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Estate of Bentley v. Byrd

Court of Appeals of Tennessee, Jackson

February 15, 2018


          Session November 15, 2017

         Appeal from the Circuit Court for Madison County No. C-08-73 Kyle Atkins, Judge [1]

         In this case, a judgment creditor pursued enforcement of a foreign judgment. Although the judgment creditor obtained a charging order against the judgment debtor's interest in a partnership and later moved to foreclose this interest, the judgment debtor subsequently moved to dismiss the case and vacate all prior orders by alleging that he had never been properly served. The trial court denied the motion to dismiss and entered an order allowing foreclosure against the partnership interest. Despite filings by the judgment debtor highlighting the absence of personal service, the trial court ultimately left its enforcement orders undisturbed. Because we agree that the judgment debtor never received proper service incident to the judgment creditor's attempt to enroll the foreign judgment, we vacate the trial court's orders relating to execution.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and Remanded

          Larry A. Butler and Sara E. Barnett, Jackson, Tennessee, for the appellant, Hishbach LLC a/k/a Hishbach Partners.

          Russell John Johnson, Memphis, Tennessee, for the appellees, Estate of Mark Bentley.

          Wood Byrd, Pro se.

          Arnold B. Goldin, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Joe G. Riley, Sp. J., joined.



         Background and Procedural History

         The present litigation was commenced on March 4, 2008, when Mark Bentley ("Mr. Bentley") filed a complaint in the Madison County Circuit Court under the Uniform Enforcement of Foreign Judgments Act, Tenn. Code Ann. § 26-6-101 et seq. In his complaint, Mr. Bentley alleged that he had previously received a monetary judgment against Wood Byrd[2] ("Mr. Byrd") in an Alabama court. The stated sum of the judgment was in the principal amount of $1, 350, 000.00. According to Mr. Bentley, this judgment remained fully unsatisfied, and he accordingly sought to execute on Mr. Byrd's interests in Tennessee, including, but not limited to, those interests held in "Hisbach LLC, a/k/a Hishbach LLC, a/k/a Hishbach Partners, " which the complaint termed as "one of [Mr. Byrd's] companies."

         After over a month had passed from the filing of his complaint, Mr. Bentley engaged in active efforts to execute on the Alabama judgment. On April 14, 2008, he moved the Circuit Court for a charging order against Mr. Byrd's interests in Hishbach Partners. In addition to requesting that Mr. Byrd's distributable interests in the partnership be paid to him as opposed to Mr. Byrd, Mr. Bentley prayed that the Circuit Court permit a foreclosure of Mr. Byrd's overall interest in Hishbach Partners should it appear that the Alabama judgment could not be satisfied within a reasonable time.

         Following Mr. Bentley's request for a charging order, questions arose concerning the propriety of his attempts at execution. At the forefront of the discussion was the issue of service, or lack thereof, on Mr. Byrd. In responding to Mr. Bentley's request for a charging order, Hishbach Partners observed that pursuant to Tennessee Code Annotated section 26-6-105(c), no execution could issue until thirty days after service on the judgment debtor. See Tenn. Code Ann. § 26-6-105(c) ("No execution or other process for enforcement of a foreign judgment . . . shall issue until thirty (30) days after the date a summons has been served upon the judgment debtor."). Hishbach Partners also cited language in the Revised Uniform Partnership Act, which provides that "a court having jurisdiction may charge the transferable interest of the judgment debtor to satisfy the judgment." Tenn. Code Ann. § 61-1-504(a) (emphasis added). According to Hishbach Partners, because Mr. Byrd had never been served with process, Mr. Bentley's requested relief could not be granted.

         Hishbach Partners' observations about the lack of service on Mr. Byrd were not misplaced. Although there is evidence in the record that Mr. Bentley engaged in efforts to correspond with Mr. Byrd following the filing of the complaint, the record reflects that Mr. Byrd was never properly served. Nevertheless, execution efforts proceeded. On September 2, 2008, in spite of Hishbach's ...

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