# FILED

April 7, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk REMINGTON INVESTMENTS, ) INC., ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9809-CH-00512 v. ) ) Rutherford Chancery RONALD S. OBENAUF an d ) No. 97CV-107 ARDETH OBENAUF, ) ) Defendants/Appel

lants. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHAN CERY COURT FOR RUTHERFORD COUNTY AT MURFREESBORO, TENNESSEE

THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR

W. MITCHELL CONE DAVID P. CAÑAS Williams & Prochaska, P.C. 401 Church Street,

Suite 2600 Nashville, Tennessee 37219

ALIX COULTER CROSS Harwell Howa

rd Hyne Gabbert & Manner, P.C. 1800 First American Center 315 Deaderick Street Nashville, Tennessee 37238 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

This is an appeal from a grant of summary judgment by the trial court domesticating

aConnecticut judgment under Tennessee Code A

nnotated section 26-6-101 et seq. aga

inst both defendants.

I. The Connectic

ut Action

In September 1990, Connecticu t Saving s Bank brought suit in the Superi or Court of the Judicia

l District of New

Haven, Connectic

ut aga ins t Ronald S. Obenauf and Ardeth H. Obenauf on a promissory note in the

amount of $34,000, executed b

y Ronald S. Ob

enauf and dated March 27, 1990. Plaintiff alleged thatit was the

current holder of the promissory note and that Ronald S. Obenauf had fai led to m ake monthly payments in accordance there with. The ba nk de manded judgm

ent of the amount

of the promissor

y note together w

ith interest and costs. The ban

k further sought fee s and expense s, includ ing reasonable

attorney fees, asserting that plaintiff had been harmed by the failure of the defendant to make payment on the promissory note.

A second count

of the complaint adopted by reference the allegations of count one and further

alleged that on Janua

ry 25, 1990,Rona ld S. Obenauf had transferredproperty at 52 M aple Avenue We st, Haddam, Connecticut, to the defendant Ardeth H. Obenauf for one dol lar. The bank all

eged that the conveyance was fraudulent and was without substant

ial consid e ration and rendered Ronald S. Obenauf unable to pay his existing debts. This count further asserted tha t defendant Ardeth H. Obenauf had pa

rticipated in this fr

audulent transfer and that plaintiff had been damaged by the fraudulent conveyance.
The complaint then prayed for relief as follow s: "1. Damages 2. That the conveyance

from RonaldS. Obenauf to Ardeth H. Obenauf be set aside and declared null and void as to the plaintiff. 3. Attorney's f

ees, costs and expe

nses. 4. Such other relief as th e Court deems appropriate."-3- On January 10, 1991,

Connecticut attorne

y, Brian E.Kaligian,
a ddr essed a letter to Ronald C ohen, Esquire, a

ttorney for Con

necticut Savings Bank, with copies t

hereof to Ronald and

Ardeth Obenauf.This letter read : I have finall

y been able to reach my clients, the Obenauf's withregard toyour suit on the $40,000.00 Promissory Note. In response

to my inquirie s regarding this m atter, my clients have provided me wi

th acopy of the $34,000.00 Commercial Promissory

Note marked "PAID" by the Bank. I enclose this copyfor your revie

w. I expect that

you will be fili

ng a Withdrawal of this act ion and I will look for ward to receiving a copy of the Withdrawal at your convenience. If you have any

questions or comm

ents regarding

this matter, please do not hesitate to contact me.

On July 15, 1991, Brian E. Kaligian executed an appearance doc

ument to make him a

ttorney of rec

ord for the defenda

nts Ronald

S. Obenauf

and Ardeth H. Obenauf.

On August 6, 1991, Ann H amilton M aher filed a "dem and for disclosure of defense" pursuan t to Connecticut Pra

ctice Book paragra

ph 236 against both defendants . Copi es of these pleading s were served on Brian E. Kaligian, Esquir

e, attorney f

or the defendants.
Apparently

receiving no answe

r, counsel for pla

intiff filed a

motion for default judgment pursuant to Co nnecticut Practice Book sec

tion 236 for the failure of the defendants to disclose a defe nse wit hin the time allowed by law. Motion for default j udgment was gra nted on October 18,

1991.
Judgment was enteredagainst both defendan ts on Decembe

r 18, 1991 in the amount of

$41,175.75, togethe

r with costs in the amount of $ 629.50. No post judgment motions were

filed and no appeal was perfected in the a ppellate courts of Connectic

ut.
Subsequently

the Connecticut Savings Bank went into FDIC receivership.-4-

II. The Tenne ssee Domestication

In September 1995 , FDIC assigned w ithout recourse to Rem

ington Investments, Inc. the Connecticut judgment against the defendants Obenauf.
On January 28,

1997, pursuant to

Tennessee Code Annotated sec tion 26-6-101 et seq., Rem

ington Investments, Inc. filed a petit ion to domesticate th

e Connecticut

judgment agai

nst both Ronald S. Oben

auf and Ardeth H. Obenauf.

This petition, in proper statutory form , was met b

y a moti on to stay
e n forcement

and to vacate the Co

nnecticut judgm

ent filed on behalf of

the defendant Ardeth Oben auf.
Mrs. Obenauf claims that the Connecticut judgment is void because: 1. The Connecticut

court did not have personal jurisdiction over her; 2. The jurisdiction

of the Connecticut court over her was limited to the value of real pr

operty located in the State of Conne cticut; 3. That the only remedy available to the bank

against her was to v

oid the alleged fraudul

ent transfer of pr

operty, and 4. That the judgment against her was void for lack of notice.

Ronald Obenauf filed a similar

motion to stay

enforcement

and vacate the judgment clai

ming only that

the original promissory note had been marked by Connecticut Savings Bank as paid in full, thus extinguishing his lia bili ty to the bank.

Thesemotions by the defendants were fil ed pursuant to Tennessee Code Annotated section 26-6-104(c) and Rules 61 and 62 of the Tennessee Rules of Civil Procedure.On August 21, 1998, the trial court entered its summary judgment against both defendan

t s bas ed on a Memorandum of Opinion filed August 5, 1998.
Only defendant Ardeth Obenauf has appealed from the tri al c ourt judgment.-5-

III. Full Faith and Credit

The single issue presented on appeal by Ardeth Obe nauf is: "Did the trial court err when it

held that a Connectic

ut j udgment for

money damages against Ardeth Obenauf was vali

d and enforceable

in Tennessee even t

hough the judgment awards damages that were not avai lable under the only

claim pleaded against he

r?"
Compliance wi th the procedures set forth in Tennes see Code Annotate d section 26-6-101 et seq. is no

t disputed. Generally,

Tennessee is

required by Ar

t. IV § 1 of the Constitution of the United States t

o give full faith and c

redit to this Connecticut

judgment. Abernathy v. Chambers , 482 S.W.2d 129 (Tenn.1972).

It is further settl

ed: Foreign judgments are

ordi narily entitled

to full faith and credit in

Tennessee's courts. However, Tenn.Code Ann. § 26-6-104(c) states th at the y are su bject to th e same de fens es and may b e vaca ted or reope ned o n the s ame grounds and procedures used to vacate or reopen Tennessee judgments. Thus, the grounds and procedures for vacating or reopening foreign judgm ent s are those containe d in Tenn.R.Civ.P . 60.02. Tenn.R.Civ.P. 60.02(3) states that a final judgment may be set aside

if it is void. Therefore, not sur prisingly, the two most common circumstances

when courts will refuse

to give full faith and credit to a foreign judgment are when the court entering the foreign judgment had no personal or subject matter jurisdiction, Topham v. L.L.B. Corp. , 493 S.W.2d 461, 462 (Tenn.1973); Benham v. Fisher , 650 S.W.2d 759, 760 (Tenn.Ct.App.1983), and when enforcing the judgment would be contrary to

Tennes see's p ublic p olicy. In re Riggs , 612 S.W.2d 461,

465 (Tenn.Ct.App.1980 ), cert. denied , 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981). Biogen Distribs., Inc. v. Tanner , 842 S.W.2d 253, 256 (Tenn.1992).

Tennessee and Connecticut follow the same rule t hat such a foreign judgment is presumed val

id and the burden rests heavily

upon the party ass ailing t he judgment. Dement v. Kitts , 777 S.W.2d 33, 36 (Tenn.App.198 9 ); Bioge n-6-

Distribs., Inc. v. Tanner , 842 S.W.2d 253 , 256 (Tenn.App. 19 92 ); Packer Plastics, Inc. v

. Laundon , 570 A.2d 687 (Conn.1990).

Counsel representing both Ron ald and Ardeth Obe

nauf made

ageneral appearance for them in the Connecticut trial c

ourt. This general appe

arance by counsel is not disputed by the Appellant. Tennessee and Connecticut foll ow the
same rule thatageneral appearance represents a waiver by the party to personal jurisdiction,venue and other proc edural defects unless objection i s made in a timely manner. Dixie Savings S tores, Inc. v. Turner , 767 S.W.2d 408 , 410 (Tenn.App.1988); Johns o n v. Zoning Board of A ppeals of Town of Branfo rd , 347 A.2d 53 (Conn.1974) ; In re Adrien C. , 519 At.2d 1241 (Conn.App.Ct.1987).
Thus, the record in Tenn

essee clearly

shows that the Superior Courtof the Judicial District of New Haven, Connecticut had personal jurisdiction over both Ronald and Ardeth Oben auf. Both had ample op portunity to defend the suit in Connecticut. Both h

ad ample opportu

nity to appeal the

adverse Connecticut judgment. Both declined to do so a nd the time for appeal e xpired under Connecticut

law. The main complaint by Ardeth Obenauf on this appeal is that the judgment in Con

necticut is void as bei ng beyond the scope

of th e Connecticut

pleadings. This objection was never raised in the Connecticut court and even if properly

asserted in Connect

icut is of dubious validi ty. The Connecticut

complaint seeks

"damages" aga

inst both parties withou t limiting such relief to

the first count of the

complaint. T

he Connecticut

complaint has a prayer for general relief a

pplicable to both counts

of the complain

t, not just the first count. The scope of relief allowable unde r such prayers is a matter that addresses itself to the Con necticut court and th e failure of Ard

eth Obenauf to litigate this issue in Connectic

ut, followinga general appear ance in the case,

is clearly a wai ver of the issue. She is in much the same position as were th e defendants in Coastcom, Inc. v. Cruzen , 981 S. W.2d 179 (Tenn.App.1998), which is controlling in

this appeal. In Coastcom, Inc. , judgments were entered in Florida and domesticated in the Chan cery Court of Williamson County. In sustaining the res judicata effec t of the Florida ju

dgments, the Co

urt of Appeals through Judge Farm

er held: Foreign judgments are

entitled to full fai

th and c redi t.-7- U.S

. Const. art. IV, § 1. Once a foreign judgment has bee n enrolled, it h as th e same e ffect and is subje ct to t he same procedures, defenses, and proc eedings for reopeni

ng, vacating, or staying as a j udgment of a cour t of record in Tennessee and may be enforced or satisfied in a like manner. T.C.A. § 26 -6-10 4(c). Theref ore, the grounds and procedures for

vacating or reopeni

ng foreign judgm

ents are those contained in Rule 60. 02 T.R.C.P. Biogen Distribs., Inc. v. Tanner , 842 S.W.2d 2 53 , 256 (Tenn.App.1992). Parties seeking to undermine the

validity of a foreign judgm

ent must meet a "stern and hea vy" b urden to demonstr ate that the foreign judgment shoul

d no t be enforced in Tennessee. Dement v. K itts , 777 S.W.2d 33, 36 (Tenn.App.198 9). The factual issues underlyin

g the foreign judgm

ent may not b

e the basis of an inquiry

to deny the foreig

n judgment full

faith and credit. Benham v. Fisher , 650 S .W.2d 759 (Ten n.App.1983). We are of the o pinion that each of th

e arguments

submitted on app eal either was or could have pro perlybeen presented as a defense to the acti

ons in the Florida court. Coastcom, Inc. v. Cruzen , 981 S.W.2d 179, 181 (Tenn.App.1998).

Post judgment

facts submitted to this court after oral argument es tablis h that amotion addresse

d to the Connecticut tr

ial court in the

underlying action has been denied by that cou

rt on thebasis that Crepeau v. Gronager , 675 A.2d 1361 (Conn.App.1996)

established a change

in Con necti cut law after the 1990 judgmen t in the underlying Co nnecticut case ra

ther than reitera

ting previously existing common law in Connecticut. Even if this basis for deny

ing relief by the Connecticut

court is in error it

is entitled to full faith an d credit in Tennessee. Four Seasons Gardening &

Lands caping v. Crouch , 688 S.W.2d 439 , 445 (Tenn.App.1984).
Summary judgment in

this case was appropriate. Biogen Distribs., Inc.

v. Tanner , 842 S. W.2 d 253 (Tenn.App.1 992); Coastcom, Inc. v. Cruzen , 981 S.W.2d 179 (Tenn.App.1998).

The judgment of the trial court is affirmed and the case is rem

anded to the trial court for

execution on the judg

ment.
Costs in this cause are assessed against Ardeth Obenauf.-8-

__________________________________ ______ WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________ BEN H. CANTRELL, P .J., M.S.

__________________________________ PATRICIA J. COTTRELL, JUDGE