# FILED
March 19, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk HEIRS OF THE ESTATE OF WILLIAM ) APPEAL NO. A. MCCALL, SR., ) 01-A-01- 9604-CH- 00188 ) PLAINTIFFS /APPELLAN TS, ) V. ) DAVIDSON CHANCERY ) JOE E. JOHNSON, ) NO. 87-1216-I ) DEFENDANT/APPELLEE. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

PAUL R. WHITE L. R. DeMARC O Suite 400 Washington Square 214 Second A

venue Nor

th Nashville , Tenne ssee 37201 ATTORNEYS FOR PLAINTIFFS/APPELLANTS JAMES E. ZWICKEL 1102 17th Ave nue South Suite 304 Nashville , Tenne ssee 37212 ATTORNEY FOR DEFENDANT/APPELLEE

REVERSED AND REMANDED

SAMUEL L. LEWIS, JUDGE2 

## O PINION

This is an appea

l by pla intiffs/a ppellants, the heirs of the esta te of William

A. McCall, f rom a de cision of the chancery court finding Appellants did not have a foreign judgm ent against

defendant

/appellee , Joe E. Johnson, subj ect to enforce ment underthe Uniform E

nforcem ent of For

eign Judgm

ents Act b ecause A

ppelle e had satisfied his liabilit

y under the judgm

ent.
I. Facts and Procedural History

In 1975, W

illiam A. McC all, a songwri ter, fi led an act ion in Califor

nia against
anumbe r of m usic publishe

rs includingAppellee, Four Star Music Co. (“ Four Star”), and Challenge

Records. The California superior court entered a default j udgmen

t on 17 February 1977. It ordered Appellee, Four Star, and Challen ge to pay Mc Call $416,409.0 7 as joint t

ortfeaso rs and to transf e r all copyrights and musical compos itions author

ed or co-a

uthored by

McCall toMcCall.
Several years later, Four Sta r filed ba nkruptcy in Tennes see. Mc Call and Four Star entered into a settlement agreem ent on 13 Febru ary 1980. The agreem ent provided: Approving and direc ting Ir win A. Deutscher, Receiver of Four Star Music Co., I nc, to p ay t he follow ing amount to Ethe l Bassey McCall, Executr ix of the Estate of William A. McCall, Sr. in f

ull settlem

ent and satisfac tion of all claim s arising ou t of said j udgmen tof theCalifor

nia Court aga inst all par

ties exce pt Joe E. Johnson, indi vidually : (i) the sum

of $200,000

in full and final sati sfaction o f the claim of Will iam A . McCal l, Sr. , decea sed. On 9 Janu ary 19 8 7, Appel lants file d an “ Acknowle dgment of Satisf

action of Judgme nt” in the Cal ifornia su perior court. A ppellants c hecked the

box which s tated: “The judgment creditor has accepted payment or performance other than that specified in the judgment in full satisfaction of the judgm ent.” In the space provided to list those j udgmen

t debtors being fully

or partia lly release d, Appellants listed F our Star and Chal lenge Recor ds. Appellant s also file d an app lication f or renew al of the j udgmen t against Appellee in the Cali fornia supe rior cour t on 9 Januar

y 1987. A David son County3

Deputy Sheriff served A ppellee w ith the notic e of rene wal on 28 May 19 87. The clerk of the Calif

ornia super

ior court f

iled the not

ice on 16 Jul y 1987. Appellant s filed an a

ction in the Tenne ssee chanc ery c ourt to enf orce the Californiajudgm

ent against A

ppellee. On 19 June 1 987, Appe llee file d a mot ion to dismis s arguing A

ppellants lacked standing. On 10 July 1987, Appellee supplementedhis mot

ion to dismis s. In addi tion to his standing argument, he claimed the C alifornia

judgm ent was no t entitled t

o full fai th and cre dit and Appe llants ' attachm ents failed to reflect a judgment against Appellee that was enforceable under California law. The m

otions wer

e never set for a he aring.
On 10 March 1994 , Appell ants filed a mot ion seeking p ermi ssion to fil e multip le executions simult aneously . The chancery court per

mitte d the exec utions to issue. In respons e, Appe llee file d a mot ion to quash e xecution, to stay further executions , and for entry of satisfaction of judgm ent. On 25 May1994, the chancery court entered an order and found the

Acknowl edgment of Sati sfaction o f Judgm ent did not relieve Appellee of liab ilit y. T he court denied Appel lee's m otion to quash executio n, and Appel lee filed a n otice of ap peal.
On appeal, this court reversed the trial court and r emanded the case

. Estate of William A. McCall v. John son , No. 01-A -01-9408-C H-00392, 1995 WL 138898 (Tenn. App. 31 Mar. 1995). The basis for this courts decision was the chancery court had to dispose of

the motion to dism

iss and the supplem

ented m otion to dism

iss prior to allowing execution. This cour t explicitly decl ined to expr ess an opinion on the ultimate outc ome of the motions. Id. at *3.
On 2 September

1994, upon A

ppellee' s motio n, the California superior court entered an order fi nding Appel lee had fu lly sa tisfied the 1977 judgm

ent. Appellan

ts filed a not ice of appea l in the su perior cou rt on 14 Nov ember 1994. During the pendenc y of

the California appeal, Appellants moved the chancery court to dis pose of all

pending m

otions. In

its final o rder, t

he chance ry cou rt held: [T]he Court is of the opini on that the California Judgment upon which Plaintiffs asserted

their claim in this cause has been deem ed satisfied by4

the Trial C ourt inCalifor nia and tha

t, there fore, t

here exis ts no forei gn judgm ent subject t o en forcem

ent under t

he Unifor m En forcem

ent of Foreign Judgments Act, (TCA

§26-6-101 et seq.) and that the refore this action sh ould be d ismissed . . . . Therea fter, A ppellants f

iled a notic e of appea

l and presented the fo llowing iss ues: 1. Whether

the trial court er red i n holdi ng that the C alifornia judgm ent has been deem

ed satisfi ed. 2. Whether

the attachments submitted by the plaintiff/appellant are suffic ientt o reflect a judgment against the defendant/appellee that is en forceable u nder Califo rnia law. 3. Whether

there has been suffi cient proof of servic e on the defendant as required by the California Civil Code. 4. Whether

the plaintiff/appellant has st anding to bri ng this acti on in the state of Tennessee. This courtheard oral argument, but did not issue an opinion. Instead, this court issued an order re quiring App ellants to i nform this court o f the stat

us of the Ca

lifornia appeal an d to furnish

this court w ith a copy

of the opini on when issu ed.

In complian ce wi th this court's order, Appellant filed a notice on 7 February 1997 stating the California court of appeal had issued its opinion and attached a copy of the opinion. It was the opinion of the California court of appeal that the Calif ornia superior c ourt had er

red. T he court st ated: To perm it Johnson to a

void this debt

by all owing him the benefit of a satisfac tion of judgm

ent to which he was not, and w as never i ntended to be, a party, would be to elevate form over substance to achieve a ludicrou s and unjus t result. The trial court erred in granting Johnson's motion for satisf

action of j udgmen

t. Estate of W

illiam A. McCall

v. Four Star Music Co., e t al. , No. B 088555, slip op. at 9 (Cal. App. 31 Dec. 1996).
II. Uniform Enforcement of Foreign Judgment s Act
Itis Appella

nts' con tention that the chancery court erred because under Californialaw Appellee was not released from liability by the Acknowle dgment of Satisfac tion of Judgm

ent. It i s the opinion of this court that the chanc ery c ourt erre d, but not for the rea son stated by Appellants. Inste ad, it is o ur opinion tha t the chancer y cour t erred b ecause it

should not hav e entere d an order when it did

.5

The Uniform Enforce ment of Foreign Judgments Ac t al lows judgm ent creditor s to enforce judgm ents of for

eign jur isdictions in Tennessee. See Tenn. C ode Ann. §§ 26-6-101 to 26-6-107 ( 1980 & Supp. 1996). A “for eign judgm

ent” is “any

judgm ent, decree, or order of a court of the Untied States or of any other court which is entitled to full faith and credit in this state.” Id. § 26-6-103. “Ful l Faith and Credit sha

ll be given in each State to the public Acts, Rec ords, and judicial Proceedings of every otherState.” U.S. C onst art. IV, §1. Once a j udgment creditor f iles a for eign judgm ent in Tennes see, tha

t judgm ent “ has thesame

effect and is subj ect to the

same procedure s, defenses and proce edings fo r reopeni ng, vaca ting, or st aying a s a judgm ent of a c our t of

reco rd o f th is s tat e an d may b e enf orced or s atisfied i n like manner.” T enn. Code Ann. § 26-6-104(c) (1980).
The Uniform

Enforcement

of Forei gn Judgm

ents Act a lso contains a provision to avoid confu sion w hen som e aspect o f a fore ign judgm ent is still

pending in the foreign j urisdiction . Tenne ssee Code Annotated section 26- 6-106(a) provides: If the judgm

ent debtor show s the court

of this sta

te that an appeal fr

om the for ei gn judgm

ent is pendi ng or will be taken, or that a s tay of execution has bee n granted, the court s hall stay enforce ment o f the foreign judgm entuntil the appeal is concluded, the time for appeal expires, or the sta

y of e xecution ex

pires or is vacated. This section is o f

particula r releva nce to the determ

ination of t

his case. T o explain, the appeal of

the Calif ornia dec ision was pending as of 14 Nove mber 1994, and th e Californiaappellate court did not render adecision unt il 31 Decem

ber 1996. Thus, there was an a

ppeal fro m the foreign j udgmen t pending wh en the cha

nce ry court entered its final judgment on 9 Ap ril 1996

. Given this , the ultim ate issue i n this case becomes whether

the trial court should have entered an order s tayingthe execution of the fore ign judgm

ent as oppose d to issuing an order on th e basis of a foreign judgm ent then pe nding on appea l.
The statute req uires the t rial court to enter a st ay wh en the “ju dgment debtor shows the court” that an app eal is pend ing. Tenn. Code Ann. § 26-6-106(a) (1980). The record i ndicates t

he chance

ry cou rt knew of the appeal although it is unclear which party

inform ed the cour

t of the app eal. There are no spe cific re ference s in the1 Appellan ts elected to not file

a transc ript or a s tatement

of the evidence p

ursuant t o Rule 24(d) of the Tennessee Rules of Appellant Procedure

. 6 record as originally filed to the notice of appeal or even to the

appeal in g eneral. 1 Neverth eless, Appellants filed a motion to supplement the record to include the notice of appeal pur suant to Rule s 24(e) a nd (g) of th e Tennes see Rules of Appell ate Proce dure. The chancer y cour t granted t

he order, and the cle

rk supplem

ented the record. Moreover, there is other evidence in the record indicating the chancery court knew of the pend

ing appeal. On 16 Sept

embe r 1994, af ter the C alifornia

superior courtopinion but be fore the Californiacourt of a ppeal's de cision, th e chancery court issued an order granting A ppellee' s motio n to stay

enforce ment

of forei gn judgm

ent. The cour t stated: “It is, therefore, ORDERED that [A ppellee's] Motion for a

stay o f execution is hereby GRANTED, and enfor

cement of the F oreign Judgm ent is hereby staye d, pending fina

l d isposition of

the litigat

ion in Calif

ornia.” Interes tingly, this order is never r

eferre d to in any

of the othe

r do cume nts in the re cord. W e must ass ume t he trial c ourt knew of the pendi ng appeal gi ven the fa cts that the

noti ce o f appeal was a part of the record and the chancery court entered an order gra nting a stay of enforcement after the entry of the California superior court order.
Itis irrele vant whet

her the j udgmen

tdebto r or cre ditor was responsible for bringing forth this information. The fact is the chancer y court knew of th e pending appeal. Upon learning of the a ppeal , the cha ncery court should

have stay ed the enforce ment

of the j udgmen

t. Moreo ver, the

chancer y cour t should n o t have rendered the decision of 9 Apri l 1 996 disposing of the case. Any o ther resu lt would contraven e the purpose of the stat ute which

is obviously

to avoid the

confusion present in this case.
III. Appellant's Remaining Issues
Itis the opinion of this court that Appellant's remaining issues are not pr operly before this court. The tria l court nev er enter

ed an order with re gard to the issues raised by Appellant. In fact, ther e was no need for the c hancery court to determ

ine Appellant s' issues give n its finding there wa s no enforceabl e judgment. “This Court
can only consider such matters as were br ought to the a

ttention of the tri al court a

nd acted upon or permitted by the trial court.” Irvin v. Bin kley , 577 S.W .2d 677, 67 97

(Tenn. App. 1978).
IV. Conclus ion
Therefore , it results that the j udgmen t of the tr ial court i s reverse d, and th e causeis remanded for any further necessary proceedings. Costs on appealare taxed to defenda

nt/appelle e, Joe E . Johnson.

_________________ ___________ SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________

____________ BEN H. CANTRELL, JUDGE

_________________

____________ WILLIAM C. KOCH, JR. JUDGE