IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 16, 2012

VERONICA MONDE BARONE v. FRANK A. BARONE

Direct Appeal from the Circuit Court for Cumberland County

No. CV004002 John Maddux, Judge

No. E2011-01014-COA-R3-CV-FILED-APRIL 3, 2012

After obtaining a sizable judgment against her former husband in a Canadian court, the

plaintiff filed this lawsuit in Tennessee in 1999 seeking to have property allegedly owned by

the former husband sold in partial satisfaction of the judgment. After the former husband

failed to appear or defend the Tennessee lawsuit, the circuit court also entered a default

judgment against the former husband. However, other related issues involving other parties

were tried and eventually appealed over the next several years. In 2011, the trial court finally

ordered the sale of the former husband’s property in partial satisfaction of the judgment.

Husband appealed from the entry of that order, and he argues on appeal that the wife’s

attempt to execute on his property is time-barred under various statutes and Rules of Civil

Procedure. Finding no merit in his arguments on appeal, we affirm the trial court’s decision.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E.HIGHERS,P.J.,W.S., delivered the opinion of the Court, in which DAVID R. FARMER,

J., and HOLLY M. KIRBY, J., joined.

Michael R. Giaimo, Cookeville, Tennessee, for the appellant, Frank Barone

C. Douglas Fields, Crossville, Tennessee, for the appellee, Veronica Monde Barone
OPINION

I. FACTS & PROCEDURAL HISTORY

Veronica Monde Barone (“Wife”) and Anthony Barone (“Husband”) were married

for several years before they separated around 1993 and later divorced. On January 29, 1998,

Wife obtained a default judgment against Husband in the Ontario Court, General Division,

in Canada. The Canadian suit involved securities fraud, and the amount of the default

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judgment entered against Husband was $1,800,000.

On July 28, 1999, Wife filed a “Petition for Registration of Foreign Judgment and

Complaint” in the circuit court of Cumberland County, Tennessee. She also filed a lien lis

pendens that was recorded in the Register’s Office for Cumberland County on that same

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date. On May 3, 2000, Wife filed an amended complaint entitled “Amended Complaint –

Petition to Bring Suit upon Foreign Judgment and Complaint for Divestment of Title to Real

Property.” In that amended complaint, Wife stated the date and amount of her foreign

judgment, and the court where it was rendered, and she asked the circuit court to “recognize”

the judgment and “allow [her] to bring suit upon said Judgment.” Wife attached a copy of

the Canadian judgment to her complaint. She alleged in the complaint that no portion of the

judgment had been satisfied. She further alleged that Husband had fraudulently conveyed

a nearly 300-acre farm in Tennessee to his son, Frank Barone (“Son”), and recorded the

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deed to Son less than two months after she obtained the Canadian judgment. Wife alleged

that this transaction was a fraudulent attempt to avoid satisfaction of her Canadian judgment.

She named Husband and Son as defendants. In her request for relief, Wife asked the circuit

court to recognize the Canadian judgment and grant a judgment in her favor for $1.8 million;

to hold that the deed to Son was a fraudulent transfer and divest title from Son; and to sell

the property in satisfaction of her judgment.

Husband did not file an answer or otherwise appear and defend the circuit court

According to Husband, the default judgment was entered against him due to his “failure to comply 1

with a court order requiring him to produce a further and better Affidavit of Documents.”

An abstract of lien lis pendens is a notice filed in the register’s office in the county of suit to warn

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all persons that the title to the property is at issue in the litigation. The lien lis pendens recording procedure

is set forth at Tennessee Code Annotated section 20-3-101.

 Son is not the biological son of Wife.

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lawsuit, so the court entered a default judgment against Husband on August 20, 2001, which

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reads, in pertinent part, as follows:

[Wife] is granted a Judgment by Default against [Husband] and the Canadian

judgment No. 94-CQ-51687 filed with this Court is hereby domesticated and

shall be given due recognition as if a judgment of this Court.

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Son, however, did file an answer and argued that Husband’s conveyance of the property to

him was not fraudulent. This issue was tried in October 2002. The trial court ultimately

entered a final order in February 2005, finding that the conveyance was fraudulent and that

the deed to Son was void and inoperative. After the trial court entered its judgment, Son

filed a notice of appeal, and Wife filed a motion for writ of attachment, which the trial court

denied so that the appeal could proceed.

On appeal, the Eastern Section of this Court affirmed the trial court’s finding that

Husband’s attempt to transfer title to Son after Wife obtained the default judgment “was a

fraudulent attempt to divest title of the farm from Husband to Son so that it was not subject

to execution to partially satisfy Wife's judgment against Husband.” See Veronica Monde

Barone v. Anthony F. Barone, et al, No. E2006-01394-COA-R3-CV, 2008 WL 3982968,

at *8 (Tenn. Ct. App. Aug. 28, 2008). The Court instructed the trial court, on remand, to give

due consideration to the motion for writ of attachment that had previously been filed by Wife.

Id. at *9.

After the case was remanded, Husband’s daughter filed a petition to intervene for the

purpose of objecting to the proposed execution sale. Husband’s daughter noted that she had

filed a declaratory judgment action in the chancery court of Cumberland County, asserting

that she could not be removed from the farm at issue due to rights she had acquired through

adverse possession, and that an interlocutory appeal of that case was pending before the

Court of Appeals. Husband’s daughter also argued that the Canadian judgment was

unenforceable for various reasons.

Wife filed a response to the petition to intervene, and she also filed a motion asking

the court to order a judicial sale of the property, or in the alternative, to allow her to proceed

 We note that Husband was at one time a licensed attorney. Even though he chose not to defend 4

this lawsuit, Husband did file a separate lawsuit in the United States District Court for the Middle District

of Tennessee seeking to enjoin this action and seeking to have the Canadian default judgment set aside. The

federal court lawsuit was dismissed. 

This order was not made final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure.

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with an execution sale. Following a hearing on these motions, an “Agreed Order” was

entered which stated that the trial court “found that it would be unwise to go forward with

these matters at this time,” due to the pending appeal in Husband’s daughter’s chancery court

case, in addition to questions regarding Husband’s “current [mental] competency.” As such,

the order provided that the pending motions would be stayed pending a ruling by the Court

of Appeals in the chancery matter.

The Eastern Section issued its opinion in the case involving Husband’s daughter in

October 2010. See Julie-Cristie (Barone) Neal v. Veronica Monde Barone, No. E2009-

02598-COA-R9-CV, 2010 WL 4024973 (Tenn. Ct. App. Oct. 13, 2010). In that opinion, the

Court explained that Husband held the legal title to the farm based on the circuit court’s

previous judgment, but that Husband’s daughter was claiming a possessory right to the farm

as a “squatter” and trespasser. Id. at *2. The Court ultimately concluded that Husband’s

daughter had no such possessory right because the lien lis pendens filed by Wife when she

instituted the circuit court case in 1999 halted the running of the adverse possession statute.

Id. at *7.

After the opinion was issued in Neal v. Barone, Wife filed, in the circuit court matter,

a “Renewal of Motion to Sell,” again asking the court to sell the property at issue. Son, who

was already a co-defendant, was later substituted as the proper party for Husband in this

matter, due to his being appointed as conservator for Husband. Son then filed, on behalf of

Husband, a “Motion to Dismiss Post-Judgment Proceedings and Objection to Execution

Sale,” relying upon several statutes and Rules in support of his position that Wife should not

be allowed to proceed with the execution sale. Husband’s motion was based upon

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Tennessee Code Annotated section 25-5-105, which addresses the expiration of judgment

liens; Tennessee Code Annotated section 28-3-110, which provides a ten-year statute of

limitations for “actions on judgments;” and Rule 69.07(2) and Rule 69.04 of the Tennessee

Rules of Civil Procedure, which, respectively, address judgment liens and extending

judgments.

Following a hearing, the trial court entered an order on April 4, 2011, stating that the

motion to intervene, the motion to dismiss post-judgment proceedings, and the objections to

the execution sale were not well-taken and were therefore denied. The trial court ordered the

property at issue to be sold by the clerk of the court in partial satisfaction of the judgment.

Husband timely filed a notice of appeal.

Although Son, as conservator for Husband, was substituted as the proper party and acted on behalf

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of Husband throughout the remainder of this litigation, we will continue to refer to Husband as the party

taking such action, for sake of clarity.

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II. ISSUE PRESENTED

On appeal, Husband cites the same statutes and Rules that he relied upon in the trial

court to argue that execution on Wife’s Canadian judgment is now time barred. We disagree

and affirm the trial court’s decision.

III. DISCUSSION

The first statute relied upon by Husband on appeal is Tennessee Code Annotated

section 25-5-105, which provides, in relevant part:

(a) Once a judgment lien is created by registration as provided in §

25-5-101(b), it will last for the time remaining in a ten-year period from the

date of final judgment entry in the court clerk's office.

(b) The provisions of this section apply to all judgment liens registered on or

after May 17, 2000 . . . .

Husband’s brief does not mention the date upon which a judgment lien was created in this

case. Instead, he appears to simply assume that one was created. He notes that the prior

version of this statute provided that judgment liens would last for three years instead of ten

years, and he argues that “if the lien was registered prior to 2000,” then the three-year period

should apply.

In response, Wife asserts that this statute is inapplicable because she is not trying to

enforce a judgment lien, and she did not attempt to register her Canadian judgment pursuant

to this statute. Wife points out that section 25-5-105, by its terms, applies to judgment liens

“created by registration as provided in § 25-5-101(b),” and the referenced section, 25-5-

101(b), provides for the registration of judgments obtained in courts “of this state.” We

agree with Wife’s contention that section 25-5-105 is inapplicable under the facts of this

case. Wife filed this lawsuit to enforce her foreign judgment, and she is not relying upon a

judgment lien. See 2 Lawrence A. Pivnick, Tennessee Circuit Court Practice § 29:2 (2011

ed.) (“Tennessee statutes and the Tennessee Rules of Civil Procedure provide for both

judgment and execution liens, which are distinct from the judgment itself.”) (emphasis

added). For these same reasons, Husband’s reliance upon Rule 69.07(2), which also

addresses judgment liens, is misplaced.

From our review of the briefs filed on appeal, there appears to be some confusion over

the precise nature of this lawsuit. A judgment creditor seeking to enforce a judgment that

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was not entered by a Tennessee court may proceed in a number of ways. The traditional

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method is to file a new common law action in Tennessee to enforce the foreign judgment,

seeking a new Tennessee judgment based on the foreign judgment, which is treated as a debt.

See Pivnick, § 27:18; 16 William H. Brown, Nancy Fraas MacLean & Lawrence R. Ahern,

III, Tenn. Prac., Debtor-Creditor Law & Practice § 26:1 (2d ed.). As this method involves

a new suit, a copy of the complaint and summons is served on the defendant, who has the

right to answer and attack the underlying judgment by raising defenses. Pivnick, § 27:18.

However, “[t]he scope of the action [is] limited to whether the foreign judgment was properly

entered, and [does] not allow a reconsideration of the merits of the action embodied in the

foreign judgment.” Id. The common law action was the usual procedure for enforcing

foreign judgments before uniform statutes were enacted. Id.

The Uniform Enforcement of Foreign Judgments Act, Tenn. Code Ann. § 26-6-101,

et seq., provides a simplified alternative procedure to the common law action. Id. at §

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27:18. It basically allows for enforcement of a foreign judgment in Tennessee by filing or

registering the authenticated judgment with the clerk of any circuit or chancery court. Bailey

v. Sneed, 49 S.W.3d 327, 328 (Tenn. Ct. App. 2001) (citing Tenn. Code Ann. § 26-6-104(b)).

“If the defendant takes no action within 30 days after he has been served, execution may

immediately issue without the necessity of entry of a new judgment.” Pivnick, § 27:18

(citing Tenn. Code Ann. § 26-6-104, -105(c)). Under the Uniform Enforcement of Foreign

Judgments Act, the “foreign judgment” is treated in the same manner as a judgment of a

court of record of this state. Tenn. Code Ann. § 26-6-104(b); Brown, § 26:1.

Section 103 of the Uniform Enforcement of Foreign Judgments Act defines “foreign

judgment” as “any judgment, decree, or order of a court of the United States or of any other

court which is entitled to full faith and credit in this state.” Tenn. Code Ann. § 26-6-103.

Because “[t]he full faith and credit clause of the Federal Constitution, Article 4, section 1,

only applies to states and territories of the United States of America and not to foreign

countries . . . there is a split of authority nationally regarding whether the Uniform

Some options not applicable here include a statutory action on the foreign judgment to subject a 7

nonresident judgment debtor’s property located in Tennessee to satisfaction of the judgment pursuant to

Tenn. Code Ann. § 16-11-107, and proceeding under the Uniform Interstate Family Support Act and the

Uniform Child Custody Jurisdiction and Enforcement Act in certain family matters. Pivnick, § 27:18.

 Section 107 of the Uniform Enforcement of Foreign Judgments Act provides that "[t]he right of

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a judgment creditor to bring an action to enforce the creditor's judgment instead of proceeding under this

chapter remains unimpaired." Tenn. Code Ann. § 26-6-107. Thus, it is clear that judgment creditors have

the right to bring a separate action to enforce a foreign judgment rather than proceeding under the Uniform

Enforcement of Foreign Judgments Act. Studsvik Logistics, LLC v. Royal Furniture Co., No. W2009-

00925-COA-R3-CV, 2010 WL 1565522, at *2 (Tenn. Ct. App. Apr. 20, 2010). 

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Enforcement of Foreign Judgments Act applies to a decree from a foreign country because

full faith and credit is not involved[.]” Maberry v. Maberry, No. M1999-01322-COA9

R3-CV, 1999 WL 1072568, at *2 (Tenn. Ct. App. Nov. 30, 1999) (citation omitted);see, e.g.,

30 Am. Jur. 2d Executions § 779 (“a judgment obtained in a court of a foreign nation is not

entitled to enforcement under the UEFJA”).

In this case, Wife’s original complaint wastitled, “Petition for Registration of Foreign

Judgment and Complaint.” In that complaint, Wife alleged that she had previously obtained

a judgment in Florida based upon the Canadian judgment, and she asked the circuit court to

register the Florida judgment and treat it in the same manner as a Tennessee judgment.

However, Wife later filed an amended complaint seeking to proceed in a different manner,

by directly enforcing the Canadian judgment. The amended complaint was titled, in relevant

part, “Petition to Bring Suit upon Foreign Judgment.” In the amended complaint, Wife asked

the circuit court to “recognize” the Canadian judgment and “allow [her] to bring suit upon

said Judgment.” In her request for relief, Wife asked the circuit court to grant a judgment

in her favor for $1.8 million upon recognizing the Canadian judgment. As noted above,

Husband did not file an answer or otherwise appear and defend this lawsuit, so the court

entered a default judgment against Husband on August 20, 2001, which reads, in pertinent

part, as follows:

[Wife] is granted a Judgment by Default against [Husband] and the Canadian

judgment No. 94-CQ-51687 filed with this Court is hereby domesticated and

shall be given due recognition as if a judgment of this Court.

Although this language would be more appropriate in a proceeding under the Uniform

Enforcement of Foreign Judgments Act, looking at this suit as a whole, we conclude that

Wife was attempting to enforce her judgment by bringing a new common law action on her

foreign judgment rather than proceeding under the Uniform Enforcement of Foreign

Judgments Act.

This conclusion brings us to Husband’s next argument on appeal. Husband contends

that Tennessee Code Annotated section 28-3-110 bars Wife from collecting her judgment.

The statute provides, in pertinent part:

The following actions shall be commenced within ten (10) years after the

cause of action accrued:

The Maberry Court did not resolve the issue of whether a judgment from a foreign country can 9

be enforced under Tennessee’s version of the Uniform Enforcement of Foreign Judgments Act because the

judgment creditor in that case failed to register herJapanese decree in compliance with the Act in any event.

1999 WL 1072568, at *2.

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. . .

(2) Actions on judgments and decrees of courts of record of this or any other

state or government[.]

Tenn. Code Ann. § 28-3-110. The Canadian judgment was entered against Husband on

January 29, 1998. Wife filed her original complaint in Tennessee on July 28, 1999, and her

amended complaint on May 3, 2000. Husband does not dispute that “suit was filed to

enforce the judgment” within ten years, but he argues that “the filing of a lawsuit does not

toll the statute of limitations set forth in T.C.A. § 28-3-110.” Simply put, Husband contends

that “it does not matter that she filed a lawsuit to enforce the judgment” within ten years. We

find no merit in Husband’s assertion. The statute merely requires that “actions on

judgments” be “commenced” within ten years. Tenn. Code Ann. § 28-3-110. It does not

provide that the action on the judgment must have come to a conclusion within that ten year

period. See, e.g., First Tennessee Bank Nat. Ass'n v. White, No. 03A01-9711-CV-00514,

1998 WL 518303, at *1 (Tenn. Ct. App. Aug. 20, 1998) (holding that an action on a

judgment was timely under section 28-3-110 where it was filed in chancery court just before

ten years had passed, and later transferred to circuit court for resolution after ten years had

expired).

As for Husband’s “no tolling” argument, he relies upon Rabbitt v. Mills, No.

M2004-01103-COA-R3-CV, 2005 WL 2012774 (Tenn. Ct. App. Aug. 22, 2005), which is

clearly distinguishable from the case at bar. In Rabbitt, judgment creditors waited more than

ten years before attempting to enforce their judgment. Id. at *1. During the ten-year period,

the judgment debtor had instituted bankruptcy proceedings that resulted in the injunction of

any activity in the case, so the trial court found that the ten-year period should be extended

by the periods of injunction. Id. at *3. The Court of Appeals rejected this argument and

noted that section 28-3-110 is devoid of any language providing for tolling. Id. at *4. In the

case before us, however, Wife obviously “commenced” her action within ten years of the

entry of the Canadian judgment. Therefore, her action was timely, and there is no need for

“tolling” of the statute of limitations.

Finally, Husband relies upon Tennessee Rule of Civil Procedure 69.04 in arguing that

there can be no execution on his property in this case. The Rule provides, in relevant part:

Within ten years from entry of a judgment, the judgment creditor whose

judgment remains unsatisfied may move the court for an order requiring the

judgment debtor to show cause why the judgment should not be extended for

an additional ten years. . . . If sufficient cause is not shown within thirty days

of mailing, another order shall be entered extending the judgment for an

additional ten years. The same procedure can be repeated within any additional

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ten-year period until the judgment is satisfied.

 Tenn. R. Civ. P. 69.04. Husband contends that because Wife never attempted to extend or

revive the original default judgment, pursuant to this Rule or by a writ of scire facias, the

Canadian judgment has expired and is now unenforceable. Wife, on the other hand, argues

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that it was not necessary for her to pursue a revival or extension of her judgment because she

brought a timely suit on the judgment and obtained a new judgment against Husband in

Tennessee. Wife contends that she is now pursuing enforcement of the Tennessee judgment,

which is less than ten years old.

We agree with Wife’s contention that it was not necessary for her to seek an extension

or revival of her judgment. Wife filed a timely action on the judgment in Tennessee within

ten years. Husband failed to appear or defend the suit filed by Wife, and the circuit court

entered the default judgment against Husband, based on the Canadian judgment, on August

20, 2001. Because the order granting the default judgment was not made final pursuant to

Rule 54.02 of the Tennessee Rules of Civil Procedure, the Tennessee judgment against

Husband did not become final until the claims against Son were resolved in February 2005.

Husband did not appeal the entry of judgment against him, and that order became final in due

time. Because the final judgment in the Tennessee case was entered less than ten years ago,

Rule 69.04 does not bar Wife from enforcing her judgment against Husband.

We note that Husband presents one final argument in his brief on appeal as to why the

Canadian judgment should not be enforced against him. He basically raises a question

regarding whether the Canadian default judgment was ever a final judgment. Son, who is

now acting on behalf of Husband, suggests that it is not clear from reviewing the record in

the Canadian court whether one of the post-trial motionsfiled by Husband was ever resolved.

However, we find that Husband’s attempt to raise this argument comes too late. In the

original common law action filed by Wife in Tennessee to enforce the Canadian judgment,

Husband would have had the opportunity to attack the underlying judgment by raising

defenses, and the scope of the action would have been limited to whether the foreign

judgment was properly entered. See Pivnick, § 27:18. Husband chose not to appear or

defend against that lawsuit, and a default judgment was entered against him. Husband did

not participate in the original appeal of this matter, and throughout the post-trial, and postappeal, proceedings below, Husband never mentioned this argument. We note that

Husband’s daughter raised this same question about the finality of the Canadian judgment

“Scire facias is defined as ‘a writ requiring the person against whom it is issued to appear and to 10

show cause why some matter of record should not be annulled or vacated, or why a dormant judgment against

that person should not be revived.’” State v. Davis, 173 S.W.3d 411, 413 n.2 (Tenn. 2005) (quoting Black's

Law Dictionary 624 (2nd pocket ed. 2001)).

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in her petition to intervene, which was denied. However, when Son, on behalf of Husband,

later filed a “Motion to Dismiss Post-Judgment Proceedings and Objection to Execution

Sale,” he never asserted that the Canadian judgment was not final. He specifically adopted

other arguments that his daughter had advanced in her petition to intervene, based on the

statutes and Rules previously discussed in this opinion regarding timeliness, but he did not

even attempt to argue that the Canadian judgment was not final. In short, Wife’s suit to

enforce the Canadian judgment has been pending since 1999, and the first time Husband

suggested that the Canadian judgment might not be final was when he filed his brief in the

second appeal of this matter. We are not required to grant relief to a party responsible for

an error or who failed to take whatever action was reasonably available to prevent or nullify

the harmful effect of an error. Tenn. R. App. P. 36(a). As such, we decline to reverse the

trial court’s order.

IV. CONCLUSION

For the aforementioned reasons, the decision of the circuit court is hereby affirmed.

Costs of this appeal are taxed to the appellant, Frank Barone, as conservator for Anthony

Barone, and his surety, for which execution may issue if necessary.

_________________________________

ALAN E. HIGHERS, P.J., W.S.

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