Hart v. Tourte

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 28, 1999

Cecil Crowson, Jr.
Appellate C ourt
DONALD HART, ) C/A NO. Clerk
03A01-9901-CH-00004
)
Plaintiff-Appellee, )
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) KNOX COUNTY CHANCERY COURT
)
)
)
RONALD TOURTE, )
) HONORABLE SHARON J. BELL,
Defendant-Appellant. ) CHANCELLOR

For Appellant For Appellee

KENNETH R. KRUSHENSKI RON CUNNINGHAM
Rogers, Hurst & Krushenski Finkelstein, Kern, Steinberg &
LaFollette, Tennessee Cunningham
Knoxville, Tennessee

O P I N IO N

AFFIRMED IN PART
VACATED IN PART
REMANDED Susano, J.

1
 This case involves a petition filed by Donald Hart

(“Hart”) seeking to register1 a judgment obtained by Hart against

Ronald Tourte (“Tourte”) in the State of California. The trial

court granted summary judgment to Hart while denying several

motions filed by Tourte. Tourte appeals, raising three issues

which present the following questions for our consideration:

1. Did the trial court err in denying
Tourte’s motion to dismiss, which motion was
based on the ground that Hart’s petition was
filed beyond the ten-year period of
limitations on judgments set forth in T.C.A.
§ 28-3-110?

2. Did the trial court err in denying
Tourte’s second motion to dismiss, which
motion was based on the ground that the prior
order of the Knox County Circuit Court
dismissing Hart’s earlier-filed petition to
register acts as a bar to his re-filing to
register and enforce the California judgment?

3. Did the trial court err in granting
Hart’s motion for summary judgment and in
denying Tourte’s motion for relief from the
California judgment under Rule 60.02,
Tenn.R.Civ.P.?

I

On December 31, 1986, Hart obtained a default judgment

in the amount of $12,189.74 plus interest against Tourte in the

Monterey County, California, Municipal Court. In July, 1994,

after locating Tourte in Knox County, Hart filed a petition in

Circuit Court seeking to domesticate the California judgment.

Upon Tourte’s motion, the Circuit Court dismissed the action

1
The petition was filed pursuant to the Uniform Enforcement of Foreign
Judgments Act, T.C.A. § 26-6-101, et seq.

2
pursuant to Rule 12.02(1), Tenn.R.Civ.P.,2 citing Hart’s failure

to attach a properly authenticated copy of the California

judgment3 to his petition, as required by T.C.A. § 26-6-104.4

On December 16, 1996, Hart sought further relief in the

California court by filing an “Application for and Renewal of

Judgment,” seeking to renew the California judgment of December

31, 1986.5 Apparently, without further court proceedings, the

judgment was renewed effective December 16, 1996.6 The record

before us contains a document entitled “Proof of Service” filed

in the California court on January 27, 1997. That document,

signed by a G. M. Rose, recites, under oath, that on January 23,

1997, he mailed a copy of Hart’s “Application for and Renewal of

Judgment” and associated court documents to Tourte and his

counsel at their respective addresses, which addresses are set

forth in the Proof of Service. One of the associated documents

2
That Rule provides that a party may file a motion to dismiss for “lack
of jurisdiction over the subject matter.” Rule 12.02(1), Tenn.R.Civ.P.
3
A certified copy of the California judgment was apparently attached to
the petition; but it was not “authenticated in accordance with the acts of
congress or the statutes of [Tennessee].” See T.C.A. § 26-6-104(a).
4
T.C.A. § 26-6-104 provides as follows:

(a) A copy of any foreign judgment authenticated in
accordance with the acts of congress or the statutes
of this state may be filed in the office of the clerk
of any circuit or chancery court of this state.

(b) The clerk shall treat the foreign judgment in the
same manner as a judgment of a court of record of this
state.

(c) A judgment so filed has the same effect and is
subject to the same procedures, defenses and
proceedings for reopening, vacating, or staying as a
judgment of a court of record of this state and may be
enforced or satisfied in like manner.
5
Tennessee has long recognized the concept of reviving a judgment. See
T.C.A. §§ 25-4-101, et seq. and 28-3-110(2). See also First Tennessee Bank
Nat’l Ass’n v. White, C/A No. 03A01-9711-CV-00514, 1998 Tenn.App. L EXIS 579
(Tenn.App., E.S., filed August 20, 1998).
6
See C AL . C IV . P ROC . C ODE § 683.120 (West 1999).

3
is a printed form entitled “Notice of Renewal of Judgment,”

signed by the Clerk of the California Municipal Court. Among

other things, the Notice makes four recitations:

1. This renewal extends the period of
enforceability of the judgment until 10 years
from the date the application for renewal was
filed.

2. If you object to this renewal, you may
make a motion to vacate or modify the renewal
with this court.

3. You must make this motion within 30 days
after service of this notice on you.

4. A copy of the Application for and Renewal
of Judgment is attached....

(Emphasis and italics in original). The parties agree that

Tourte took no action in the renewal proceeding in California.

On April 24, 1997, Hart filed a petition in the Knox

County Chancery Court seeking to register the renewed California

judgment. After filing an answer to Hart’s petition, Tourte

filed a number of motions: a motion to dismiss on the ground that

Hart’s cause of action was filed beyond the ten-year statute of

limitations applicable to judgments, as set forth in T.C.A. § 28-

3-110; a motion to dismiss on the ground that the Circuit Court’s

earlier order of dismissal had been on the merits and thus

operated as a “bar to any further litigation on this Judgment in

the State of Tennessee”; and a motion for relief from the

California judgment under Rule 60.02, Tenn.R.Civ.P.

With regard to his Rule 60.02 motion, Tourte contended,

among other things, that the California judgment was void because

4
he had not been properly served with process in the original

California action or the renewal action in that state. Tourte

attached to this motion an affidavit in which he states, in

pertinent part, as follows:

I never was served with any legal papers
concerning any lawsuit filed by Donald Hart
either against myself, or my corporation....
I was never served by any process server with
legal papers and I never received a copy of
the California Judgment that was attached to
[Hart’s] Civil Action that was filed in Knox
County Circuit Court in 1994. A collection
agency in Knox County contacted me by
correspondence dated May 6, 1994, about this
debt. That was the first time I had heard
anything about this matter since 1986. I
lived in California until June of 1987 and I
was never contacted by Donald Hart, or any
legal representative of his about any
lawsuit....

With regard to the current action pending in
Chancery Court in Knox County... I would
further add that to the best of my knowledge
I do not recall being served with any Notice,
or California Process regarding the renewal
of the 1986 California Judgment. The first
time I received any Notice of this California
Renewal was when I received papers from
Hart’s lawyer in California sometime around
the 27th day of January, 1997. Prior to this
time I do not recall ever being served with
any papers from California, nor do I recall
ever receiving any certified mail at my
address with any legal papers from
California.

Hart filed a motion for summary judgment. Tourte then

filed a response that contained essentially the same arguments

that had been set forth in his three motions. After hearing

argument on all of the above motions, but without receiving

evidence, the Chancery Court denied Tourte’s two motions to

dismiss, as well as his Rule 60.02 motion; it then granted

judgment to Hart on his motion for summary judgment.

5
6
 II

We turn first to Tourte’s issue regarding the statute

of limitations. He contends that because Hart’s action was filed

in the Chancery Court on April 24, 1997, more than ten years

after entry of the original California judgment on December 31,

1986, it is barred by operation of T.C.A. § 28-3-110. That

section provides, in pertinent part, as follows:

The following actions shall be commenced
within ten (10) years after the cause of
action accrued:

* * *

(2) Actions on judgments and decress [sic] of
courts of record of this or any other state
or government;....

We find Tourte’s contention to be without merit. It is

clear from the record that Hart is relying on the renewal of the

California judgment on December 16, 1996. Under California law,7

that renewed judgment is treated as a new judgment as of the date

of filing of the application for renewal -- December 16, 1996.

This being the case, the date of “accru[al]” for the purpose of

the statute of limitations under Tennessee law, see T.C.A. § 28-

3-110(2), is December 16, 1996, which, as we have previously

pointed out, is the effective date of the renewed judgment under

7
The applicable provision of California’s Code of Civil Procedure
provides as follows:

(b) Except as otherwise provided in this article, the
filing of the application renews the judgment in the
amount determined under Section 683.150 and extends
the period of enforceability of the judgment as
renewed for a period of 10 years from the date the
application is filed.

C AL . C IV . P ROC . C ODE § 683.120(b) (W EST 1999).

7
California law. Obviously, Hart’s filing in Tennessee on April

24, 1997, was well within the ten-year period of limitations when

that period is measured from the accrual date of December 16,

1996.

The Chancery Court was correct in denying Tourte’s

motion to dismiss based on the statute of limitations ground.

III

We next turn to Tourte’s issue regarding the doctrine

of res judicata. He contends that the Circuit Court’s order of

dismissal of March 27, 1994, is res judicata as to the claim

asserted in the instant litigation. Relying on T.C.A. § 26-6-

104, Tourte argues that the “[f]ailure to file a properly

authenticated judgment under the requirements of the [Uniform

Enforcement of Foreign Judgments Act, T.C.A. § 26-6-101, et

seq.], which results in a dismissal of the Plaintiff’s Petition

to register his Judgment should be considered fatal to the

Plaintiff’s cause of action.” Tourte also argues that “it should

be against the public policy of the State of Tennessee to allow a

Foreign Judgment creditor more than one attempt to use the Courts

of this State to enforce his Foreign Judgment.”

We cannot agree with Tourte’s position regarding this

issue. Generally speaking, the doctrine of res judicata “bars a

second suit between the same parties or their privies on the same

cause of action with respect to all issues which were or could

have been litigated in the former suit.” Richardson v. Tennessee

8
Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995)(quoting Goeke

v. Woods, 777 S.W.2d 347, 349 (Tenn. 1989)). It is well-settled

that the doctrine of res judicata is implicated only where the

prior judgment has concluded the rights of the parties on the

merits. Richardson, 913 S.W.2d at 459; A.L. Kornman Co. v.

Metropolitan Gov’t of Nashville & Davidson County, 391 S.W.2d

633, 636 (Tenn. 1965). In the instant case, it is clear that the

Circuit Court dismissed Hart’s first complaint on a non-merits

ground, i.e., Hart’s failure to attach a properly authenticated

copy of the California judgment to his petition for registration.

We therefore hold that the doctrine of res judicata does not

preclude Hart from filing a petition to domesticate the renewed

California judgment in the Chancery Court, and that the Chancery

Court properly denied Tourte’s second motion to dismiss. Despite

Tourte’s argument to the contrary, which argument is unsupported

by any authority, we fail to see how this holding can be viewed

as a violation of the public policy of this state.

IV

We next consider the propriety of the Chancery Court’s

grant of summary judgment to Hart. In this analysis, we review

the trial court’s grant of Hart’s motion against the standard of

Rule 56, Tenn.R.Civ.P. That rule provides, in pertinent part, as

follows:

...[the] judgment sought shall be rendered
forthwith 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

9
 material fact and that the moving party is
entitled to a judgment as a matter of law....

Rule 56.04, Tenn.R.Civ.P.

When reviewing a grant of summary judgment, an

appellate court must decide anew if judgment in summary fashion

is appropriate. Cowden v. Sovran Bank/Central South, 816 S.W.2d

741, 744 (Tenn. 1991); Gonzalez v. Alman Constr. Co., 857 S.W.2d

42, 44-45 (Tenn.App. 1993). Since this determination only

involves a question of law, there is no presumption of

correctness as to the trial court’s judgment. Robinson v. Omer,

952 S.W.2d 423, 426 (Tenn. 1997); Hembree v. State, 925 S.W.2d

513, 515 (Tenn. 1996). In making our determination, we must view

the evidence in the light most favorable to the nonmoving party,

and we must draw all reasonable inferences in favor of that

party. Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).

Summary judgment is appropriate only if there is no genuine issue

of material fact and if the undisputed material facts entitle the

moving party to a judgment as a matter of law. Rule 56.04,

Tenn.R.Civ.P.; Byrd, 847 S.W.2d at 211. In our analysis, “[t]he

evidence offered by the nonmoving party must be taken as true.”

Id. at 215.

In evaluating Hart’s motion for summary judgment, we

must take all of the statements contained in Tourte’s affidavit,

quoted earlier in this opinion, as true. We recognize that the

record contains evidence to the contrary; however, in the context

of summary judgment, such evidence must be disregarded. Id. at

10
210-11. Taking the statements contained in Tourte’s affidavit as

true, we find, for the purpose of summary judgment, that he was

not served with process in the original California proceeding.8

It is clear that Tourte’s testimony raises a genuine issue of

material fact regarding whether there was proper service of

process as to the underlying judgment which was renewed in the

most recent California proceeding -- the proceeding upon which

Hart now relies. Accordingly, we hold that the Chancery Court

erred in granting full summary judgment to Hart. Rule 56.04,

Tenn.R.Civ.P.; Byrd, 847 S.W.2d at 211. If Tourte was not

properly served in the original California proceedings -- and he

says under oath that he was not -- the judgment in that case is

void. We are not prepared to hold that a void judgment can form

the basis for a valid judgment when the latter judgment, although

a new judgment under California law, is nothing more than a

renewal of the earlier judgment. This is true even if the

renewal procedure was undertaken, as we find, in full compliance

with applicable California law.9 A judgment that is void because

it was obtained without in personam jurisdiction over the

defendant is void for all purposes -- including renewal.

8
We stress that our finding of no service is limited to our analysis of
the summary judgment issue. On remand, the trial court will have to
ascertain, in the first instance, where the preponderance of the evidence lies
on the question of whether or not Tourte was properly served with process in
the original California action.
9
A part of Tourte’s defense to the renewed judgment is embodied in his
assertion in his affidavit that “[t]he first time I received any Notice of
this California Renewal was when I received papers from Hart’s lawyer in
California sometime around the 27th day of January, 1997.” This affidavit
proves too much. In our opinion, the document that Tourte must be referring
to is the Proof of Service filed in the California court on January 27, 1997,
and signed by an individual whose address is the same as the address of Hart’s
counsel -- 300 Drakes Landing Rd., Ste. 250, Greenbrae, California 94904.
Since this document was served in full compliance with California law
regarding renewal of judgments, and since we find that Tourte acknowledges,
under oath, that he received it, we find no dispute in the record as to
whether Tourte was properly served with the requisite notice in the renewal of
judgment proceeding. If Tourte is to be successful in his defense to the
renewed judgment, he must show that the original judgment is void or subject
to some other defect that can be properly raised under his Rule 60.02 motion.

11
12
 V

Tourte also contends that this court should reverse the

Chancery Court’s denial of his Rule 60.02, Tenn.R.Civ.P., motion,

and that we should set aside or refuse to enforce the California

judgment. In this context, Tourte relies in part upon the

statements contained in his affidavit, in which he denies having

been engaged in any business enterprise with Hart so as to render

him liable in any way to Hart, and, as previously stated, denies

having been served with process in the original California

action.

A motion for relief from a judgment under Rule 60.02

addresses the sound discretion the trial judge; thus, the scope

of review on appeal is whether the trial judge abused his or her

discretion. Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97

(Tenn. 1993); Toney v. Mueller Co., 810 S.W.2d 145, 147 (Tenn.

1991).

Foreign judgments ordinarily are entitled to full faith

and credit in the courts of this state. Biogen Distributors,

Inc. v. Tanner, 842 S.W.2d 253, 256 (Tenn.App. 1992). We have

previously stated that “[t]here are a limited number of

circumstances where a foreign judgment may be denied full faith

and credit.” Benham v. Fisher, 650 S.W.2d 759, 760 (Tenn.App.

1983). T.C.A. § 26-6-104(c) provides that foreign judgments are

“subject to the same procedures, defenses and proceedings for

reopening, vacating, or staying as a judgment of a court of

record of this state and may be enforced or satisfied in like

13
manner.” Id; see also Biogen Distributors, 842 S.W.2d at 256.

Thus, “the grounds and procedures for vacating or reopening

foreign judgments are those contained in Tenn.R.Civ.P. 60.02.”

Id. A party seeking to attack the validity of a foreign judgment

bears a “stern and heavy” burden. Id.; Dement v. Kitts, 777

S.W.2d 33, 36 (Tenn.App. 1989). Issues of fact underlying the

foreign judgment may not form the basis of such an attack,

Benham, 650 S.W.2d at 760; but the judgment will not be afforded

full faith and credit where the foreign court lacked

jurisdiction. Id.; see also Dement, 777 S.W.2d at 36.

Tourte is entitled to challenge the renewed California

judgment on the basis that the California court lacked in

personam jurisdiction over him when it rendered its original

judgment -- the judgment whose renewal led to the filing of the

instant action. However, he is not entitled to attack the

renewed judgment on the ground that he was not properly served in

the renewal proceeding because, as we have previously indicated,

the trial court was correct in granting summary judgment as to

this part of Tourte’s Rule 60.02 motion since the undisputed

facts show that he was served in the renewal proceeding in full

compliance with California law. To the extent that Tourte

asserts other proper grounds under Rule 60.02, he is entitled to

a hearing on those other grounds; but he cannot attempt to re-

litigate the facts underlying the cause of action that led to the

original California judgment. That is not the office of a Rule

60.02 motion. See Benham, 650 S.W.2d at 760. To the extent that

his Rule 60.02 motion attempts to do so, it was properly subject

to the trial court’s grant of summary judgment to Hart.

14
 We reject Hart’s argument that Tourte waived his right

to challenge the validity of the California judgment when he

failed to attack it in the California renewal proceeding. We are

not prepared to hold that Tourte, a resident of a sovereign

state, who lives some 2,400 miles from the site of the court in

the forum state, was required to participate in a renewal

proceeding in the forum state in order to establish that he was

not served with process in the original proceeding; or forever

waive his right to contest the validity of the underlying

judgment. In our opinion, such a holding would offend the

“traditional notions of fair play and substantial justice”

embodied in the concept of procedural due process found in the

Fourteenth Amendment to the Federal Constitution. See Burnham v.

Superior Court of California, 495 U.S. 604, 622, 110 S.Ct. 2105,

2116-17, 109 L.Ed.2d 631 (1990) (citing International Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95

(1945)).

In the instant case, Hart is attempting to use a court

of this state to enforce his judgment. This is certainly

appropriate under the Uniform Enforcement of Foreign Judgments

Act, T.C.A. § 26-6-101, et seq.; but, by the same token, it is

likewise appropriate that Tourte be afforded an opportunity to

resort to the same court to pursue his attack on the validity of

the proffered judgment, under the well-established law pertaining

to relief under Rule 60.02, Tenn.R.Civ.P. This should be done at

a hearing at which the trial court receives testimony and other

evidence bearing on such of the grounds raised in Tourte’s motion

as can be properly asserted under Rule 60.02.

15
16
 VI

So much of the trial court’s judgment as denies the

appellant’s two motions to dismiss is affirmed. The judgment of

the trial court granting Hart summary judgment is affirmed (1) as

to Tourte’s assertion that he was not properly served with

process in the renewal of judgment proceeding in California, and

(2) as to all parts of Tourte’s Rule 60.02 motion that attempt to

re-litigate the facts underlying the cause of action that led to

the original California judgment. The remainder of the trial

court’s grant of summary judgment to Hart is vacated. This case

is remanded to the trial court for a hearing on the remaining

grounds of Tourte’s Rule 60.02 motion, consistent with this

opinion. Costs on appeal are taxed against the appellee.

__________________________
Charles D. Susano, Jr., J.

CONCUR:

________________________
Houston M. Goddard, P.J.

________________________
Herschel P. Franks, J.

17