FILED

April 7, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

REMINGTON INVESTMENTS, )

INC., )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9809-CH-00512

v. )

) Rutherford Chancery

RONALD S. OBENAUF and ) No. 97CV-107

ARDETH OBENAUF, )

)

Defendants/Appellants. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY 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 Howard 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
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OPINION

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

domesticating a Connecticut judgment under Tennessee Code Annotated section

26-6-101 et seq. against both defendants.

I. The Connecticut Action

In September 1990, Connecticut Savings Bank brought suit in the

Superior Court of the Judicial District of New Haven, Connecticut against

Ronald S. Obenauf and Ardeth H. Obenauf on a promissory note in the amount

of $34,000, executed by Ronald S. Obenauf and dated March 27, 1990. Plaintiff

alleged that it was the current holder of the promissory note and that Ronald S.

Obenauf had failed to make monthly payments in accordance therewith. The

bank demanded judgment of the amount of the promissory note together with

interest and costs. The bank further sought fees and expenses, including

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 January 25, 1990, Ronald S. Obenauf

had transferred property at 52 Maple Avenue West, Haddam, Connecticut, to the

defendant Ardeth H. Obenauf for one dollar. The bank alleged that the

conveyance was fraudulent and was without substantial consideration and

rendered Ronald S. Obenauf unable to pay his existing debts. This count further

asserted that defendant Ardeth H. Obenauf had participated in this fraudulent

transfer and that plaintiff had been damaged by the fraudulent conveyance.

The complaint then prayed for relief as follows:

 "1. Damages

2. That the conveyance from Ronald S. Obenauf to Ardeth H.

Obenauf be set aside and declared null and void as to the plaintiff.

3. Attorney's fees, costs and expenses.

4. Such other relief as the Court deems appropriate."
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On January 10, 1991, Connecticut attorney, Brian E. Kaligian,

addressed a letter to Ronald Cohen, Esquire, attorney for Connecticut Savings

Bank, with copies thereof to Ronald and Ardeth Obenauf. This letter read:

I have finally been able to reach my clients, the Obenauf's

with regard to your suit on the $40,000.00 Promissory Note.

In response to my inquiries regarding this matter, my clients

have provided me with a copy of the $34,000.00 Commercial

Promissory Note marked "PAID" by the Bank. I enclose this

copy for your review. I expect that you will be filing a

Withdrawal of this action and I will look forward to

receiving a copy of the Withdrawal at your convenience.

If you have any questions or comments regarding this matter,

please do not hesitate to contact me.

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

to make him attorney of record for the defendants Ronald S. Obenauf and Ardeth

H. Obenauf.

On August 6, 1991, Ann Hamilton Maher filed a "demand for

disclosure of defense" pursuant to Connecticut Practice Book paragraph 236

against both defendants. Copies of these pleadings were served on Brian E.

Kaligian, Esquire, attorney for the defendants.

Apparently receiving no answer, counsel for plaintiff filed a motion for

default judgment pursuant to Connecticut Practice Book section 236 for the

failure of the defendants to disclose a defense within the time allowed by law.

Motion for default judgment was granted on October 18, 1991.

Judgment was entered against both defendants on December 18, 1991

in the amount of $41,175.75, together with costs in the amount of $629.50. No

post judgment motions were filed and no appeal was perfected in the appellate

courts of Connecticut.

Subsequently the Connecticut Savings Bank went into FDIC

receivership.
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II. The Tennessee Domestication

In September 1995, FDIC assigned without recourse to Remington

Investments, Inc. the Connecticut judgment against the defendants Obenauf.

On January 28, 1997, pursuant to Tennessee Code Annotated section

26-6-101 et seq., Remington Investments, Inc. filed a petition to domesticate the

Connecticut judgment against both Ronald S. Obenauf and Ardeth H. Obenauf.

This petition, in proper statutory form, was met by a motion to stay

enforcement and to vacate the Connecticut judgment filed on behalf of the

defendant Ardeth Obenauf. 

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 property located in the State of Connecticut;

3. That the only remedy available to the bank against her was to void

the alleged fraudulent transfer of property, 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 claiming only that the original promissory note had been marked

by Connecticut Savings Bank as paid in full, thus extinguishing his liability to

the bank.

These motions by the defendants were filed 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 defendants based on a Memorandum of Opinion filed

August 5, 1998.

Only defendant Ardeth Obenauf has appealed from the trial court

judgment.
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III. Full Faith and Credit

The single issue presented on appeal by Ardeth Obenauf is: "Did the

trial court err when it held that a Connecticut judgment for money damages

against Ardeth Obenauf was valid and enforceable in Tennessee even though the

judgment awards damages that were not available under the only claim pleaded

against her?"

Compliancewith the procedures set forth in TennesseeCodeAnnotated

section 26-6-101 et seq. is not disputed. Generally, Tennessee is required by Art.

IV § 1 of the Constitution of the United States to give full faith and credit to this

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

It is further settled:

Foreign judgments are ordinarily entitled to full faith

and credit in Tennessee's courts. However, Tenn.Code Ann.

§ 26-6-104(c) states that they are subject to the same

defenses and may be vacated or reopened on the same

grounds and procedures used to vacate or reopen Tennessee

judgments. Thus, the grounds and procedures for vacating or

reopening foreign judgments are those contained 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 surprisingly, 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 Tennessee's public policy. 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 that such a foreign

judgment is presumed valid and the burden rests heavily upon the party assailing

the judgment. Dement v. Kitts, 777 S.W.2d 33, 36 (Tenn.App.1989); Biogen
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Distribs., Inc. v. Tanner, 842 S.W.2d 253, 256 (Tenn.App.1992); Packer

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

Counsel representing both Ronald and Ardeth Obenauf made a general

appearance for them in the Connecticut trial court. This general appearance by

counsel is not disputed by the Appellant. Tennessee and Connecticut follow the

same rule that a general appearance represents a waiver by the party to personal

jurisdiction, venue and other procedural defects unless objection is made in a

timely manner. Dixie Savings Stores, Inc. v. Turner, 767 S.W.2d 408, 410

(Tenn.App.1988); Johnson v. Zoning Board of Appeals of Town of Branford, 347

A.2d 53 (Conn.1974); In re Adrien C., 519 At.2d 1241 (Conn.App.Ct.1987).

Thus, the record in Tennessee clearly shows that the Superior Court of

the Judicial District of New Haven, Connecticut had personal jurisdiction over

both Ronald and Ardeth Obenauf. Both had ample opportunity to defend the suit

in Connecticut. Both had ample opportunity to appeal the adverse Connecticut

judgment. Both declined to do so and the time for appeal expired under

Connecticut law. The main complaint by Ardeth Obenauf on this appeal is that

the judgment in Connecticut is void as being beyond the scope of the

Connecticut pleadings. This objection was never raised in the Connecticut court

and even if properly asserted in Connecticut is of dubious validity. The

Connecticut complaint seeks "damages" against both parties without limiting

such relief to the first count of the complaint. The Connecticut complaint has a

prayer for general relief applicable to both counts of the complaint, not just the

first count. The scope of relief allowable under such prayers is a matter that

addresses itself to the Connecticut court and the failure of Ardeth Obenauf to

litigate this issue in Connecticut, following a general appearance in the case, is

clearly a waiver of the issue. She is in much the same position as were the

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 Chancery Court of Williamson County. In

sustaining the res judicata effect of the Florida judgments, the Court of Appeals

through Judge Farmer held:

Foreign judgments are entitled to full faith and credit.
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U.S. Const. art. IV, § 1. Once a foreign judgment has been

enrolled, it 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 in

Tennessee and may be enforced or satisfied in a like manner.

T.C.A. § 26-6-104(c). Therefore, the grounds and

procedures for vacating or reopening foreign judgments are

those contained in Rule 60.02 T.R.C.P. Biogen Distribs., Inc.

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

seeking to undermine the validity of a foreign judgment must

meet a "stern and heavy" burden to demonstrate that the

foreign judgment should not be enforced in Tennessee.

Dement v. Kitts, 777 S.W.2d 33, 36 (Tenn.App.1989). The

factual issues underlying the foreign judgment may not be

the basis of an inquiry to deny the foreign judgment full faith

and credit. Benham v. Fisher, 650 S.W.2d 759

(Tenn.App.1983). We are of the opinion that each of the

arguments submitted on appeal either was or could have

properly been presented as a defense to the actions in the

Florida court.

Coastcom, Inc. v. Cruzen, 981 S.W.2d 179, 181 (Tenn.App.1998).

Postjudgment facts submitted to this court after oral argument establish

that a motion addressed to the Connecticut trial court in the underlying action has

been denied by that court on the basis that Crepeau v. Gronager, 675 A.2d 1361

(Conn.App.1996) established a change in Connecticut law after the 1990

judgment in the underlying Connecticut case rather than reiterating previously

existing common law in Connecticut. Even if this basis for denying relief by the

Connecticut court is in error it is entitled to full faith and credit in Tennessee.

Four Seasons Gardening & Landscaping 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.2d 253 (Tenn.App.1992); Coastcom, Inc. v. Cruzen, 981

S.W.2d 179 (Tenn.App.1998).

The judgment of the trial court is affirmed and the case is remanded to

the trial court for execution on the judgment.

Costs in this cause are assessed against Ardeth Obenauf.
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________________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

__________________________________

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

__________________________________

PATRICIA J. COTTRELL, JUDGE