### IN THE COURT OF APPEALS OF TENNESSEE AT MEMPHIS October 10, 2000 Session DOUGLAS R. SHANKLIN, M.D. v. UT MEDICAL GROUP, INC.

Direct Appeal from the Circuit Court for Shelby County No. 302611 T.D. Robert L. Childers, Judge

No. W1999-01982-COA-R3-CV - Filed November 6, 2000

This appeal arises from a trial court’s finding that a subsequent action by Doctor was barred under the doctrine of res judicata due to the court’s decision in an earlier case. On appeal, Doctor argued that his earlier acti

on for age disc

rimination and ret

aliation in violatio

n of the Tennesse

e Human Rights Act was not the sa me as th e current actio

n, which involves br

each of contra

ct and unjust enrichment . We affirm t he trial cou rt’s rulin g. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

t of the Circuit C

ourt Affirmed;

and Remanded D AVID R. F ARMER , J., delivered the opi nion of the court,

in which W. F RANK C RAWFORD , P.J., W.S. and H OLLY K. L ILLARD , J., joined. Donald A. Donati, Memphis, Tennessee, and William B. Ryan, Memphis, Tennessee, for the appellant, Douglas R. Shanklin, M.D. Bradley E. Trammell, Memphis, Tennessee, for the appellee, UT Medical Group, Inc. OPINION On June 30, 1997, D r. Doug las R. Shanklin (Dr. Shanklin) filed, pro se , a suit against UT Medical Group (UTMG) for age discrimination and retaliation in violation of

the Tennessee Human Rights Act. The basis

for his age discrimination claim was that UTMG had hired a younger woman to perform many

of his previous duties. This act resulted in a decrease in Dr. Shanklin’s salary . Dr. Shanklin’s retaliation acti on alleged that U

TMG had retaliate

d against him fo r his opposition to discriminatory

employment

practices. The specific retaliation alleged was that UTMG had revoked his usual teaching assignments, thus denying him the opportunity to fulfill the duties for which he was hired. The trial court, noting that UTMG had not been served with a copy of the complaint and summons until September 24, 1997, dismissed the action upon UTMG’s motion for insufficient service of process. The trial co urt n oted that Dr. Shanklin had violated Rules 3 and 4 of the-2-

Tennessee Rules of Civil Proce dure by fa iling to properly

serve UTMG prior

to the running of the statute of limitatio

ns. In June of 1999, Dr. Sha

nkli n filed an action for breach of contract and unjust enrichment against UTMG. UTMG filed

a motion to dismiss or alternatively for summary judgment based upon the argument that the action was barred by the doctr

ine of res judica

ta due to the court’s

decision in the earlier case. The

trial court agreed with UTMG and entered an order granting the motion. Dr. Shanklin filed this appeal arg uing that his 1997 proceedings and his current proceedings do not inv olv e th e sam e cau se o f act ion , an d, a s su ch, the doc tri ne o f res jud ica ta d oes not app ly. The issue presen

ted by the ap

pellant on appea

l, as we perceiv

e it, is as follows: Did the tr ial court e

rr in finding that Dr. Shanklin’s claims for breach of contract and unjust enrichment were barred by the doctrine of res judicata? Res Judicata The doctrine of res j udicata is well established i

n Tennessee cou

rts. “[R]es judicata

bars a secondsuit 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.” Hampton v. Tennessee Truck Sales, Inc. , 993 S.W.2d 643, 645 (Tenn. Ct. App. 19 99) (citin g Goeke v. Woods , 777 S.W.2d 347, 349 (Tenn. 1989)). The [doctrine] of res judicata is based on the principle not only that the same parties in the same

capacities, shou

ld not be required

to litigate anew a matter which might have bee n determi ned and settled in the former litigation, but . . . that litigation should be determined with reasonable expedition, and not be protract ed through inattention and lack of diligence. Jordan v. Johns , 79 S.W.2d 798, 802 (Tenn. 1935). “T he key to an

analysis und

er res judicata

is whether the issue could have been litig ated in the former lawsuit .” Baldwin v. Knox County Bd. of Educ. , No. 03A01-9903-CH-00110, 1999 WL 893827, at *2 (Tenn. Ct. App. Oct. 15, 1999) ( no perm. app. filed ) (emphasis added). Dr. Shanklin argues that the doctrine of res judicata does not apply in this case as his current proceeding and his 1997 proceeding involve diffe rent ca uses of action. Dr . Shanklin’s 1997 ca

se involved age discrimination and retaliation in violation of the Tennes see H uman Rights Act. H is current case involves claims of breach of employ ment c ontract and unjust enrichment by UTMG. A central issue in both cases is the reduction in Dr. Shanklin’s salary. Both of these case s cited this reduction in salary as a “cause of action.” We find that the key to our analysis of this case is whethe r the breach of c

ontract and unjust enrichment

claims “could hav

e been litigate

d in the former lawsuit.” Id. Upon examination of the-3-

record, it is quite clear to this court th at both of these claims could have and should have been litigatedin the first lawsuit

. As Dr. Shanklin fa

iled to do so

then, he is barred from doing so now. Any other fin ding in th is case wo

uld violat e the prin ciples of res judic ata. We must affirm the trial court’s ruling that Dr. Shanklin’s actions for unjust enrichment and breach of contract are barred by the doctrine of res judicata. Conclusion Based on the for

egoing conclu

sions, we hereby

affirm the ruling

of the trial court

. Cost on appeal are assessed against the appellant, Dr. Douglas R. Shanklin, and his surety , for which exe cut ion may i ssu e if nece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE