a) The parties have agreed in terms or in effect that the plaintiff
              may split his claim, or the defendant has acquiesced therein; or
              (b) The court in the first action has expressly reserved the
              plaintiff's right to maintain the second action; or
              (c) The plaintiff was unable to rely on a certain theory of the
              case or to seek a certain remedy or form of relief in the first
              action because of the limitations on the subject matter
              jurisdiction of the courts or restrictions on their authority to
              entertain multiple theories or demands for multiple remedies or
              forms of relief in a single action, and the plaintiff desires in the
              second action to rely on that theory or to seek that remedy or
              form of relief; or
              (d) The judgment in the first action was plainly inconsistent with
              the fair and equitable implementation of a statutory or
              constitutional scheme, or it is the sense of the scheme that the
              plaintiff should be permitted to split his claim; or
              (e) For reasons of substantive policy in a case involving a
              continuing or recurrent wrong, the plaintiff is given an option to
              sue once for the total harm, both past and prospective, or to sue
              from time to time for the damages incurred to the date of suit,
              and chooses the latter course; or
              (f) It is clearly and convincingly shown that the policies favoring
              preclusion of a second action are overcome for an extraordinary
              reason, such as the apparent invalidity of a continuing restraint
              or condition having a vital relation to personal liberty or the
              failure of the prior litigation to yield a coherent disposition of
              the controversy.

        The law is sparse in Tennessee on the question of whether res judicata is applicable
when there has been an intervening change in the law; however, it appears that our courts
have followed the general rule that changes in the law after a final judgment do not prevent
the application of res judicata, and have heretofore declined to apply any of the exceptions
outlined in the above caselaw. In Moulton v. Ford Motor Co., 533 S.W.2d 295, 297 (Tenn.
1976), the Court held that, despite changes in decisional law, res judicata applied to bar
petitioner from relitigating an earlier claim. Specifically, the Court stated that “[s]trong
considerations of public policy demand that [changes in law] not be applied in such a manner
as to revive cases wherein contrary results were reached.” Id. at 296.




                                             -11-
       In Regions Financial Corp. v. Marsh USA, Inc., 310 S.W.3d 382 (Tenn. Ct. App.
2009), a breach of contract case, this Court specifically declined to apply any of the
exceptions to claim splitting, which are outlined in The Restatement (Second) of Judgments
§ 26. Relying upon Moulton, the Regions Court noted that: “. . . Tennessee has a
long-standing tradition in upholding judgments. We, therefore, decline Regions' invitation
to adopt and apply any of these [Restatement] exceptions to claim preclusion.” Regions
Financial Corp, 310 S.W.3d at 400.

        Given Tennessee’s long-standing tradition of upholding judgments we must be
prudent in applying any exception to the general rule that res judicata is applicable despite
an intervening change in the law. Regions Financial Corp, 310 S.W.3d at 400. Under the
particular facts of this case, and considering the nature of the statutory amendment, which
merely shifted the burden of proof and did not create a new right or change a constitutional
paradigm, we hold that the doctrine of res judicata may be applied in this case. Our holding,
however, does not preclude an application of an exception to this general rule should a future
case warrant. Having determined that res judicata may apply, we now turn to the question
of whether the substantive criteria for a finding of res judicata are met in this case.

                       Requirements for a Finding of Res Judicata

        As briefly discussed above, res judicata is a claim preclusion doctrine that promotes
finality in litigation. Lien v. Couch, 993 S.W.2d 53, 55 (Tenn. Ct. App.1998). The doctrine
bars a second suit between the same parties on the same cause of action as to all issues which
were or could have been litigated in the former suit. Richardson v. Tennessee Bd. of
Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995); Massengill v. Scott, 738 S.W.2d 629, 631
(Tenn.1987).

       Because the principle of claim preclusion prevents parties from splitting their cause
of action; it requires parties to raise in a single lawsuit all the grounds for recovery arising
from a single transaction. Lien, 993 S.W.2d at 56. Consequently, the doctrine of res judicata
bars the litigation not only of those matters actually determined in the prior action, but also
those that reasonably could have been litigated in the prior action. Brown v. Brown, 29
S.W.3d 491, 495 (Tenn. Ct. App. 2000).

       The party asserting res judicata must demonstrate: (1) that the underlying judgment
was rendered by a court of competent jurisdiction; (2) that the same parties were involved
in both suits; (3) that the same cause of action was involved in both suits; and (4) that the
underlying judgment was final and on the merits. Lien, 993 S.W.2d at 56; Collins v. Greene
Co. Bank, 916 S.W.2d 941, 945 (Tenn. Ct. App.1995).



                                              -12-
      The final criterion for application of the doctrine of res judicata is that the underlying
judgment (here, the First Order) must have been a final adjudication on the merits. Roy v.
Diamond, 16 S.W.3d 783, 787 (Tenn. Ct. App.1999). It must have been final and must have
concluded the rights of the party against whom the res judicata defense is asserted.
Richardson, 913 S.W.2d at 459.

       In its November 8, 2010 order, the trial court specifically stated:

                      Petitioner does not dispute the validity and finality of this
              Court’s previous order [i.e., the First Order]. Instead, she argues
              that the change in the law mandates [a] re-trial of the case as she
              now has a presumption of substantial harm in her favor thereby
              shifting the burden to [Mr. Smith] to refute. No cases have been
              cited dealing directly with the issue of whether a litigant is
              entitled to a second day in court, or a second bite of the apple,
              when a statute has been amended.

 As pointed out by the Moulton Court, validity of the prior order is not the gravamen of res
judicata:

              The policy rationale in support of Res Judicata is not based upon
              any presumption that the final judgment was right or just.
              Rather, it is justifiable on the broad grounds of public policy
              which requires an eventual end to litigation. Akin to statutes of
              limitations, the doctrine of Res judicata is a ‘rule of rest’ and
              ‘private peace’....

              .... It is not material on this point whether the finding of the jury
              was right or not in the former suit. That cannot be questioned
              any more between the same parties or their privies. Right or
              wrong the question was finally closed, unless a new trial had
              been obtained in the same suit. This rule is not alone for the
              benefit of the parties litigant, to put an end to strife and
              contention between them, and produce certainty as to individual
              rights, but it is also intended to give dignity and respect to
              judicial proceedings, and relieve society from the expense and
              annoyance of indeterminable litigation about the same matter.

Moulton, 533 S.W.2d at 296 (internal citations omitted).



                                              -13-
Rather, in reviewing a res judicata determination, it is the finality of the order, and not
whether the holding was correct, which is the dispositive question.

       In Tennessee, the finality of a judgment involves both substantive and technical
requirements. Substantively, 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, 913
S.W.2d at 460 (quoting Saunders v. Metro. Gov't of Nashville & Davidson County, 214
Tenn. 703, 383 S.W.2d 28, 31 (1964)). The technical requirements for finality of judgments
are addressed in Tennessee Rule of Civil Procedure 58, which provides:

                Entry of a judgment or an order of final disposition is effective
                when a judgment containing one of the following is marked on
                the face by the clerk as filed for entry:
                (1) the signatures of the judge and all parties or counsel, or
                (2) the signatures of the judge and one party or counsel with a
                certificate of counsel that a copy of the proposed order has been
                served on all other parties or counsel, or
                (3) the signature of the judge and a certificate of the clerk that
                a copy has been served on all other parties or counsel.
                Following entry of judgment the clerk shall make appropriate
                docket notations and shall copy the judgment on the minutes,
                but failure to do so will not affect validity of the entry of
                judgment. When requested by counsel or pro se parties, the clerk
                shall forthwith mail or deliver a copy of the entered judgment to
                all parties or counsel. If the clerk fails to forthwith mail or
                deliver, a party prejudiced by that failure may seek relief under
                Rule 60.

       Although both the substantive and technical requirements must be met, it is not
necessary to have a trial for a judgment to be on the merits; rather, "[i]f the parties had an
opportunity to be heard, and there are no technical defects, the judgment ‘is on the merits,
although there was no actual hearing or argument on the facts of the case.’” Hollins v.
Covington Pike Chrysler-Plymouth, Inc., No. W2002-00492-COA-R3-CV, 2002 WL
31895720, at *1 (Tenn. Ct. App. Dec. 23, 2002) (quoting 50 C.J.S. Judgments § 728
(1997)).4


        4
          For example, in Hart v. Tourte, 10 S.W.3d 263, 267 (Tenn. Ct. App. 1999), this court determined
that dismissal of a prior proceeding because plaintiff failed to attach a properly authenticated foreign
judgment to his petition for registration was dismissal on a non-merits ground and, therefore, res judicata
                                                                                             (continued...)

                                                   -14-
       Thus, dismissal for procedural defects is not a determination on the merits so as to
support a claim of res judicata. Where, however, a complaint has been dismissed for failure
to state a claim upon which relief can be granted, such a dismissal is considered an
adjudication on the merits. Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct.
App. 1994). Consequently, if the grant of the motion to dismiss is based upon res judicata,
the motion to dismiss necessarily requires consideration of evidence of the former judgment,
and thus the pending motion must be treated as a motion for summary judgment. Tenn. R.
Civ. P. 12.02.

        As noted above, neither Ms. Jackson’s first petition, nor the First Order thereon are
in this appellate record. To carry its burden at the trial level, the party raising the defense of
res judicata must generally put in evidence the record or a copy of the record of the former
case. American National Bank v. Bradford, 28 Tenn. App. 239, 188 S.W.2d 971 (1945). If
the record does not conclusively show that a particular matter was determined in the former
proceeding, the party relying on res judicata as a defense must supplement the record by
other proof. Carter County v. Street, 36 Tenn. App. 166, 252 S.W.2d 803 (1952).

       Because no evidence of the former judgment is included in this record, we can only
presume that the trial court took judicial notice of the former proceedings and judgments in
the same court. Formerly, this was not permissible. American National Bank v. Bradford,
28 Tenn. App. 239, 188 S.W.2d 979 (1949). However, Tennessee Rule of Evidence 201,
which became effective January 1, 1990, provides:

                Rule 201. Judicial notice of adjudicative facts.-(a) Scope of
                Rule.-This rule governs only judicial notice of adjudicative
                facts.
                (b) Kinds of Facts.-A judicially noticed fact must be one not
                subject to reasonable dispute, in that it is either (1) generally
                known within the territorial jurisdiction of the trial court or (2)
                capable of accurate and ready determination by resort to sources
                whose accuracy cannot reasonably be questioned.
                (c) When Discretionary.-A court may take judicial notice
                whether requested or not.
                                             ***
                (e) Opportunity to Be Heard.-A party is entitled upon timely
                request to an opportunity to be heard as to the propriety of
                taking judicial notice and the tenor of the matter noticed. In the

        4
         (...continued)
did not preclude the second lawsuit. Id. at 267.

                                                   -15-
               absence of prior notification, the request may be made after
               judicial notice is taken.
               (f) Time of Taking Notice.-Judicial notice may be taken at any
               stage of the proceeding.

      In Mandela v. Reynolds, No. 01-A-01-9303-CH00126, 1993 WL 236607 (Tenn. Ct.
App. June 30, 1993), a case in which the trial court took judicial notice of its prior order and
proceedings, which were not included in the appellate record, we held:

                        The prior proceedings and judgments in the same court were
               subject to judicial notice because they were "capable of accurate and
               ready determination by resort to sources whose accuracy cannot
               reasonably be questioned", i.e., the records of the Trial Court. T.R.E.
               Rule 201(b)(2). The plaintiff had opportunity to be heard as to the
               propriety of taking judicial notice and the tenor of the matter noticed,
               i.e., the nature of the prior proceedings and identity of same with the
               present proceeding. T.R.E. Rule 201(e). This opportunity to be heard
               included the obligation and responsibility to present and preserve in this
               record sufficient evidence to controvert the matters of which the Trial
               Court took judicial knowledge. This was not done.
                        Without evidence of the details of the previous
               proceedings, this Court is not in position to review the action of
               the Trial Judge based upon his judicial knowledge of
               proceedings in the Court over which he presides, the records of
               which are readily accessible to the Trial Judge.
                        The summary judgment of dismissal is affirmed.

Id. at *2-3.

         Likewise, in the instant case, and as discussed above, we can only assume, in the
absence of its inclusion in our appellate record, that the trial court took judicial notice of its
prior proceedings, including the First Order, upon which it based its decision concerning res
judicata. Like the Mandela Court, the omission of the prior order, from our record,
precludes us from reviewing whether the First Order was, in fact, a final judgment because
we do not have the trial court’s ability to take judicial notice of these proceedings. While we
may concede that the First Order was substantively valid in that it adjudicated all of the
claims of all of the parties, it is our review of the technical requirements for finality of orders
that is precluded by Appellant’s failure to include the First Order in our record. As discussed
above, at the trial level, it was Mr. Smith’s burden, as the party asserting res judicata, to
provide proof of a final judgment in a prior proceeding. American National Bank v.

                                               -16-
Bradford, 188 S.W.2d 971. However, at the appellate level it is incumbent upon the
appellant to provide a record that is adequate for a meaningful review. Tenn. R. App. P.
24(b). While the trial court took judicial notice of its prior proceedings in this case, this
Court cannot do the same. We are a reviewing court. Because the appellant has failed to
meet her burden to provide an adequate record in this case, this Court cannot conduct a
meaningful review of the question of whether the First Order was final from a technical
standpoint. Tenn. Civ. P. 58. Consequently the summary judgment of dismissal is, therefore,
affirmed.

      For the foregoing reasons, we affirm the order of the trial court, dismissing Ms.
Jackson’s second petition for grandparent visitation. Costs of this appeal are assessed against
the Appellant, Jeanette Rae Jackson, and her surety.




                                                    J. STEVEN STAFFORD, JUDGE




                                             -17-
