                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   October 7, 2003 Session

    CLEMENT BERNARD v. SUMNER REGIONAL HEALTH SYSTEM

                     Appeal from the Chancery Court for Sumner County
                         No. 22698-C    Tom E. Gray, Chancellor



                  No. M2002-02962-COA-R3-CV - Filed December 22, 2003



This case was dismissed by the trial court on summary judgment for res judicata. Plaintiff had
previously filed an action against the same Defendant for actions of Defendant surrounding a sexual
harassment allegation. The previous action was for procurement of breach of contract and
defamation. A final judgment has been rendered in that case. The current action is for failure to
follow internal procedures resulting in breach of contract. The issue to be decided on appeal is
whether these two cases involve the same “cause of action” necessary for a finding of res judicata.
We find that they do involve the same “cause of action” and affirm the trial court’s decision.


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


WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and FRANK G. CLEMENT , JR., J., joined.

Joe Bednarz, Jr., Joe Bednarz, Sr., Nashville, Tennessee, for the appellant, Clement F. Bernard, M.D.

James C. Bradshaw, III, Elizabeth H. Foss, Nashville, Tennessee, for the appellee, Sumner Regional
Health Systems, Inc., d/b/a Sumner Regional Medical Center.


                                            OPINION

       Plaintiff, Clement F. Bernard, M.D., filed a previous law suit against Defendant, Sumner
Regional Health Systems, Inc. That lawsuit was dismissed on summary judgment, which action was
affirmed by this Court. Bernard v. Sumner Regional, No. M2000-01478-COA-R3-CV, 2002 WL
459006 (Tenn.Ct.App. Mar.26, 2002). The current action before this court was also filed by Dr.
Bernard against Sumner Regional and is based on the same set of operative facts as the previous
action.

        The facts underlying both lawsuits are fairly simple and are set out in detail in our prior
opinion. Bernard v. Sumner Regional, Id. Dr. Bernard began employment with St. Thomas Medical
Group, P.L.L.C., on March 10, 1997, pursuant to an employment contract. He began working at the
cardiac catherization lab, which was a joint venture between St. Thomas and Sumner Regional on
June 23, 1997 and was also granted staff privileges at Sumner Regional Medical Center in June
1997.

        In February of 1999, Dr. Bernard gave a presentation to a group of employees from Sumner
Regional’s Human Resources Department. As a result of this presentation, Dr. Bernard was accused
of sexual harassment. An employee of Sumner Regional investigated the charges and informed St.
Thomas that Dr. Bernard was no longer welcome at Sumner Regional. Sumner Regional asked that
St. Thomas obtain from Dr. Bernard a voluntary resignation of his staff privileges at Sumner
Regional. At a meeting attended by three members of St. Thomas Medical Group and their attorney,
Dr. Bernard was placed on administrative leave from St. Thomas Hospital and informed that he was
not to return to Sumner Regional. He was also asked to sign a letter resigning his staff privileges
at Sumner Regional, which he did, and was removed from the staff of the cardiac catheterization
unit. His employment contract with St. Thomas was terminated a short time later.

        Dr. Bernard’s first lawsuit against Sumner Regional was filed on March 28, 1999 and alleged
procurement of breach of contract in regard to his contract with St. Thomas and defamation.
Summary judgment was granted by the trial court and affirmed by this Court finding that there was
no intentional or malicious act inducing breach of contract and that the information relayed by
Sumner Regional was not defamatory. See Bernard v. Sumner Regional, 2002 WL 459006. While
the appeal in his first action was pending, Dr. Bernard then filed a second suit against Sumner
Regional that is the subject of this appeal. The second suit was initially filed in Davidson County
and dismissed for lack of venue. The suit was subsequently re-filed in Sumner County and
ultimately dismissed on the basis of res judicata. The second suit, which is the subject of our
opinion today, alleged a violation of Dr. Bernard’s rights under Sumner Regional’s By-Laws, which
violation was alleged to constitute a breach of contract.

       By Order of September 24, 2002, Chancellor Tom Gray granted Sumner Regional’s Motion
to Dismiss. Plaintiff’s Motion to Alter or Amend was heard on November 8, 2002, and, by Order
of November 18, 2002, Chancellor Gray denied Plaintiff’s Motion. At the hearing on Plaintiff’s
Motion to Alter or Amend, the trial judge stated:

               In the first paragraph, the second sentence says, On March 26, 2002 the Court
       of Appeals issued an order affirming the trial court’s granting of summary judgement
       on the grounds that Dr. Bernard could not establish viable claims for procurement of
       breach of contract or defamation.



                                                -2-
                The Court relied upon that sentence, recognizing that what counsel was
        saying was that the current cause of action against the defendant is a breach of
        contract. It stems from a contract between Clement Bernard, M.D. and Sumner
        Regional Medical Health Center, while the other one dealt with procurement of
        breach of contract.
                But I was of the opinion that the argument that they could have and should
        have all been brought together gave rise to the finding of res judicata.
                And then there was a supplemental response by Sumner Regional Health
        Systems, Incorporated to the motion to dismiss. That’s the plaintiff’s supplemental
        response filed September 9, 2002.
                So for any facts, the Court was looking at, basically, what was agreed or what
        was contained in what plaintiff had to say. So the motion to set aside the order of
        dismissal is denied.

Plaintiff’s counsel further requested that the record from the first lawsuit be consolidated with the
current record. That request was also denied.

        Two issues are presented by Dr. Bernard for review: (1) Whether res judicata was properly
applied in this matter and the case correctly dismissed; (2) Whether the trial court had sufficient
factual information without the record of the previous matter to determine the res judicata issue.

        We will deal with the second issue first. The salient facts in this matter are not in dispute,
those facts being how Dr. Bernard came to lose his hospital privileges at Sumner Regional and his
employment with St. Thomas. These facts are agreed on by both parties. Further, this Court has
access to, and can take judicial notice of, its opinion in the first case filed by Dr. Bernard, which sets
out the facts alleged by Dr. Bernard, the allegations made by Dr. Bernard, and the decision of the
trial court in that matter. The current question before this Court boils down to a question of law:
Does Dr. Bernard’s claim involve a “cause of action” that could have been litigated in a former suit?
As there are no material facts in dispute relative to that question and the claims and facts alleged by
Dr. Bernard in both suits are easily determinable by the court, we find no error in the trial court’s
decision to not allow consolidation of the record from the first lawsuit with the current record before
this Court.

        The party asserting res judicata has the burden of proving the elements necessary to sustain
a successful res judicata defense. Carter County v. Street, 252 S.W.2d 803, 806 (Tenn.Ct.App.
1952). In order to be successful, a party asserting a res judicata defense 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 on the merits. Lee v. Hall, 790 S.W.2d 293, 294 (Tenn.Ct.App.1990).
The only question at issue in this appeal is whether the two lawsuits involve the same cause of
action.




                                                   -3-
        It has long been held in Tennessee that a cause of action includes facts, claims, and issues
that might have been litigated in a prior action. “The doctrine of res judicata binds the same parties
standing in the same capacity in subsequent litigation on the same cause of action not only upon facts
actually litigated in the former action, but also on those points of fact which might have been (but
were not expressly) litigated therein.” A.L. Kornman Co. v. Metro. Gov’t of Nashville and Davidson
County, 391 S.W.2d 633, 636 (Tenn.1965)(emphasis in original).

                It is the insistence of the respondents that the principle of res judicata applies
       only to issues actually raised and finally adjudicated in prior litigation. Their
       complaint refers to and repeats a number of allegations and claims allegedly raised
       in the former suit but asserts that these are not foreclosed here because they were not
       finally determined therein.

                This, in our opinion, is too narrow a view of the principle involved. It has
       long been the rule in this state that not only issues which were actually determined,
       but all claims and issues which were relevant and which could reasonably have been
       litigated in a prior action, are foreclosed by the judgment therein.

American Nat’l. Bank and Trust Co. of Chattanooga v. Clark, 586 S.W.2d 825, 826 (Tenn.1979).

               However, a long line of Tennessee decisions supports the rule that a former
       judgment between the same parties or their privies as to the same subject matter is
       res judicata, or conclusive, not only as to all issues presented and decided, but as to
       all issues which might, could or should have been presented.

               ....

               This Court cannot accept the argument of appellant that, by disclaiming or
       failing to present a particular fact or theory supporting his action, a plaintiff may
       thereby reserve and preserve the disclaimed and unpresented fact or theory as an “ace
       in the hole” to be used as a ground for a second lawsuit based on such ground. To
       assent to plaintiff’s insistence would be to condone piecemeal presentation of suits
       and defenses at the whim of the parties. Such is not the policy of our law and is
       contrary to the authorities set out above.

McKinney v. Widner, 746 S.W.2d 699, 705-06 (Tenn.Ct.App.1987); see also Massengill v. Scott, 738
S.W.2d 629 (Tenn.1987); Brown v. Brown, 29 S.W.3d 491 (Tenn.Ct.App.2000); Collins v. Green
County Bank, 916 S.W.2d 941 (Tenn.Ct.App.1995); Lee v. Hall, 790 S.W.2d 293
(Tenn.Ct.App.1990).

        We find it obvious that both lawsuits stem from the same set of facts, those facts being
Sumner Regional’s response to allegations of sexual harassment against Dr. Bernard. The same
actions and procedures followed by Sumner Regional (or lack thereof) caused all the harm claimed


                                                  -4-
by Dr. Bernard. Instead of following procedures alleged to be required by Sumner Regional’s
bylaws, Sumner Regional investigated the claim internally and quietly and then relayed its desire to
terminate its relationship with Dr. Bernard to St. Thomas to handle. All actions in question were
undertaken by the same party-defendant, Sumner Regional, and resulted in Dr. Bernard’s loss of staff
privileges at Sumner Regional, as well as his employment with St. Thomas and the Cardiac
Catherization Lab. In both suits, Dr. Bernard questions the validity of the investigation and the
charges raised against him. He further questions the authority and motivations under which Sumner
Regional took action and communicated information. All claims raised in the previous lawsuit by
Dr. Bernard, procurement of breach of contract with St. Thomas and defamation, and those raised
in the case at bar, failure to follow internal procedures resulting in breach of contract by Sumner
Regional, might have, could have, and should have been presented in one lawsuit.

        Corollary to and integrated within res judicata principles is the doctrine of claim preclusion,
wherein it is established that a cause of action between the same parties and based upon the same
controlling facts is single, entire and indivisible and cannot be split into component parts by
successive litigation.

               The principle of claim preclusion prevents parties from splitting their cause
       of action and requires parties to raise in a single lawsuit all the grounds for recovery
       arising from a single transaction or series of transactions that can be brought together.
       See Bio-Technology Gen. Corp. v. Genentech, Inc., 80 F.3d 1553, 1563
       (Fed.Cir.1996); Hawkins v. Dawn, 208 Tenn. 544, 548, 347 S.W.2d 480, 481-82
       (1961); Vance v. Lancaster, 4 Tenn. (3 Hayw.) 130, 132 (1816).

Lien v. Couch, 993 S.W.2d 53, 56 (Tenn.Ct.App.1998).

       Since all of the facts relevant to Dr. Bernard’s difficulties with either Sumner Regional
Health Systems, Inc. or St. Thomas had occurred before he filed his first action against Sumner
Regional, he cannot “split” this cause of action.

        The trial court’s decision to dismiss Dr. Bernard’s current lawsuit against Sumner Regional
on the basis of res judicata is affirmed.



                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




                                                 -5-
