COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED February 27, 1998
HENRY WITT and wife ) C/A NO. 03A01-9709-CH-00400 Cecil Crowson, Jr. MARGARET WITT, ) Appellate C ourt Clerk ) Plaintiffs-Appellees, ) ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) BRADLEY COUNTY CHANCERY COURT ) ) ) ) TENNESSEE FARMERS MUTUAL ) INSURANCE COMPANY, ) ) HONORABLE EARL H. HENLEY, Defendant-Appellant. ) CHANCELLOR
For Appellant For Appellees
DOUGLAS M. CAMPBELL RICHARD A. FISHER PAUL CAMPBELL, III JAMES F. LOGAN, JR. Campbell & Campbell Logan, Thompson, Miller, Bilbo, Chattanooga, Tennessee Thompson and Fisher, P.C. Cleveland, Tennessee
BERT H. BATES Bates, Sellers & Robinson Cleveland, Tennessee
O P I N IO N
VACATED AND REMANDED Susano, J.
1 The plaintiffs, Henry Witt and wife, Margaret Witt
(“the Witts”), seek to domesticate a foreign judgment against
Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”),
pursuant to the provisions of the Uniform Enforcement of Foreign
Judgments Act, T.C.A. § 26-6-101, et seq. The judgment sought to
be domesticated is based on the uninsured motorist coverage of an
automobile insurance policy issued by Tennessee Farmers. The
trial court entered an order, decreeing that
the Petition to Domesticate a Default Judgment entered by the Murray County Superior Court against Tennessee Farmers Mutual Insurance Company be and hereby is granted, and the Georgia Judgment be and hereby is made a judgment of this Court and entered for further proceedings;...
Tennessee Farmers appealed, arguing that the trial court erred in
denying its motion to dismiss, and erred in summarily granting
the plaintiffs’ application to domesticate the Georgia judgment.
The insurance company contends that it was entitled to a trial on
the merits.
I. Procedural History
On November 7, 1995, pursuant to the provisions of
T.C.A. §§ 26-6-104(a) and 26-6-105(a), the Witts’ attorney,
Richard A. Fisher, filed his affidavit in the instant case, along
with an authenticated copy of the Georgia judgment. The judgment
reflects that it was entered on September 6, 1995, in a
proceeding in the Murray County, Georgia, Superior Court, styled
Henry Witt, et ux., Margaret Witt v. Judy Martin Charles and
2 Tennessee Farmers Mutual, Uninsured Motorist Carrier, Civil
Action No. 95-CI-74. The judgment awards $50,000 to Henry Witt
and $5,000 to Margaret Witt, both awards being against Tennessee
Farmers. It further reflects that it was entered on the Witts’
motion for summary judgment. The judgment does not show a final
disposition of the Witts’ claim against the co-defendant, Judy
Martin Charles; however, it does reflect that process was issued
as to Ms. Charles and returned “not to be found.”
On December 8, 1995, in the instant case, Tennessee
Farmers filed a motion to dismiss the plaintiffs’ action,
attacking the validity of the Georgia judgment. The motion
relies upon subsections (1), (2), (5), and (6) of Rule 12.02,
Tenn.R.Civ.P. It alleges that the Georgia court lacked subject
matter jurisdiction and in personam jurisdiction over Tennessee
Farmers. The insurance company also contends in its motion that
there was insufficiency of service of process in the Georgia
court proceeding. Finally, the motion alleges that the
plaintiff’s application fails to state a claim upon which relief
can be granted. Tennessee Farmers supported its motion with the
affidavits of two of its employees and a certified copy of an
insurance policy issued to a Charles W. Raines. One of the
affidavits strongly implies that the uninsured motorist coverage
of the Raines policy “is the subject of this suit.” The record
also contains Tennessee Farmers’ answers to six interrogatories
filed by the Witts.
On July 2, 1997, the trial court in the case at bar
filed its memorandum opinion. After alluding, in general terms,
3 to Tennessee Farmers’ objections to the domestication of the
foreign judgment, the trial court’s written opinion finds that
the “judgment is valid and should be entered for further
procedure.” The trial court’s memorandum opinion was
incorporated into an order, which was entered on July 30, 1997.
The order denies Tennessee Farmers’ motion and grants the Witts’
application to domesticate the Georgia judgment.
II. Analysis
When Tennessee Farmers supported its motion with
“matters outside the pleadings,” see Rule 12.03, Tenn.R.Civ.P.,
it presented the trial court with a motion to be treated as one
for summary judgment. Id. In its first issue, Tennessee Farmers
asks us to find that the trial court should have granted its
motion and dismissed the Witts’ application to domesticate the
Georgia judgment. Generally speaking, the denial of a summary
judgment motion is not suitable for appellate review as of right.
Oliver v. Hydro-Vac Services, Inc.., 873 S.W.2d 694, 696
(Tenn.App. 1993) (quoting from the unreported decision of this
court in the case of Harriet Teresa Martin v. Washmaster Auto
Center, Inc., and Murfreesboro Road Autowash Association, Inc.,
1993 WL 241315 (Tenn.App. 1993)). This is because such an
interlocutory decision does not satisfy the finality requirement
of Rule 3(a), T.R.A.P., Id.
The trial court was obviously satisfied that the papers
before it did not show that Tennessee Farmers was entitled to
4 summary judgment. That interlocutory decision is not reviewable
as of right on this appeal.
Under normal circumstances, we would now turn to the
trial court’s decision to domesticate the Georgia judgment and
determine whether the evidence preponderates against that
decision, see Rule 13(d), T.R.A.P.; but in this case it appears
that the Witts’ application was granted before an answer could be
filed and without a plenary hearing. The trial court apparently
heard argument on the motion, took it under advisement, and then,
without allowing a further response or a hearing on the merits,
entered a judgment domesticating the Georgia judgment.1 We find
this procedure to be irregular and inconsistent with the
provisions of the Rules of Civil Procedure.
Rule 12.01, Tenn.R.Civ.P., provides that a defendant
“shall serve an answer within 30 days after the service of the
summons.” If, instead of an answer, a defendant files “a motion
permitted under [Rule 12],” the service of such a motion
alters [the 30-day period to respond] as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion..., the responsive pleading shall be served within 15 days after notice of the court’s action;...
Id. Thus, the trial court, having denied Tennessee Farmers’
motion, was required to afford the defendant an opportunity to
1 The trial court’s action cannot be justified as a grant of summary judgment, see Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 255 (Tenn.App. 1992), because the plaintiffs did not seek summary judgment.
5 plead further. By summarily granting the Witts’ application and
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COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE FILED February 27, 1998
HENRY WITT and wife ) C/A NO. 03A01-9709-CH-00400 Cecil Crowson, Jr. MARGARET WITT, ) Appellate C ourt Clerk ) Plaintiffs-Appellees, ) ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) BRADLEY COUNTY CHANCERY COURT ) ) ) ) TENNESSEE FARMERS MUTUAL ) INSURANCE COMPANY, ) ) HONORABLE EARL H. HENLEY, Defendant-Appellant. ) CHANCELLOR
For Appellant For Appellees
DOUGLAS M. CAMPBELL RICHARD A. FISHER PAUL CAMPBELL, III JAMES F. LOGAN, JR. Campbell & Campbell Logan, Thompson, Miller, Bilbo, Chattanooga, Tennessee Thompson and Fisher, P.C. Cleveland, Tennessee
BERT H. BATES Bates, Sellers & Robinson Cleveland, Tennessee
O P I N IO N
VACATED AND REMANDED Susano, J.
1 The plaintiffs, Henry Witt and wife, Margaret Witt
(“the Witts”), seek to domesticate a foreign judgment against
Tennessee Farmers Mutual Insurance Company (“Tennessee Farmers”),
pursuant to the provisions of the Uniform Enforcement of Foreign
Judgments Act, T.C.A. § 26-6-101, et seq. The judgment sought to
be domesticated is based on the uninsured motorist coverage of an
automobile insurance policy issued by Tennessee Farmers. The
trial court entered an order, decreeing that
the Petition to Domesticate a Default Judgment entered by the Murray County Superior Court against Tennessee Farmers Mutual Insurance Company be and hereby is granted, and the Georgia Judgment be and hereby is made a judgment of this Court and entered for further proceedings;...
Tennessee Farmers appealed, arguing that the trial court erred in
denying its motion to dismiss, and erred in summarily granting
the plaintiffs’ application to domesticate the Georgia judgment.
The insurance company contends that it was entitled to a trial on
the merits.
I. Procedural History
On November 7, 1995, pursuant to the provisions of
T.C.A. §§ 26-6-104(a) and 26-6-105(a), the Witts’ attorney,
Richard A. Fisher, filed his affidavit in the instant case, along
with an authenticated copy of the Georgia judgment. The judgment
reflects that it was entered on September 6, 1995, in a
proceeding in the Murray County, Georgia, Superior Court, styled
Henry Witt, et ux., Margaret Witt v. Judy Martin Charles and
2 Tennessee Farmers Mutual, Uninsured Motorist Carrier, Civil
Action No. 95-CI-74. The judgment awards $50,000 to Henry Witt
and $5,000 to Margaret Witt, both awards being against Tennessee
Farmers. It further reflects that it was entered on the Witts’
motion for summary judgment. The judgment does not show a final
disposition of the Witts’ claim against the co-defendant, Judy
Martin Charles; however, it does reflect that process was issued
as to Ms. Charles and returned “not to be found.”
On December 8, 1995, in the instant case, Tennessee
Farmers filed a motion to dismiss the plaintiffs’ action,
attacking the validity of the Georgia judgment. The motion
relies upon subsections (1), (2), (5), and (6) of Rule 12.02,
Tenn.R.Civ.P. It alleges that the Georgia court lacked subject
matter jurisdiction and in personam jurisdiction over Tennessee
Farmers. The insurance company also contends in its motion that
there was insufficiency of service of process in the Georgia
court proceeding. Finally, the motion alleges that the
plaintiff’s application fails to state a claim upon which relief
can be granted. Tennessee Farmers supported its motion with the
affidavits of two of its employees and a certified copy of an
insurance policy issued to a Charles W. Raines. One of the
affidavits strongly implies that the uninsured motorist coverage
of the Raines policy “is the subject of this suit.” The record
also contains Tennessee Farmers’ answers to six interrogatories
filed by the Witts.
On July 2, 1997, the trial court in the case at bar
filed its memorandum opinion. After alluding, in general terms,
3 to Tennessee Farmers’ objections to the domestication of the
foreign judgment, the trial court’s written opinion finds that
the “judgment is valid and should be entered for further
procedure.” The trial court’s memorandum opinion was
incorporated into an order, which was entered on July 30, 1997.
The order denies Tennessee Farmers’ motion and grants the Witts’
application to domesticate the Georgia judgment.
II. Analysis
When Tennessee Farmers supported its motion with
“matters outside the pleadings,” see Rule 12.03, Tenn.R.Civ.P.,
it presented the trial court with a motion to be treated as one
for summary judgment. Id. In its first issue, Tennessee Farmers
asks us to find that the trial court should have granted its
motion and dismissed the Witts’ application to domesticate the
Georgia judgment. Generally speaking, the denial of a summary
judgment motion is not suitable for appellate review as of right.
Oliver v. Hydro-Vac Services, Inc.., 873 S.W.2d 694, 696
(Tenn.App. 1993) (quoting from the unreported decision of this
court in the case of Harriet Teresa Martin v. Washmaster Auto
Center, Inc., and Murfreesboro Road Autowash Association, Inc.,
1993 WL 241315 (Tenn.App. 1993)). This is because such an
interlocutory decision does not satisfy the finality requirement
of Rule 3(a), T.R.A.P., Id.
The trial court was obviously satisfied that the papers
before it did not show that Tennessee Farmers was entitled to
4 summary judgment. That interlocutory decision is not reviewable
as of right on this appeal.
Under normal circumstances, we would now turn to the
trial court’s decision to domesticate the Georgia judgment and
determine whether the evidence preponderates against that
decision, see Rule 13(d), T.R.A.P.; but in this case it appears
that the Witts’ application was granted before an answer could be
filed and without a plenary hearing. The trial court apparently
heard argument on the motion, took it under advisement, and then,
without allowing a further response or a hearing on the merits,
entered a judgment domesticating the Georgia judgment.1 We find
this procedure to be irregular and inconsistent with the
provisions of the Rules of Civil Procedure.
Rule 12.01, Tenn.R.Civ.P., provides that a defendant
“shall serve an answer within 30 days after the service of the
summons.” If, instead of an answer, a defendant files “a motion
permitted under [Rule 12],” the service of such a motion
alters [the 30-day period to respond] as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion..., the responsive pleading shall be served within 15 days after notice of the court’s action;...
Id. Thus, the trial court, having denied Tennessee Farmers’
motion, was required to afford the defendant an opportunity to
1 The trial court’s action cannot be justified as a grant of summary judgment, see Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 255 (Tenn.App. 1992), because the plaintiffs did not seek summary judgment.
5 plead further. By summarily granting the Witts’ application and
thereby denying the defendant the right to plead further and put
on proof with respect to its defenses, the trial court committed
error.
It is clear that the Rules of Civil Procedure apply to
a proceeding under T.C.A. § 26-6-101, et seq. See Rule 1,
Tenn.R.Civ.P., (“Subject to such exceptions as are stated in
them, these rules shall govern the procedure in the circuit and
chancery courts of Tennessee..., in all civil actions, whether at
law or in equity,...). See also Rule 2, Tenn.R.Civ.P., (“All
actions in law or equity shall be known as ‘civil actions.’”).
While we find no conflict between the procedures outlined in
T.C.A. § 26-6-101, et seq., and the provisions of the Rules of
Civil Procedure pertaining to the right of a defendant to file an
answer and its further right to a trial on the merits of all
issues properly raised in that answer, any such conflict must be
resolved in favor of the Rules. See Lock v. Nat. Union Fire Ins.
Co. of Pa., 809 S.W.2d 483, 489 (Tenn. 1991). It is clear that a
defendant has the right to contest the validity of a foreign
judgment by a trial on the merits if issues are properly raised
in its answer. See Four Seasons Gardening & Landscaping, Inc. v.
Crouch, 688 S.W.2d 439, 441-42 (Tenn.App. 1984)(“the courts of
this State will presume, absent proper proof to the contrary,
that the decrees of the courts of record of any sister states are
valid.”) (Emphasis added). In this case, the trial court denied
Tennessee Farmers that right.
6 The plaintiffs rely on two unreported decisions of this
court to sustain the procedure utilized by the trial court in the
instant case. See Kreisler Mfg. Corp. v. Wiley, 1989 WL 1111
(Tenn.App. 1989); McCall v. Johnson, 1995 WL 138898 (Tenn.App.
1995). We do not believe that either case supports the
plaintiffs’ position. Neither of these cases addresses the issue
of a defendant’s right to plead further upon denial of its motion
for summary judgment.
It results that the judgment of the trial court is
vacated. Costs on appeal are taxed against the Witts. This case
is remanded for further proceedings, not inconsistent with this
opinion.
___________________________ Charles D. Susano, Jr., J.
CONCUR:
________________________ Houston M. Goddard, P.J.
________________________ Don T. McMurray, J.