FILED

June 24, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

CON PAC SOUTH, INC. ) HAMBLEN COUNTY

 ) 03A01-9811-CV-00389

Plaintiff-Appellant )

)

)

v . ) HON. JOHN K. WILSON,

) JUDGE

)

JAMES W. BURNETT, d/b/a )

BURNETT PRODUCE CO. )

)

Defendant-Appellee ) AFFIRMED AND REMANDED

J. RANDALL SHELTON OF MORRISTOWN FOR APPELLANT

C. DWAINE EVANS OF MORRISTOWN FOR APPELLEE

O P I N I O N

 Goddard, P.J. 

Con Pac South, Inc. (“Con Pac”) appeals the dismissal

of its suit against James W. Burnett d/b/a Burnett Produce Co.

(“Mr. Burnett”) through summary judgment by the Hamblen County

Circuit Court. Con Pac sought judgment against Mr. Burnett in

the amount of $31,009.44 arising from an overdue debt for goods

ordered and received. 
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The history of the case at hand can be traced back to

an earlier case in the Hamblen County Circuit Court styled Con

Pac South, Inc. v. Burnett Produce Co., Inc. , No. 93-CV-492. In

this previous case, Con Pac filed suit seeking collection of the

same past due account sought in this case. Instead of naming Mr.

Burnett personally in this previous case, Con Pac sought judgment

against Burnett Produce Company, Incorporated. On September 16,

1994, the Trial Court entered judgment against Burnett Produce

Company, Inc. for the full amount of $31,009.44. On March 28,

1995, the Trial Court entered an agreed order amending the

Complaint to include James W. Burnett d/b/a Burnett Produce

Company as an additional defendant liable for the amount past due

arising from the goods ordered and received. On July 5, 1995,

Mr. Burnett filed a Motion for Summary Judgment alleging that the

judgment obtained by Con Pac against Burnett Produce Co., Inc.

barred the action against James W. Burnett d/b/a Burnett Produce

Co. based on the theories of res judicata and collateral

estoppel. The Trial Court granted the motion for summary

judgment dismissing the action against James W. Burnett d/b/a

Burnett Produce Co. on August 1, 1995. No appeal was taken from

that order.

On July 10, 1995, before the Trial Court ruled on Mr.

Burnett’s Motion for Summary Judgment in cause number 93-CV-492,

Con Pac filed the present action against James W. Burnett d/b/a

Burnett Produce Co. seeking payment of the same overdue account. 

On September 11, 1995, Mr. Burnett again filed a Motion for
3

Summary Judgment based upon the grounds of res judicata,

collateral estoppel and judicial estoppel. This motion was

initially denied by the Honorable Ben K. Wexler on July 8, 1996. 

Subsequently, the case was assigned to the Honorable John K.

Wilson, who granted the Motion for Summary Judgment and dismissed

this action on November 17, 1998. Con Pac appeals from the

judgment of November 17, 1998, granting Mr. Burnett’s Motion for

Summary Judgment.

The following issue is presented by Con Pac on appeal:

Did the trial judge, the Honorable John K. Wilson, err

in revisiting Mr. Burnett’s Motion for Summary Judgment

and granting it (a) when it had earlier been considered

and denied by the first trial judge, the Honorable Ben

K. Wexler, and (b) when no new motion to rehear had

been filed, and (c) when no new facts or legal issues

had come into being after it was denied?

We first address whether Judge Wilson erred in

revisiting Mr. Burnett’s Motion for Summary Judgment after it had

already been denied by Judge Wexler. Con Pac relies on the “law

of the case” doctrine which makes an appellate court’s decision

of an issue of law binding in later trials and appeals of the

same case if the facts are substantially the same as the facts in

the first trial or appeal. Memphis Publ’g Co. v. Tennessee

Petroleum Underground Storage Tank Bd. , 975 S.W.2d 303

(Tenn.1998). The initial denial of Mr. Burnett’s Motion for

Summary Judgment at no time came before an appellate court;
4

therefore, we find that the “law of the case” doctrine is not

applicable in the case at hand.

Instead, we find Rule 3(a) of the Tennessee Rules of

Appellate Procedure prevails. This Rule provides that if

multiple parties or claims for relief are involved, “any order

that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties is not enforceable or

appealable and is subject to revisio n at any time before entry of

a final judgment adjudicating all the claims, rights, and

liabilities of the parties.” Tenn.R.App.P. 3(a)(emphasis added). 

We find that Judge Wilson properly exercised discretion expressly

granted by Rule 3(a) of the Tennessee Rules of Appellate

Procedure in revisiting Mr. Burnett’s Motion for Summary Judgment

without a motion to rehear and without presentation of new facts

or legal issues as mandated by the “law of the case” doctrine. 

For these reasons, we hold that Judge Wilson’s reconsideration of

the Motion for Summary Judgment was proper. 

Con Pac also contends that Judge Wilson erred in

granting Mr. Burnett’s Motion for Summary Judgment. Mr. Burnett

responds that Summary Judgment was properly granted based upon

res judicata. 

The standards governing an appellate court's review of

a trial court's action on a motion for summary judgment are well

settled. Since our inquiry involves purely a question of law, no
5

presumption of correctness attaches to the trial court's

judgment. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). 

Our task is confined to reviewing the record to determine whether

the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been met. Cowden v. Sovran Bank/Cent. S. , 816

S.W.2d 741, 744 (Tenn.1991). Rule 56.03 of the Tennessee Rules

of Civil Procedure provides that summary judgment is only

appropriate where: (1) there is no genuine issue with regard to

the material facts relevant to the claim or defense contained in

the motion, Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn.1993); and

(2) the moving party is entitled to a judgment as matter of law

on the undisputed facts. Anderson v. Standard Register Co ., 857

S.W.2d 555, 559 (Tenn.1993). The moving party has the burden of

proving that its motion satisfies these requirements. Downen v.

Allstate Ins. Co. , 811 S.W.2d 523, 524 (Tenn.1991).

The standards governing the assessment of evidence in

the summary judgment context are also well established. Courts

must view the evidence in the light most favorable to the

nonmoving party and must also draw all reasonable inferences in

the nonmoving party's favor. Byrd , 847 S.W.2d at 210-11. Courts

should grant a summary judgment only when both the facts and the

conclusions to be drawn from the facts permit a reasonable person

to reach only one conclusion. Byrd , 847 S.W.2d at 210-11.

Mr. Burnett alleges that summary judgment was proper

based upon the theory of res judicata. We agree. The doctrine
6

of res judicata bars a second suit between the same parties on

the same cause of action with regard to all issues that were or

could have been litigated in the former suit. Massengill v.

Scott , 738 S.W.2d 629, 631 (Tenn.1987); Gibson Lumber Co. v.

Neely Coble Co. , 651 S.W.2d 232, 233-34 (Tenn.Ct.App.1983). Res

judicata is based on the public policy favoring finality in

litigation and does not depend upon correctness or fairness, as

long as the underlying judgment is valid. Moulton v. Ford Motor

Co. , 533 S.W.2d 295, 296 (Tenn.1976).

The defense of res judicata will be available if the

party asserting the defense can show that the prior judgment was

by a court of competent jurisdiction, that the same parties were

involved in both suits, that the same cause of action was

involved in both suits, and that the underlying judgment was on

the merits. Lee v. Hall , 790 S.W.2d 293 (Tenn.Ct.App.1990).

We find that the facts in this case meet the

requirements necessary to establish the defense of res judicata. 

On July 1, 1995, a prior judgment was entered in favor of Mr.

Burnett by the Hamblen County Circuit Court dismissing the claim

against him as an individual through the grant of his Motion for

Summary Judgment. The same parties, Con Pac and James W. Burnett

d/b/a Burnett Produce Co., were involved in both actions. Both

suits arose from the same cause of action and sought payment for

the same overdue debt. Furthermore, the Trial Court’s order
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granting Mr. Burnett’s Motion for Summary Judgment was a judgment

on the merits.

Con Pac had the opportunity to appeal the order

dismissing the claim against Mr. Burnett in the first suit, No.

93-CV-492, but instead filed suit against Mr. Burnett for a

second time seeking judgment arising from the same claim. Con

Pac’s actions directly countervail the policy behind the doctrine

of res judicata. If Con Pac disagreed with the first dismissal

of the claim against Mr. Burnett, it’s remedy was to appeal that

judgment. Since there was no genuine issue of material fact and

Mr. Burnett was entitled to judgment as a matter of law based

upon res judicata, we find that the Trial Judge properly granted

summary judgment.

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for collection of costs

below. Costs of appeal are adjudged against Con Pac and its 

surety.

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

 (Not Participating) 

Charles D. Susano, Jr., J.