Session November 15, 2017
from the Circuit Court for Madison County No. C-08-73 Kyle
Atkins, Judge 
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Vacated and Remanded
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.
Byrd, Pro se.
B. Goldin, J., delivered the opinion of the court, in which
J. Steven Stafford, P.J., W.S., and Joe G. Riley, Sp. J.,
B. GOLDIN, JUDGE.
and Procedural History
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
("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."
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.
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.
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 ...