author: DAVID R. FARMER, J.,

text:
    REGIONS FINANCIAL CORPORATION, a Successor to Union Planters Corporation and Subsidiaries v. MARSH USA, INC., et al.
    Court of Appeals of Tennessee, at Jackson.
    Oct. 23, 2008 Session.
    Feb. 19, 2009.
    Application for Permission to Appeal Denied by Supreme Court Aug. 17, 2009.

      John McQuiston, Memphis, Tennessee, for the appellant, Regions Financial Corporation.
    H. Frederick Humbracht, Jr., Nashville, Tennessee, for the appellee, National Union Fire Insurance Company of Pittsburgh, PA.
    John R. Riddle, Dallas, Texas, Joseph T. Getz, Memphis, Tennessee, for the appel-lee, The St. Paul Mercury Insurance Company, and Michael G. McLaren and Vickie Hardy Jones, Memphis, Tennessee, for the appellee, Twin City Fire Insurance Company.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, P.J., W.S., and J. STEVEN STAFFORD, J., joined.

On appeal, Regions Financial Corporation (“Regions”) asserts numerous reasons why the doctrines of res judicata and collateral estoppel should not bar its claim against the Defendants National Union Fire Insurance Company of Pittsburgh, Pa. (“National Union”) St. Paul Mercury Insurance Company (“St. Paul”), and Twin City Fire Insurance Company (“Twin City”) (collectively “Defendant Excess Insurers”). Regions originally sued Defendants in federal court seeking indemnification pursuant to its insurance contract, and the District Court granted Defendants summary judgment because Regions failed to give simultaneous notice. Regions has now sued Defendant Excess Insurers in circuit court for breach of the same insurance contract. Regions claims that during the federal court appeal it discovered new evidence that it had given simultaneous notice to Defendant Excess Insurers through their agent. Regions claims, however, that it could not have discovered this evidence earlier because Defendant Excess Insurers concealed the agency relationship. The trial court granted Defendant Excess Insurers’ motions for summary judgment on the basis of res judicata. We affirm.

Background and Procedural History

Plaintiff/Appellant Regions Financial Corporation (“Regions”) filed this lawsuit in Shelby County Circuit Court on February 21, 2006 (“Shelby County suit”). The basis of the suit was that Regions sought indemnification from its insurers for several monetary losses it sustained through mortgage fraud and liability claims. Although Regions originally sued various different parties, the only Defendants on this appeal are Regions’ excess insurers.

A. The Insurance Claims

Regions and Marsh USA (“Marsh”) contracted on June 1, 1999, for Marsh to compile an insurance policy for Regions. Marsh negotiated a blended insurance program that included Continental Casualty Co. (“CNA”) as Regions’ primary insurer and a three-tier excess insurance program from Defendant Excess Insurers. CNA’s primary policy insured Regions up to $25 million, and Defendant National Union insured Regions for an additional $25 million once Regions had exhausted its primary policy (first excess tier). Defendant St. Paul insured Regions for another $25 million above the CNA and National Union policies (second excess tier), and Defendant Twin City insured Regions for $25 million more above St. Paul’s limit (third excess tier); each excess insurance policy required Regions to exhaust the limits of the underlying policies before the insurer must indemnify Regions for any loss. National Union and St. Paul also required Regions to give it notice simultaneously with any notice given under the primary policy, and Twin City’s policy included a integration clause that incorporated the underlying policies and obligated the insured to give notice pursuant to the underlying insurance provisions.

Between 1999 and 2001, Regions extended a running line of credit to Greatstone, a mortgage banking company. After Great-stone defaulted on its loans in 2001, Regions discovered that Greatstone had forged many of the borrower’s signatures to procure advances and Greatstone’s principals had permanently relocated to Costa Rica with those advances (“the Greatstone loss”). Regions claims that, to recoup its loss, it gave notice to CNA on September 20, 2001, and filed a formal complaint with CNA around February 15, 2002. Regions also claims that it gave Defendant Excess Insurers notice and proof of loss through its agent, Marsh. Regions alleges that Marsh sent a letter to Defendant Excess Insurers giving notice on March 12, 2002; Defendant Excess Insurers all deny receiving that letter. CNA denied Regions’ claim around March 19, 2002, and in November 2002 Regions filed suit in federal district court.

Regions also seeks indemnification for three other insurance claims that it claims should be covered by its policies with Defendant Excess Insurers. These three claims, which Regions dubs the “East Main Baptist Church litigation,” the “Con-ners suit” and “the SBU litigation,” arise from separate loan losses that arose during the policy period. Regions alleges that it advised Marsh of these potential claims, requested that Marsh give CNA notice of the claims, and sought to know if the excess insurers must also be notified. In its complaint, Regions alleges that it notified Marsh of the ongoing East Main Baptist Church litigation on July 13, 2000, the Conners suit on February 23, 2001, and of the SBU litigation on August 24, 2000.

B. The Lawsuits

From the issues raised on appeal it is apparent that Regions filed multiple suits resulting from its Greatstone loss. In May 2002, Regions filed suit against its primary insurer, CNA, in federal court in the Western District of Tennessee (“District Court”). Final judgment was entered with the District Court in August 2004. While post-judgment motions were pending with the District Court, the State of New York filed a complaint in a New York state court against Marsh alleging that it was secretly receiving payments from the parent companies of Defendants. Marsh and the New York Attorney General reached a settlement on January 30, 2005, and Marsh paid Union Planters, Regions’ predecessor, $190,108.80 pursuant to this settlement in September 2005. Meanwhile, the District Court disposed of the parties’ post-judgment motions on June 6, 2005, and Union Planters, Regions’ predecessor, immediately filed notice of appeal to the Sixth Circuit. In February 2006, while the federal proceedings were pending in the Sixth Circuit, Regions then filed the Shelby County Suit from which this appeal proceeds. A year later, on February 27, 2007, the Sixth Circuit affirmed the District Court. Subsequently, the trial court granted Defendant Excess Insurers summary judgment in the Shelby County suit on the basis of res judicata and collateral estoppel.

i. District Court Proceedings

We review each of these proceedings chronologically, beginning with Regions’ lawsuit in the federal court. Regions first filed suit in the Western District of Tennessee against CNA claiming diversity jurisdiction and alleging that the Greatstone loss was covered in Section E of the party’s contract as a loss resulting from fraud and that CNA was in breach of their contract by refusing to indemnify Regions for that loss. Regions then amended its complaint on October 11, 2002, to join Defendant Excess Insurers as parties and allege that its agent, Marsh, gave notice to Defendant Excess Insurers, entitling it to indemnification under the excess policies if its loss exceeded CNA’s policy limits. In both complaints, Regions sought a judgment declaring its rights and obligations under the contract and enforcement of the contract in the form of a monetary judgment.

The District Court entered an order on August 25, 2004, granting Regions’ motion for summary judgment against CNA and granting Defendant Excess Insurers’ motions for summary judgment against Regions. The District Court found that Regions gave CNA notice of the Greatstone loss on September 20, 2001 and submitted formal documentation of its claim to CNA on February 15, 2002. Regions claimed that its agent, Marsh, gave notice to Defendant Excess Insurers via letter on March 12, 2002. Viewing the facts in the light most favorable to Regions, the District Court accepted Regions’ argument that it gave CNA notice on February 15th and that it gave Defendant Excess Insurers notice on March 12th; the District Court still held, however, that a twenty-five day delay was not simultaneous notice. Because simultaneous notice was a condition precedent of Regions’ insurance contracts with Defendant Excess Insurers and Regions failed to give that notice, the District Court held that Defendant Excess Insurers were entitled to summary judgment.

On September 8, 2004, Regions filed a post-judgment motion to alter or amend the District Court’s judgment pursuant to Federal Rule of Civil Procedure 59 or, in the alternative, for relief from judgment pursuant to Federal Rule of Civil Procedure 60. Essentially, Regions argued for the District Court to alter or amend its decision that there was not simultaneous notice as an error of law or as being manifestly unjust, and Regions requested that the District Court certify the issue to the Tennessee Supreme Court. The District Court, however, denied both requests on June 9, 2005. Regions filed notice of appeal to the Sixth Circuit on July 6, 2005.

ii. New York Lawsuits

In the meantime, the State of New York was investigating Marsh’s relationship with various insurance companies. In an entirely unrelated proceeding, New York’s Attorney General filed suit against Marsh in October 2004 alleging fraudulent business practices, antitrust violations, securities fraud, unjust enrichment, and common law fraud. The essence of the Attorney General’s complaint was that Marsh contracted with clients to procure insurance policies for them, claiming that it advocated on the client’s behalf and not representing insurance companies, while, simultaneously, Marsh received contingent commissions from the insurance companies and steered its clients toward certain companies based on those commissions. Marsh settled with the Attorney General on January 30, 2005. Pursuant to this agreement, Marsh was to pay $850,000,000.00, proportionately, to its policyholders and undertake various business reforms. As one of Marsh’s policyholders, Regions received $190,108.80 from the settlement account. Regions claims that it only learned in September 2005, when it received payment pursuant to Marsh’s settlement agreement with the Attorney General, that Defendant Excess Insurers paid Marsh contingent commissions.

iii. Sixth Circuit Appeal

After filing its notice of appeal, Regions filed a motion with the Sixth Circuit requesting that it certify to the Tennessee Supreme Court the legal question whether an insurance company must show that it was actually prejudiced by late notice in order to defeat coverage. The Sixth Circuit denied that motion on February 1, 2006. The parties argued before the Sixth Circuit on December 5, 2006, and the Sixth Circuit affirmed on February 27, 2007. Union Planters Bank, N.A. v. Continental Cas. Co., 478 F.3d 759 (6th Cir.2007). The Sixth Circuit upheld the District Court’s determination that Regions could not enforce its insurance contracts with Defendant Excess Insurers because it failed to meet the condition precedents of the contracts — namely, a twenty-five day delay did not constitute simultaneous notice to the excess insurers. The Sixth Circuit also agreed that Tennessee law would not excuse noncompliance with the notice provision even if Defendant Excess Insurers were not prejudiced by the delay.

iv. Shelby County Suit

Although Regions filed its Shelby County suit in February 2006 while its appeal was pending with the Sixth Circuit, the trial court did not issue any orders on the matter until after the Sixth Circuit rendered its decision. In the Shelby County suit, Regions alleged in its original complaint that Marsh breached its contract with Regions, was professionally negligent in monitoring Regions’ losses and providing notice thereof, and negligently misrepresented that it had given Defendant Excess Insurers notice. In its fourth claim for relief, Regions alleged that Defendant Excess Insurers breached their contracts with Regions by “failing and refusing to provide coverage to [Regions].” Although Regions filed an Amended Complaint in February 2006, it did not allege any new causes of action.

On August 24, 2007, Regions filed a motion to amend the amended complaint and first alleges that Defendant Excess Insurers induced Marsh to breach its contract with Regions. ■ Regions also alleged in its motion that Marsh was both its agent and Defendant Excess Insurers’ agent, so when Regions gave Marsh notice of the Greatstone claims that also constituted notice to the Defendant Excess Insurers. On September 4, 2007, Regions actually filed Notice of its Proposed Amendment to the First Amended Complaint in the Shelby County suit. Regions formally alleged that Defendant Marsh breached its fiduciary duty of loyalty to Regions by acting as an undisclosed, paid agent of Defendant Excess Insurers. Regions also asserted that Defendant Excess Insurers induced Marsh to breach its contractual fiduciary obligation to Regions. Regions requested treble damages and attorney fees against Defendant Excess Insurers pursuant to Tennessee common law, Tennessee Code Annotated § 47-50-109, and Tennessee Code Annotated § 47-18-101 et. seq., as an unfair or deceptive practice. Four months later, Regions filed a revised notice of the proposed amendment to its first amended complaint limiting its inducement to breach of contract claim solely against Defendant National Union and abandoning its Consumer Protection Act argument completely. Regions filed a second revised notice on January 15, 2008, further articulating the same claims that it alleged in its first revised notice.

The trial court denied Regions’ Motion to Amend its Amended Complaint and granted Defendants’ pending motions for summary judgment. The trial court found that the same issues in this case were previously asserted in the District Court, and that Regions’ claim against Defendant National Union for the Greatstone loss was barred by res judicata and that the doctrine of collateral estoppel barred Regions’ three additional claims for coverage. The trial court then certified the case as a final judgment pursuant to Tennessee Rule of Civil Procedure 54.02. From this judgment, Regions filed timely notice of appeal to this Court.

Issues

Regions raises only one issue on appeal: it asserts that the trial court erred by granting Defendants’ Motions for Summary Judgment on the basis of res judica-ta and collateral estoppel. As stated verbatim in its brief, Regions presents the issue as follows:

Whether Defendants Excess Insurers have carried their burden of proof to establish, based on the prior case of Union Planters Bank, N.A. v. Continental Casualty Co., 478 F.3d 754[759] (6th Cir.2007), the defenses of res judicata and/or collateral estoppel to the claims made in the complaint and the proposed amendments to the complaint in this case, such that the trial court’s granting of the Defendants’ Motions for Summary Judgment was proper?

Regions argues that res judicata and collateral estoppel do not preclude their claims for several reasons. In support of this one issue, Regions makes several different arguments. First, Regions asserts that concealed facts create a new cause of action that was not and could not have been at issue in the federal case. Second, Regions argues that the District Court’s statements regarding the liability of Defendant Excess Insurers was dicta because each underlying insurance policy had not been exhausted. Third, Regions claims that there is no preclusive effect because the District Court’s determination that simultaneous notice was not provided to Defendant Excess Insurers dealt with a different section of the insurance policy than at issue in this case and was a declaratory judgment. Fourth, Regions argues that this situation warrants an exception to general preclusion rules both because it was not a fair and full adjudication, violates public policy, and is necessary to avoid the inequitable administration of the law. Finally, Regions argues that pursuant to Tennessee Rule of Civil Procedure 56.04, the trial court should not have granted summary judgment until Plaintiffs obtained discovery from Defendant Excess Insurers. Defendant Excess Insurers raise the additional issue that Regions should be judicially estopped from claiming that Marsh was Defendant Excess Insurers’ agent because it claimed that Marsh was its agent in the previous litigation.

Standard of Review

Regions appeals the trial court’s award of summary judgment to Defendant Excess Insurers arguing that res judicata and collateral estoppel do not bar its claims. We review an award of summary judgment de novo, affording no presumption of correctness to the conclusions of the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn.2002). An award of summary judgment is appropriate if

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving part is entitled to a judgment as a matter of law.

Tenn. R. Civ. P. 56.04.

To support a motion for summary judgment, the movant must do more than assert, in a conclusory fashion, that the non-movant has no evidence. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 4 (Tenn.2008). Instead, the movant “must either affirmatively negate an essential element of the nonmoving party’s claim or establish an affirmative defense.” Id. at *5 (citations omitted). When a party has submitted a properly supported motion for summary judgment, the burden shifts to the non-moving party to establish the existence of disputed material facts. Id. In determining whether to award summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn.2000). The court should award summary judgment only when a reasonable person could reach only one conclusion based on the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if there is any doubt about whether a genuine issue of material fact exists. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998).

Choice of Law

The parties do not dispute the material facts of this case; the sole question is whether, as a matter of law, res judicata or collateral estoppel bars Regions’ claims. Because the issue in this case is the pre-clusive effect of a federal court judgment, we also review whether state or federal law applies. The general rale is that a court gives a judgment the same preclu-sive effect as the court in which the prior judgment was rendered. Mitrano v. Houser, 240 S.W.3d 854, 861 (Tenn.Ct.App.2007); see also James Wm. Moore, 18 Moore’s Federal Practice § 130.21 (Matthew Bender 3d ed.). Federal law, therefore, governs what effect the prior federal court judgment has on these proceedings. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-08, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). The United States Supreme Court has pronounced, however, that in diversity cases, the preclusive effect of a federal judgment is generally the same as that attached to a state court judgment from the forum in which that rendering federal court sits. Id. at 508, 121 S.Ct. 1021. In this case, the District Court for the Western District of Tennessee rendered the original judgment; it is for this reason that we apply Tennessee law to determine whether the federal court judgment bars the case at hand.

Analysis

During the proceedings before the trial court, Regions made several different allegations against Defendant Excess Insurers. In its original complaint, filed February 21, 2006, the only claim for relief that Regions sought against Defendant Excess Insurers was for breach of contract “by failing and refusing to provide coverage to [Regions].” On August 24, 2007, Regions filed a motion to amend the amended complaint and first alleges that Defendant Excess Insurers induced Marsh to breach its contract with Regions. Regions also alleged in its motion that Marsh was both its agent and Defendant Excess Insurers’ agent, so when Regions gave Marsh notice of the Greatstone claims that also constituted notice to the Defendant Excess Insurers.

We note, as an initial matter, that Regions does not raise an issue with the trial court’s order denying its motion to amend the amended complaint in its Statement of the Issues. We may consider an issue waived where it is argued in the brief but not designated as an issue. Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn.Ct.App.2002). Likewise, where a party fails to address an issue in its argument section of the brief, we consider the issue to be waived. Id. The trial court’s denial of the motion to amend was within its sound discretion, and we would not reverse absent a showing that the trial court abused its discretion. Hawkins v. Halt, 86 S.W.3d 522, 532 (Tenn.Ct.App.2001). Regions does not raise any error regarding its denied Motion to Amend in the Statement of the Issues, and it does not argue in its brief that the trial court abused its discretion in denying Regions’ Motion to Amend. In its reply brief, Regions asserts that it did assert that the trial court erred in denying its Motion to Amend and states that if it was necessary to have that precise wording, it asserted the claim at that time. However, “it is not the office of a reply brief to raise issues on appeal.” Gentry v. Gentry, No. E2000-02714-COA-R3-CV, 2001 WL 839714, at ⅜4 n. 3 (Tenn.Ct.App.2001) {no perm. app. filed). Accordingly, we decline to address Regions’ allegations that res judicata does not bar the fraud and inducement to breach contract causes of actions that Regions alleged in its Motion to Amend the Amended Complaint. The basis upon which Regions can claim on appeal that it has a new cause of action, therefore, rests solely upon the allegations in its amended complaint filed on February 24, 2006, and the incorporated original complaint. These pleadings solely allege that Defendant Excess Insurers breached their contract to provide insurance coverage to Regions.

I. Claim Preclusion-Same Cause of Action

Regions argues that the judgment in the federal court does not prohibit its breach of contract claim in state court because new facts have altered the parties’ legal rights and it could not have raised this issue before the District Court. The new fact that Regions asserts changes its legal rights is the evidence that Defendant Excess Insurers paid Marsh to procure insurance contracts for it. From this evidence, Regions argues that Marsh acted as Defendant Excess Insurers’ agent, notice to Marsh that Regions was seeking coverage for the Greatstone loss was imputed to Defendant Excess Insurers, Defendant Excess Insurers, therefore, received simultaneous notice as was required by the insurance contracts, and Defendant Excess Insurers breached the insurance contracts by not indemnifying Regions. Regions relies upon these allegedly new facts to also argue that res judicata does not apply to bar its claim because it could not have raised this argument in the District Court pleadings because Defendant Excess Insurers concealed its relationship with Marsh.

Although the parties argue the merits of this ease employing the terms res judicata and collateral estoppel, we note that “res judicata” broadly refers to “[a]n issue that has been definitively settled by judicial decision.” Black’s Law Dictionary 1336-37 (8th ed.2004); see Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 n. 11 (Tenn.1995). This broad definition, however, lumps together two different preclusion doctrines. Black’s Law Dictionary 1336-37 (8th ed.2004). Res judicata, as it has come to be understood in a narrow sense is a claim preclusion doctrine that “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 raised in the former suit.” State ex. rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn.Ct.App.2000). To avoid confusion, we have adopted the terminology of the Restatement (Second) of Judgments and refer to the traditionally narrow definition of res judicata as “claim preclusion.” In re Bridgestone/Firestone, No. W2006-02550-COA-R3-CV, 2008 WL 4258516, at *5 n. 8 (Tenn.Ct.App.2008). Likewise, collateral estoppel is an issue preclusion doctrine, State ex. rel. Cililar v. Crawford, 39 S.W.3d 172, 178 (Tenn.Ct.App.2000), and we will refer to it as “issue preclusion.” We only employ the term res judicata as it broadly applies to both preclusion doctrines. Bridgestone/Firestone, 2008 WL 4253516, at *5 n. 8.

A. Discovery of New Facts

Claim preclusion bars multiple lawsuits between the same parties on causes of action that were or could have been litigated in the first lawsuit. The party asserting the defense of claim preclusion has the burden of proving 1) that the underlying judgment was rendered by a court of competent jurisdiction, 2) that the same parties were involved in both lawsuits, 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). Regions concedes that the District Court and Sixth Circuit are courts of competent jurisdiction and that the same parties were involved in both suits.

On appeal, Regions first alleges that Defendant Excess Insurers failed to prove that the same cause of action was involved in both suits. There is no question, however, that both the Shelby County suit and the federal suit pleadings allege a breach of contract claim. Regions bases its argument, however, upon the statement that

[a] prior judgment or decree does not prohibit the later consideration of rights that had not accrued at the time of the earlier proceeding or the reexamination of the same question between the same parties when the facts have changed or new facts have occurred that have altered the parties’ legal rights and relations.

Lien v. Couch, 993 S.W.2d 53, 56 (Tenn.Ct.App.1998) (citing White v. White, 876 S.W.2d 837, 839-40 (Tenn.1994)). Regions argues that evidence that Defendant Excess Insurers paid Marsh to procure insurance contracts for them was not a “fact at issue” in the federal proceedings and Regions should, therefore, be able to re-examine the same question again.

The Tennessee Supreme Court articulated in 1944 that “[a] plea of res judicata is not available merely because the subject matter of two suits is the same. The cause of action in the two suits must be the same.” Copeland, v. Copeland,, 180 Tenn. 609, 177 S.W.2d 555, 555 (1944). The language that Regions relies upon distinguishes separate causes of action regarding the same subject matter. In White, a wife sought an adjudication that her husband was deceased; a jury found, however, that wife had not established by a preponderance of the evidence that her husband had died. White v. White, 876 S.W.2d 837, 838-39 (Tenn.1994). Nearly five years later, Wife filed another suit against the same defendants seeking essentially the same relief and alleging the same facts as in her prior suit. Id. at 839. When the defendants asserted res judicata, the Tennessee Supreme Court held that res judi-cata did not bar wife’s claim. As part of its analysis, the Supreme Court said that the passage of time since wife’s first suit was new evidence and the cause of action in the first case was whether Husband had died by the time of trial while the issue in the second case was whether Husband had died by the time that the insurance policy had expired, which was nearly a year after the first trial. Id. at 840. Therefore, the Court reasoned that neither the issue to be determined nor the evidence was the same as in wife’s first suit.

The difference between the Supreme Court’s analysis in White and Regions’ argument here is that White and the cases that cite to it consider new facts and evidence that occurred after the first adjudication. Facts occurring after an adjudication may give rise to a new cause of action that may be on the same subject matter as the first action but would not be barred by res judicata. See, e.g., Copeland v. Copeland, 180 Tenn. 609, 177 S.W.2d 555 (1944); Banks v. Banks, 18 Tenn.App. 347, 77 S.W.2d 74 (1934). Regions, however, is arguing that this same principle applies to facts that it alleges occurred before it filed suit in District Court but which it claims it had not discovered until it appealed to the Sixth Circuit. Two months after the Tennessee Supreme Court issued White, this Court addressed a similar argument in Short v. Short. Short v. Short, No. 03A01-9402-CH-00065, 1994 WL 315902 (Tenn.Ct.App.1994). This Court commented that

[w]e must be careful to distinguish between a “change in facts” or “new facts [which] have occurred after the original judgment” and “newly discovered evidence.” Newly discovered evidence is simply evidence of facts as they existed at the time of the original trial and cannot be said to be a “change in facts” or “new facts.”

Id. at *4. As we articulated in Short, the Tennessee Supreme Court’s language that res judicata does not bar facts that have changed or new facts does not extend to newly discovered evidence. Id. Defendant Excess Insurers paid Marsh to procure insurance contracts with Regions before Regions filed its District Court suit; the evidence that Regions wishes to now introduce is merely newly discovered and is insufficient to demonstrate that Regions has a new cause of action.

B. Issue Could Not Have Been Raised

In a similar argument, Regions also asserts that it could not have raised its agency argument to the District Court because it did not know when it filed its complaint that Defendant Excess Insurers paid Marsh for procuring insurance contracts. Regions claims that it only became aware on September 16, 2005, when Regions received payment from Marsh pursuant to the terms of its settlement agreement with the New York Attorney General, that Defendant Excess Insurers were also paying Marsh; this was several months after the District Court disposed of the parties’ post-trial motions and after Regions had filed its appeal to the Sixth Circuit. The trial court found that the facts surrounding Defendant Excess Insurers’ payments to Marsh were “known before the [Sixth Circuit] ruled and there was plenty of time to raise or present those facts to either the District Court or the [Sixth Circuit.]”

On this appeal, Regions argues that the trial court erred in finding that Regions could have raised the agency issue before the District Court pursuant to Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”) because consideration of the new facts was purely discretionary. Regions’ argument centers around the principle that claim preclusion only bars a second suit “on the same cause of action with respect to all issues which were or could have been raised in the former suit.” State ex. rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn.Ct.App.2000). Regions argues that an issue only “could have been raised” if the moving party had an unfettered right to raise it. As it is within a trial court’s discretion to relieve a party from a judgment pursuant to a Rule 60(b) motion, Regions now argues that it did not have this unfettered right and that it should, therefore, be permitted to file its claim as an independent action.

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.’ ” Patton v. Estate of Upchurch, 242 S.W.3d 781, 790 (Tenn.Ct.App.2007) (quoting Young v. Barrow, 130 S.W.3d 59, 64 (Tenn.Ct.App.2003)). This Court tests whether a cause of action is the same by considering whether the primary right and duty or wrong are the same in each case. Id. (quoting Gerber v. Holcomb, 219 S.W.3d 914, 917-18 (Tenn.Ct.App.2006)). Because the complaints in both the federal suit and the Shelby County suit allege that Defendant Excess Insurers breached the same contract in the same manner, it is clear that they involve the same cause of action.

The public policy underlying the doctrine of res judicata is to “promote finality in litigation in order to conserve judicial resources and to relieve litigants from the cost and vexation of multiple lawsuits.” Crawford, 39 S.W.3d at 178. Unlike issue preclusion, claim preclusion bars relitigation of the same cause of action not only as to matters actually determined, but “also to other matters which in the exercise of due diligence could have been presented in the prior action.” Gerber, 219 S.W.3d at 918; see also Jordan v. Johns, 168 Tenn. 525, 79 S.W.2d 798 (1935). Because Regions admits that it learned of Defendant Exeess Insurers’ relationship with Marsh before the federal court entered a conclusive judgment, there is no question that it could have, with due diligence, presented this issue in a Rule 60(b) motion. Therefore, without addressing whether it could have been raised before the District Court at any point earlier than Regions discovered it, we find that claim preclusion does bar this issue.

Regions argues that “[i]t is established law that if the matter was one that the Court, in its discretion, might have allowed or not, this does not meet the ‘could have been raised’ test.” Because the trial court has the discretion to grant a Rule 60(b) motion, Regions claims that it could not have raised its newly-discovered issue in that manner. Regions, however, fails to cite any Tennessee authority, and we find none, that res judicata only bars issues and facts over which the trial court has no discretion. In support of this proposition, Regions cites to federal case law that a plaintiff is not required to amend an existing lawsuit to add a claim that arose after it filed the first suit. In applying this rule, however, Regions again presupposes that its current breach of contract claim arose after it filed its breach of contract claim in federal court; as we have already discussed, that is not the case.

We find the facts in this case analogous to a different line of cases. In both the federal case and this state court case, Regions argues that it gave Defendant Excess Insurers simultaneous notice; the only new issue that Regions asserts is how it gave Defendant Excess Insurers notice. Generally,

[t]his Court cannot accept the argument ... 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 plaintiffs 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.

McKinney v. Widner, 746 S.W.2d 699, 706 (Tenn.Ct.App.1987). Further, we have held that, “[t]he estoppel of a judgment or decree extends to all matters material to the decision of the cause which the parties exercising reasonable diligence might have brought forward at the time.” Id. at 705, (citing State ex. rel. French v. French, 182 Tenn. 606, 188 S.W.2d 603 (1945)). This Court has specifically held that claim preclusion barred a second suit against a defendant employer where its employee learned new facts in a subsequent lawsuit that revealed that defendant was employee’s real employer. Boyd v. Bruce, No. M2000-03211-COA-R3-CV, 2001 WL 1346264, at *4 (Tenn.Ct.App.2001), perm, app. denied (Tenn. Feb. 11, 2002). In Boyd, this Court stated that

Appellants argue that facts revealed in subsequent lawsuits regarding who was the real employer and the decisions of the court thereon have changed the cause of action. We disagree. A change in Appellant’s theory of liability does not create a new cause of action. Tennessee law is clear that res judicata bars the litigation of all issues that could have been litigated and all facts pertaining to those issue that could have been brought forward.

Id. We find the basic facts of this case to be significantly analogous to those in Boyd and, therefore, find that Regions’ theory as to how Defendant Excess Insurers received simultaneous notice of its claims for the Greatstone loss could have been raised in the District Court proceedings and are, therefore barred by claim preclusion.

C. Separate Contract Provision

Regions also argues that its breach of contract action in this case is a different cause of action than in the federal case because it now seeks coverage pursuant to Sections A, B, C, and D of its insurance contract, while the District Court only adjudicated its rights under Section E of the contract. Regions’ argument, however, fails because Regions is essentially arguing that it should be permitted to split its claim.

Claim preclusion prohibits 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 or series of transactions that can be brought together.” In re Order to Encapsulate Native American Indian Qravesites in Concrete and Pave Over with Asphalt, 250 S.W.3d 873, 882 (Tenn.Ct.App.2007) (citing Bio-Technology Gen. Corp. v. Genentech, Inc., 80 F.3d 1553, 1563 (Fed.Cir.1996)). As we have previously discussed, Regions adjudicated the Greatstone cause of action in federal court. Where a plaintiff brings two separate breach of contract actions based upon the same wrong but argues liability pursuant to a different contract in the second case the second action is barred by the doctrine of claim preclusion. Trew v. Wayne-Gossard Corp., 694 S.W.2d 956, 958 (Tenn.Ct.App.1985); Federico v. Aladdin Indus., No. M2004-01693-COA-R3-CV, 2006 WL 558897 (Tenn.Ct.App.2006), perm. app. denied (Tenn. Aug. 21, 2006).

As for the three additional insurance claims for which Regions now seeks indemnification, these are also barred by claim preclusion. Claim preclusion applies to all issues that were or could have been raised regarding the same cause of action. State ex. rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn.Ct.App.2000). The same cause of action in both this case and the federal case is Defendant Excess Insurers’ refusal to indemnify Regions pursuant to its insurance claims. See Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1270 (11th Cir.2002) (Although plaintiff alleged 42 separate wrongs not brought in the prior lawsuit, both lawsuits involved breaches of the same contract committed by the same parties involving the same general type of conduct, and claim preclusion, thus, barred the claims made in the second suit); Ellis v. Amex Life Ins. Co., 211 F.3d 935, 938 (5th Cir.2000) (Where insurer denied benefits under same insurance policy, plaintiffs two suits both arose out of the same transaction). Regions’ argument that it may now recover its liability in the East Main Baptist Church litigation, the Conners suit and the SBU litigation because it seeks indemnity pursuant to different sections of its insurance contract does not overcome the fact that it split its original action; Regions should have brought these claims before the district court when it sued Defendant Excess Insurers for the Great-stone loss, and these claims are now barred by claim preclusion.

II. Dicta

Regions asserts that at the time the district court granted summary judgment in favor of Defendant Excess Insurers, coverage had not yet been implicated under the excess insurance policies. It claims, therefore, that it had no right to sue Defendant Excess Insurers in that action, and any statement made by the federal courts regarding the excess policies is dicta. See Fite v. Wood, 194 Tenn. 308, 312-14, 250 S.W.2d 543 (1952). Because res judicata does not apply to dicta, Regions claims that the Sixth Circuit’s determination has no preclusive effect. We strongly disagree; the district court granted summary judgment to Defendant Excess Insurers on the basis that Regions failed to met a condition precedent of the insurance policies under which Regions sought coverage.

Regardless of Regions’ allegations before this Court that it may have improperly joined Defendant Excess Insurers, the district court dismissed those claims pursuant to Defendant Excess Insurers’ motions for summary judgment. As the Tennessee Supreme Court noted in Fite, the very definition of the term dicta indicates that it “has no bearing on the direct route or decision of the case but is made aside or on the way and is, therefore, not a controlling statement to courts when the question rises again that has been commented on.” Id. at 314, 250 S.W.2d 543. A motion for summary judgment, on the other hand “goes directly to the merits of the litigation.” Anderson v. Rayner, No. W2004-00485-COA-R3-CV, 2005 WL 3543682, at *56 (Tenn.Ct.App.2005) (no perm. app. filed) (quoting Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993)). We do not find that the district court’s determination was dicta, and we, therefore, find no merit to Regions’ argument that it has no preclusive effect.

III. Declaratory Judgment

Regions also asserts that declaratory judgments are only conclusive with respect to the precise issues actually and necessarily determined in the action. See Empire Fire & Marine Ins. Co. v. J. Transp., Inc., 880 F.2d 1291, 1296 (11th Cir.1989). Because Regions sought a declaration of rights and obligations of the parties under various insurance contracts in federal court, it claims that the district court action was simply a declaratory judgment. In addition, Regions asserts that the federal court only adjudicated those contract rights under Section E of the insurance policy, so liability claims pursuant to Sections A, B, C, and D of the policies were never precisely and necessarily determined. Regions, therefore, asserts that its claims are not barred by res judicata.

We, however, simply cannot agree that Regions merely sought a declaratory judgment in the federal court. As the Tennessee Supreme Court recently reiterated, “‘[declaratory judgments’ are so named because they proclaim the rights of the litigants without ordering execution or performance. Their purpose is to settle important questions of law before the controversy has reached a more critical stage.” Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 837 (Tenn.2008) (citations omitted). In its amended complaint filed with the district court, Regions requested that “should the [c]ourt determine that [Regions’] covered loss exceeds Continental’s limit of liability under the Policy, then [Regions] is entitled to indemnification of its loss under one or more of the policies issued by National Union, St. Paul, and Twin City. Regions clearly sought more than simply a declaration of rights; it sought enforcement of its indemnification rights pursuant to the contract. Because we find that the federal court determination was more than a declaratory judgment, Regions’ argument on this matter must fail.

IV. Exceptions to Res Judicata

Regions also argues that in this case we should adopt and apply several exceptions to res judicata that are found in the Restatement (Second) of Judgments § 28. Section 28, titled as Exceptions to the General Rule of Issue Preclusion, states 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 in the following circumstances.
(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) 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 ...
(5) There is a clear and convincing need for a new deteymination of the issue (a) because of the potential adverse impact of the determination on the 'public interest or the interests of person not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

Restatement (Second) of Judgments § 28 (1982) (emphasis added). Regions argues, according to the Restatement, that this Court should not bar its claims on the basis of res judicata for three separate reasons: (1) there was a lack of fair and full adjudication in the prior case, (2) there is a clear' and convincing need for a new determination of the issue because of the potential adverse impact of the determination on the public interest, and (3) to avoid the inequitable administration of the law.

Although the Restatement (Second) of Judgments § 28 refers to issue preclusion, our discussion, thus far, has been that claim preclusion bars Regions’ suit. In addition, we note that the Restatement itself discourages applying exceptions to res judicata:

There are instances in which the interests supporting a new determination of an issue already determined outweigh the resulting burden on the other party and on the courts. But such instances must be the rare exception, and litigation to establish an exception in a particular case should not be encouraged. Thus it is important to admit an exception only when the need for a redetermi-nation of the issue is a compelling one.

Restatement (Second) of Judgments § 28 cmt. g (1982).

Regions argues that we should not apply res judicata in this case because it did not have an adequate opportunity or incentive to obtain a full and fair adjudication. In support of this position, Regions cites Restatement (Second) of Judgments § 28, comment j which discusses when there is a lack of fair opportunity to litigate an issue in the initial action and states that “[i]n an action in which an issue is litigated and determined, one party may conceal from the other information that would materially affect the outcome of the case. Such concealment may be of particular concern if there is a fiduciary relationship between the parties.” Restatement (Second) of Judgments § 28 cmt. j (1982). Restatement (Second) of Judgments § 26 explains that this exception may also apply to claim preclusion. Restatement (Second) of Judgments § 26(l)(f). Section 26, comment j states that Section 26(l)(f) may be applicable where a plaintiff can show by clear and convincing evidence that its failure to include part of its claim in the earlier action was caused by defendants’ fraud, concealment, or misrepresentation.

Regions also argues that this Court should allow relitigation of this claim to avoid violation of public policy or manifest injustice. Regions’ alleged injustice is that it be bound by the Sixth Circuit determination, which it claims is wrong and violates Tennessee public policy. Regions argues that the District Court and Sixth Circuit erroneously distinguished its claim from the case Alcazar v. Hayes, 982 S.W.2d 845 (Tenn.1998), where the Tennessee Supreme Court, on public policy grounds, required an insurer to demonstrate prejudice from an insured’s failure to provide notice before the insured forfeited coverage. Alcazar, 982 S.W.2d at 849-58. Additionally, Regions broadly argues that the question whether an insurer must be prejudiced by late notice under a claims-made insurance policy is an issue of first impression that public policy requires that the Tennessee Supreme Court address.

The final exception that Regions advocates that we should apply in this case is Restatement (Second) of Judgments § 28(2)(b), which claims that a new determination of an issue of law is warranted to avoid the inequitable administration of laws. Based on its presumption that the Sixth Circuit erred, Regions argues that barring its claim would be an inequitable application of law because Regions would somehow be bound by a different law than any other party insured by a claims-based policy.

We believe, however, that Tennessee has a long-standing tradition in upholding judgments. We, therefore, decline Regions’ invitation to adopt and apply any of these three exceptions to claim preclusion. As the Tennessee Supreme Court has stated,

[t]he 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 v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn.1976) (internal citations omitted).

Y. Discovery

Regions’ final argument is that the trial court should not have granted Summary Judgment before Regions conducted discovery. In its Motion to Compel Discovery Regions requested records of the dealings between Marsh and the excess carriers. As we have previously discussed, when a party submits a properly supported motion for summary judgment, the burden shifts to the nonmoving party to establish the existence of disputed material facts. Rains v. Bend of the River, 124 S.W.3d 580, 587-88 (Tenn.Ct.App.2003).

[Nonmoving] parties may deflect a summary judgment motion challenging their ability to prove an essential element of their case by (1) pointing to evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) rehabilitating evidence challenged by the moving party, (3) producing additional evidence that creates a material factual dispute, or (4) submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery.

Id. (citing Staples v. CBL & Assoc., Inc., 15 S.W.3d 83, 88-89 (Tenn.2000) and McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.1998)). Where, as here, a party seeks to continue a motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56.07, we review the trial court’s refusal to grant a continuance for an abuse of discretion. Gilchrist v. Aristorenas, No. W2007-01919-COA-R3-CV, 2008 WL 4981103, at *4 (Tenn.Ct.App.2008) (no perm. app. filed).

This Court has stated that “a trial court’s decision involving discovery must be viewed in the context of the issues being tried and the posture of the case at the time the request for discovery is made.” Price v. Mercury Supply Co., 682 S.W.2d 924, 935 (Tenn.Ct.App.1984). We, therefore, consider whether the requested discovery would have assisted Regions in responding to Defendant Excess Insurer’s motion for summary judgment. See Simmons v. State Farm Gen. Ins. Co., No. W2003-02643-COA-R3-CV, 2004 WL 2715341, at 5 (Tenn.Ct.App.2004) (no perm. app. filed). Regions’ request to discover records of the dealings between Marsh and Defendant Excess Insurers relates solely to whether Regions gave simultaneous notice to Defendant Excess Insurers through Marsh as a dual agent. As we have discussed throughout this opinion, however, Marsh’s status as a dual agent, has no bearing upon the res judicata effect of the federal court action. Because the requested discovery, therefore would not have aided Regions in opposing Defendant Excess Insurers’ motion for summary judgment, we find that the trial court acted within its discretion in ruling on the motion for summary judgment before compelling discovery.

VI. Judicial Estoppel

Defendant Excess Insurers asserts an additional issue: that Regions should be judicially estopped from claiming that Marsh was Defendant Excess Insurers’ agent. In federal court Regions claimed that Marsh was its agent. Defendant Excess Insurers asserts that it is inconsistent and contradictory for Regions to now claim that Marsh was Defendant Excess Insurers’ agent.

The doctrine of judicial estoppel provides that

a party will not be permitted to occupy inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had or was chai-geable with, full knowledge of the facts, and another will be prejudiced by this action.

Obion County v. McKinnis, 211 Tenn. 183, 364 S.W.2d 356, 357 (1962). Regions does not assert in this case that Marsh was not its agent; rather, Regions asserts that Marsh was both it and Defendant Excess Insurers’ agent. Tennessee recognizes that a person can be a dual agent. See Johnson v. LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 344 (Tenn.2002). We do not find that Regions’ argument that Marsh was Defendant Excess Insurers’ agent is contrary or inconsistent with its assertion in the District Court that Marsh was its agent.

Conclusion

In light of the foregoing, we affirm the judgment of the trial court. Costs of this appeal are taxed to the Appellant, Regions Financial Corporation, and its surety, for which execution may issue if necessary.

      . It was actually Union Planters that contracted with Marsh USA, but as of June 29, 2005, Union Planters Corporation merged into Regions Financial Corporation. To avoid unnecessary complication, we will simply refer to both entities as “Regions.''

      . Regions also filed this suit against Joseph Lammel, an employee at Marsh. Regions' allegations against Lammel generally mirror its claims against Marsh. The distinction between the two is not significant to this appeal, so we will refer to both entities as "Marsh.”

      .Regions and Marsh renewed this agreement in September 2000, October 2001, October 2002, and June 2003.

      . The District Court also noted that Defendant Excess Insurers denied receiving this letter.

      . The only instance where the United States Supreme Court says it would not apply this rule is "in situations in which the stale law is incompatible with federal interests." Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497. 509. 121 S.Ct. 1021. 149 L.Ed.2d 32 (2001). The example given is where a state does not preclude the dismissal of a case for willful violation of discovery orders. There is nothing in the present case to indicate that this exception would apply here.

      . Federal Rule of Civil Procedure 60(b) provides relief from a judgment or order even after the time has passed to file a motion for a new trial or to alter or amend a judgment. The relevant provisions are as follows:
      (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
      (1) mistake, inadvertence, surprise, or excusable neglect;

        (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under rule 59(b);
      (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
      (4) the judgment is void;
      (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
      (6) any other reason that justifies relief.
      (c) Timing and Effect of the Motion.

        (1)Timing. A motion under Rule 60(b) must be made within a reasonable time— and for reasons (1), (2), and (3) [under Rule 60(b) ] no more than a year after the entry of the judgment or order or the date of the proceeding.

        (2)Effect on Finality. The motion does not affect the judgment's finality or suspend its operation
      (d) Other Powers to Grant Relief. This rule does not limit a court's power to:
      (1) entertain an independent action to relieve a party from a judgment, order, or proceeding;
      (2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or
      (3)set aside a judgment for fraud on the court.

      . Restatement (Second) of Judgments § 26(1)(0 states the following:
      When any of the following circumstances exists, the general rule of [claim preclusion] 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: (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.
      Restatement (Second) of Judgments § 26(l)(f) (1982).

      . Restatement (Second) of Judgments § 26 comment j states:
      A defendant cannot justly object to being sued on a part or phase of a claim that the plaintiff failed to include in an earlier action because of the defendant's own fraud. Thus, when the defendant takes several articles at one time and on being asked by the plaintiff fraudulently denies taking some of them and suit is brought for the remainder, a judgment in that action does not bar the plaintiff from subsequently maintaining an action for those articles not included in the first action.
      Restatement (Second) of Judgments § 26 comment j (1982).

      . In its brief, Regions cites to State ex rel. Cihlar v. Crawford, 39 S.W.3d 172 (Tenn.Ct. App.2001) for the proposition that Tennessee has adopted this exception. In that case, however, now Justice Koch, while sitting for this Court, applied Restatement (Second of Judgments) § 28(2)(b) for the proposition that issue preclusion might not bar a new determination where there has been an intervening change in the applicable law. Crawford, 39 S.W.3d at 179. Regions does not cite to any Tennessee case, nor do we find any, where a court failed to apply claim preclusion to avoid the "inequitable administration of laws."


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Tennessee v. Kim GESELBRACHT.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Assigned on Briefs July 28, 2009.
    Sept. 24, 2009.
    Application for Permission to Appeal Denied by Supreme Court March 15, 2010.

      Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; J. Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney General, for the appellant, State of Tennessee.
    Carol Ann Barron, Dayton, Tennessee, for the appellee, Kim Geselbracht.
   OPINION

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court,

in which JOSEPH M. TIPTON, P.J., and D. KELLY THOMAS, JR., J., joined.

On January 22, 2009, the Rhea County Criminal Court dismissed two counts of driving under the influence (“DUI”) against the defendant, Kim Geselbracht. The trial court determined that a law enforcement officer’s ignoring the defendant’s repeated requests for an independent blood test for blood alcohol content (“BAC”) denied the defendant his constitutional and statutory rights. The State appeals, arguing that the trial court erred by dismissing the charges. Upon our review, we affirm the judgment of the trial court.

On August 3, 2007, the defendant was arrested for DUI. In April 2008, a Rhea County grand jury charged the defendant with two counts of DUI. See T.C.A. § 55-10-401 (2004). On August 6, 2008, defense counsel filed several motions to suppress evidence. These motions challenged the initial investigatory stop of the defendant and the test results from the Intoximeter EC/IR II (“breathalyser”), citing several deficiencies in the test administration and the equipment used in the BAC testing. After holding a motions hearing on December 5, 2008, the trial court dismissed the charges based on its determination that the defendant was denied due process by a Rhea County law enforcement officer’s refusing to permit him an independent BAC analysis. The State filed a timely notice of appeal.

At the motions hearing on December 5, 2008, defense counsel argued that law enforcement officers refused the defendant an opportunity to obtain an independent blood test for BAC pursuant to Code section 55-10-410(e). Counsel argued that, because the breathalyser malfunctioned, the defendant “wanted the right to be able to have his own testing done.” Defense counsel argued that the refusal to allow the independent test was a violation of the defendant’s right to due process.

Deputy Zack Davis of the Rhea County Sheriffs Department testified that he observed a Corvette “cross[] the fog line three times” for intervals of three to five seconds. Deputy Davis activated his blue lights, and the Corvette stopped in a parking lot. Deputy Davis noted that the vehicle traveled “for a little while on the shoulder of the road” before completely stopping. Upon speaking with the defendant, who was driving the vehicle, Deputy Davis noticed a faint smell of alcohol coming from the vehicle. Deputy Davis testified that after the defendant admitted drinking three or four beers at Paradise Bar, he asked the defendant to exit the vehicle. Deputy Davis said that the defendant swayed while standing and failed the horizontal gaze nystagmus, one-leg stand, and walk-and-turn tests. Based upon his observations, Deputy Davis arrested the defendant for DUI at approximately 11:38 p.m. When asked whether the defendant requested an independent blood test, Deputy Davis responded, “No, not that I recall.” At the Rhea County Jail, Deputy Davis turned the defendant over to Sergeant Jake Miller.

Sergeant Miller testified that at the time of the hearing he had worked at the Rhea County Jail for one year* and eight months and that he had attended classes and attained certification for use of the breathalyser. He estimated that he had operated the machine more than 25 times. He testified that he observed the defendant for 20 minutes preceding his breathalyser test and that the machine mandated a timed 20-minute period before allowing a defendant to blow into the machine. Sergeant Miller stated that the defendant did not smoke, vomit, or introduce foreign substances into his mouth during that time period. He testified that the procedures that he followed conformed with those set forth by the Forensic Services Division of the Tennessee Bureau of Investigation. He further testified that the breathalyser had been tested prior to the defendant’s taking the test and that it functioned properly.

Sergeant Miller testified that the breathalyser was programmed to allow three attempts to obtain a sufficient sample. He said that the defendant blew into the breathalyser three times and that, on each occasion, the machine reported “insufficient sample.” After his third attempt, the breathalyser aborted the test. Sergeant Miller testified that he could not determine whether the defendant intentionally gave an insufficient sample. Sergeant Miller then restarted the machine to conduct another test, which required another 20-minute waiting period. The defendant’s second test showed a BAC of .16 percent.

Sergeant Miller testified that he did not recall the defendant’s asking for a blood test or requesting to have someone come to the jail and take an independent blood test. He stated that, had the defendant asked for such a test, he would have refused pursuant to the normal procedure. He further testified that no one arrived at the jail to take an independent blood sample from the defendant.

On cross-examination, Sergeant Miller agreed that, as of August 2007, he had only been certified to operate the breathalyser for a “very short time” and had only operated it “a dozen, maybe a half a dozen” times.

The defendant, who resided in Ringgold, Georgia, testified that on the day in question, he had driven to Rhea County to participate in a karaoke contest for a radio station with his brother-in-law. He testified that, while lighting a cigarette in his vehicle, he noticed a police cruiser with its lights engaged behind him. The defendant recalled that he pulled over and that Deputy Davis approached his window and informed the defendant that he had been “hesitating.” He said that Deputy Davis also asked whether he had been drinking or had any drugs in the vehicle and insisted that he had observed the defendant throw something underneath his seat. The defendant told Deputy Davis that he did not realize he was hesitating and that he had drunk two or three beers during the five-hour period he spent at the Paradise Bar. He also told Deputy Davis that he did not have any drugs.

The defendant testified that Deputy Davis asked him to exit his vehicle. The defendant said that Deputy Davis “rather abruptly” took off the defendant’s glasses and then asked him to do the walk and turn test. The defendant did not recall whether Deputy Davis explicitly instructed him to touch his heel to his toe. He testified that after the test, Deputy Davis arrested him for DUI. He maintained that Deputy Davis did not administer a horizontal gaze nystagmus test or a one-leg stand test. The defendant testified that, meanwhile, another officer questioned his wife, who was riding in the vehicle with him, about drugs.

The defendant testified that Deputy Davis handcuffed him and placed him in the back of the patrol car. He stated that Deputy Davis then returned his glasses and said, “I’m going to give you one more chance,'we’re, going to search your car, and if there are any drugs in that car, you’re going to be in much bigger trouble than you are right now.... ” He testified that the law enforcement officers searched his vehicle. The defendant was then transported to jail.

The defendant testified that Sergeant Miller provided him with the implied consent form but did not read it to him. The defendant stated that he initially refused to submit to the breathalyser test because, from his understanding, “you never take a breathaly[s]er that a blood test was much more reliable.” He said, “I wanted to have a blood test to make sure that I wouldn’t get into something like this with the breathaly[s]er.” The defendant testified that he “[v]ery explicitly” told Sergeant Miller that he wanted a blood test “[njumerous times” but that Sergeant Miller stated that the defendant was “not going to get a blood test.”

The defendant further testified that Sergeant Miller threatened to arrest his wife for public drunkenness if he did not submit to the breathalyser. He testified that, after “several back and forths” he consented to the breathalyser. He stated that, during the 20-minute waiting period, Sergeant Miller did not watch him as he had testified but instead performed other tasks about the station. The defendant testified that, the first two times he blew into the breathalyser “zeros came up” and that Sergeant Miller declared, “[Tjhere’s something wrong with this machine.” The defendant stated that Sergeant Miller then moved him to another part of the room where he could not see the machine. Sergeant Miller returned later and asked him to attempt the breathalyser again.

He also stated that Sergeant Miller denied his requests for a blood test after he took the breathalyser test. The defendant said, “I asked afterwards and they said there’s no need, we’ve got what we want, and you’re going to jail.”

On cross-examination, the defendant admitted that he did not arrange for a doctor or nurse to take a blood sample; however, he said, “I asked them to allow me to have a blood test, expecting that they would explain what ... was required to do that.” He agreed that neither he nor his wife “t[ook] any steps to have someone come down and draw [his] blood.” He further admitted that he did not ask for a telephone call. The defendant maintained that he had the financial ability to pay for an independent blood test.

After allowing the defendant and the State to further brief the issue of whether the law enforcement officers deprived the defendant of his statutory and constitutional rights, the court filed a memorandum opinion and order dismissing the case on January 22, 2009. The court found that the defendant was stopped under suspicion of DUI and that he was arrested after he failed “certain field sobriety tasks.” The trial court found,

It is uncontradicted that the [defendant stated he did not trust the breathalyser test and that he wanted to have a blood test to verify the results of the breathalyser. The [defendant testified that his request was ignored and that he did not know what procedures were necessary in order for him to give the requested blood sample, but that he was financially capable of paying the costs and of arranging for someone to come to the jail and take his blood had those requirements been requested.

The trial court’s order explained that the defendant’s ignorance of the requirements to individually pay for and arrange transportation for an independent blood test did not affect his right to possibly mitigating evidence. The court reasoned that the “actions / inactions of Officer Miller in ignoring the [defendant's request for an independent test was tantamount to suppression of evidence by the State which was possibly favorable to the [d]efendant” and that such action frustrated the reasonable efforts of the defendant to obtain exculpatory evidence. The court concluded that the defendant was denied “both his statutory rights and his due process rights” and that “the only proper remedy is dismissal of the case.”

The State appeals, arguing that the trial court erred in dismissing the charges against the defendant “when [the defendant] failed to show that the police hindered his efforts to obtain an independent blood alcohol test.” The State posits that law enforcement officers could not have hindered the defendant’s efforts to obtain independent testing because “the defendant failed to show that he took any measures to obtain an independent test.” The State argues that the police have no affirmative duty to assist a defendant in obtaining evidence for his defense. Lastly, the State argues that the court erred in determining that Sergeant Miller’s actions violated Code section 55-10-410(e) because this section is inapplicable to the present case.

The defendant responds that the trial court properly dismissed the charges “[b]ased upon the deliberate or intentional misconduct by Sergeant Miller in failing to give the defendant a reasonable opportunity to obtain his own evidence, available only for a short period of time.” Also, the defendant maintains that Code section 55-10-410(e) applies to this case and further supports the dismissal of the charges.

Lastly, the defendant alleges that the State’s appeal is frivolous and requests that the State pay his costs and expenses pursuant to Code section 27-1-112.

I. Right to Independent BAC Testing

The trial court determined that Sergeant Miller’s denial of the defendant’s request for a blood test violated the defendant’s statutory and constitutional rights. We note that a trial court’s factual findings are conclusive on appeal unless the evidence preponderates against them. State v. Binette, 33 S.W.3d 215, 217 (Tenn.2000); State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996); see State v. Mitchell, 137 S.W.3d 630, 637 (Tenn.Crim.App.2003). Questions of credibility, the weight and value of the evidence, and the resolution of conflicting evidence are matters entrusted to the trial judge. Odom, 928 S.W.2d at 23. The application of the law to the facts, however, is reviewed de novo on appeal. State v. Keith, 978 S.W.2d 861, 864 (Tenn.1998). With these standards in mind, we will evaluate the defendant’s statutory and constitutional rights in turn.

Tennessee Code Annotated section 55-10-410(e) provides that a person tested for BAC “shall be entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory of that person’s own choosing and at that person’s own expense.” T.C.A. § 55-10-410(e) (2004). The State argues that, because “the State did not obtain a blood or urine sample from the defendant,” the statute does not apply to the present case. The defendant disagrees and argues that the court correctly determined that Sergeant Miller denied him of his statutory right.

The State in its brief quotes State v. Gilbert, 751 S.W.2d 454, 460 (Tenn.Crim.App.1988), to argue that Code section 55-10-410(e)’s provision for independent BAC testing “ ‘presupposes that a sample or specimen is in existence at the time of the request; and the sample or specimen is of sufficient size or quantity that it can be made available to the accused or his expert.’ ” Upon our review of Gilbert, we find the State’s argument misplaced. The quoted material from Gilbert applies to discovery rules regarding the independent testing of a pre-existing sample. Id. at 460; see Tenn. R.Crim. P. 16(a)(1)(G). The court did not address Code section 55-10-410(e) until later in its opinion. Id. at 461. The Gilbert court simply stated that Gilbert’s reliance on Code section 55-10-401(e) was misplaced because “[t]he record [was] void of any evidence that the defendant requested an additional specimen of blood.” Id. (emphasis added).

Further, we agree with the defendant that this court has determined that Code section 55-10-410(e) provides a right to an independent blood or urine sample to challenge the result of a breath test. In State v. Johnson, this court determined that “[t]he defendant’s greatest challenge to the accuracy of the breath test is the independent blood test to which each accused has a statutory right.” State v. Johnson, 717 S.W.2d 298, 305 (Tenn.Crim.App.1986) (citing T.C.A. § 55-10-410(e)). This court has held that, when a defendant submits to a breath test as requested by law enforcement officers, he is then entitled to independent testing pursuant to Code section 55-10-410(e). State v. Choate, 667 S.W.2d 111, 112 (Tenn.Crim.App.1983) (“If [the defendant] had taken the [breath] test offered by the police he would then have had a statutory right to further tests pursuant to [Code section] 55-10-410(e).”). Thus, we hold that in the present case, when the defendant completed a breath test, he had a right pursuant to Code section 55-10-410(e) to an additional blood or urine sample for his independent analysis.

The State also argues that “[t]he trial court erroneously determined that the defendant was denied due process when officers declined to explain the procedure for obtaining an independent blood alcohol test.” Apart from Code section 55-10-410(e), a defendant’s “due process rights [are] violated when the police interfere[] with the [defendant’s attempt” to obtain independent BAC testing. State v. Livesay, 941 S.W.2d 63, 66 (Tenn.Crim.App.1996). This is because “ ‘[t]he denial of an opportunity to procure a blood test on a charge of intoxication prevents the accused from obtaining evidence necessary to his defense.’ ” Id. (citation omitted). As stated above, this right to independent BAC testing does not place upon law enforcement officers an affirmative duty “to make a blood test available to the defendant by transporting him from the place of his incarceration to a hospital for the requested test,” see Choate, 667 S.W.2d at 113, or a duty to administer a blood test, see Live-say, 941 S.W.2d at 66 (citing Brown v. Mun. Ct. of L.A. Jud. Dist., 86 Cal.App.3d 357, 150 Cal.Rptr. 216, 219 (1978)). However, “ ‘in no event can an officer frustrate the reasonable efforts of an accused to obtain a timely sample of his blood without denying him due process of law.’ ” Id. at 66 (quoting Brown, 150 Cal.Rptr. at 219).

This court, in Livesay stated, “We do not believe that simply suppressing the State’s blood alcohol test is a sufficient safeguard of the [defendant's right to be able to gather and preserve evidence in his defense.” Id. We then determined that, when a State’s actions foreclose a fair trial by denying the defendant’s access to such exculpatory evidence, the proper remedy is dismissal. Id. (citing Commonwealth v. Hampe, 419 Mass. 514, 646 N.E.2d 387 (1995); McNutt v. Sup. Ct. of Ariz., 133 Ariz. 7, 648 P.2d 122 (1982)).

Having determined that both Code section 55-10-410(e) and principles of due process are applicable in this case, we must now determine whether Sergeant Miller violated either the defendant’s statutory or constitutional rights. We acknowledge that this court has determined that a defendant, pursuant to the statute, does not have a right “to be advised of his privilege of obtaining a sample of his blood to be tested independently” by his arresting officers. State v. McKinney, 605 S.W.2d 842, 846 (Tenn.Crim.App.1980); see also State v. Gray, No. M2007-02360-CCA-R3-CD, 2008 WL 2579175 (Tenn.Crim.App., Nashville, June 26, 2008) (citing Choate, 667 S.W.2d at 113).

The trial court in the present case considered the defendant’s asking for a blood test to be a “reasonable effort” that was “frustrated” by the inaction of Sergeant Miller and that “ignoring the [d]efendant’s request for an independent test was tantamount to suppression of evidence by the State which was possibly favorable to the [defendant.” In light of Livesay, the trial court determined that dismissal of the case was the appropriate remedy.

The State first argues that the defendant failed to request an independent blood BAC test and that, therefore, no due process violation occurred; however, as we have already stated, the trial court’s factual findings to the contrary are conclusive on appeal. Binette, 33 S.W.3d at 217; Odom, 928 S.W.2d at 23, The State next argues that, “even if such a request was made, the defendant failed to show that the police hampered or obstructed any efforts on his part to obtain an independent blood test.” The State suggests that, in order to qualify as an “attempt” to obtain an independent BAC test, a defendant must telephone for a person to arrive at the jail to take the blood sample, arrange for that person to arrive at the jail, and/or affirmatively state his desire to pay for the test. The State maintains, because the defendant only asked for the additional testing and did not “t[ake] any steps towards procuring a blood test,” Sergeant Miller could not have prevented or hampered the availability of additional testing.

The State cites Livesay in support of its position. In Livesay, after arresting Live-say for suspected DUI, the officer gave Livesay a choice between a breath and a blood test. Livesay, 941 S.W.2d at 64. Livesay chose a blood test and was transported to a hospital where two tubes of blood were drawn from Livesay. Id. Upon arriving at the jail, Livesay was permitted a telephone call, and he called his physician and requested he come to the jail “to obtain an additional blood sample for analysis.” Id. An officer at the jail overheard the conversation and told Livesay that his doctor was not permitted to come to the jail. Id. At Livesay’s request, the jailer then spoke with the doctor over the receiver to confirm that he was not permitted to come to the jail and take an additional sample. Id. Livesay’s physician testified that, had he been permitted, he would have driven to the jail and obtained an additional blood specimen for analysis. Id. The trial court determined that the officer prevented the defendant from obtaining exculpatory evidence in violation of the defendant’s due process rights and dismissed the case, and this court affirmed. Id. at 64-65.

The State also cites State v. Choate in support of its position; however, in Choate the defendant refused the breathalyser test and demanded a blood test in lieu of the breath test. Choate, 667 S.W.2d at 112-13. Because Choate refused to take the requested breathalyser test, the law enforcement officers “took no affirmative steps to assist the defendant in obtaining a blood sample.” Id. at 112. Unlike Choate, the defendant in this ease asked for an additional blood sample for independent testing after submitting to a breathalyser test.

Lastly, the State relies on this court’s unpublished opinion in State v. Jackie Lynn Gray, No. M2007-02360-CCA-R3-CD, 2008 WL 2579175 (Tenn.Ct.App., Nashville, June 26, 2008). After being arrested for suspicion of DUI, Gray requested a blood test, to which the officer initially agreed. Id., slip op. at 3. A few seconds later, however, the officer determined that he would give Gray a breath test instead. Id. Gray responded that he would “ ‘probably flunk’ ” the breath test. Id. After completing the breath test, Gray asked the officer to take him to the hospital for a blood test, which the officer refused. Id. The trial court found that Gray “requested a blood test after submitting to the breathalyser test but made no attempt to procure the test other than to ‘raise Cain’ in the drunk tank.” Id,., slip op. at 4. We did not disturb the trial court’s determination. Id.

The State’s argument suggests that a violation of the statute or of due process principles occurs only when the law enforcement officers’ obstruction of a defendant’s attempt to obtain independent testing reaches the extreme level described in Livesay. Further, the State argues that a defendant’s simply requesting an additional test cannot constitute a “reasonable effort” without further action. We disagree.

The defendant testified that, upon his mistrust of the breathalyser, he requested a separate blood test. Sergeant Miller responded that another test was not necessary and that “we’ve got what we want, and you’re going to jail.” We cannot fathom what other “reasonable effort” the defendant could have taken towards obtaining a separate blood test under these circumstances. Unlike the defendant in Livesay, many people accused of DUI will not know to immediately arrange for someone to arrive at the jail to obtain a separate sample. Unlike in Gray, where the trial court clearly discredited Gray’s claim that he legitimately desired a separate test, in the present case the trial court determined that the defendant’s requests were genuine inquiries into how he could obtain a separate blood test. The trial court in this case determined that it was unreasonable to expect the defendant, who was 61 years old at the time of arrest and had no prior DUI offenses, to know of the specific requirements of obtaining a separate BAC test. We also note the defendant’s testimony that he was capable of arranging for a sample and paying for the testing. The issue before us is factually intensive, and we will not disturb the trial court’s finding that Sergeant Miller’s ignoring the defendant’s legitimate request for a blood test amounted to “frustrating” a “reasonable effort” to obtain exculpatory evidence. We affirm the trial court’s dismissal of the charges.

II. Frivolous Appeal

The defendant, in his response brief, alleges that the State’s appeal is frivolous, and he requests damages pursuant to Code section 27-1-122. Our statutory scheme allows for “just damages against the appellant, which may include, but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of appeal.” T.C.A. § 27-1-122. “An appeal is frivolous when it has no reasonable chance of success, ... or is so utterly devoid of merit as to justify the imposition of a penalty.” Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn.Ct.App.2006) (internal citations and quotation marks omitted). Granting restitution for a frivolous appeal rests solely in the discretion of this court. See id. at 180-81.

The defendant argues that the State “presents no justifiable questions” and that “it can be reasonably inferred that the appeal serves only to delay and burden the other parties.” We wholly disagree. As can be gleaned from the lengthy analysis above, the State’s appeal presented genuine questions of law and fact. Further, we cannot discern any benefit the State would obtain through undue delay. We hold that the State’s appeal is not frivolous and deny damages pursuant to Code section 27-1-122.

III. Conclusion

In light of the foregoing analysis, we affirm the trial court’s dismissal of the case, but we deny the defendant’s request for damages pursuant to Code section 27-1-122.