CURTIS LANDRY, JR., d/b/a          )
LANDRY AND ASSOCIATES,             )
                                   )    Rutherford Circuit
      Plaintiff/Appellee,          )    No. 36960
                                   )
VS.                                )
                                   )    Appeal No.
JOHN DANIEL RUDD,                  )    01A01-9707-CV-00303
                                   )
      Defendant/Appellant.         )
                                                        FILED
                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE February 20, 1998
                                               Cecil W. Crowson
        APPEAL FROM CIRCUIT COURT OF RUTHERFORD COUNTY
                  AT MURFREESBORO, TENNESSEE Appellate Court Clerk

                   HONORABLE ROBERT E. CORLEW, JUDGE




Stephen W. Pate
218 West Main Street
Suite One
Murfreesboro, TN 37130
ATTORNEY FOR PLAINTIFF/APPELLEE

William Kennerly Burger
301 North Spring Street
Murfreesboro, TN 37133-0398
ATTORNEY FOR DEFENDANT/APPELLANT


                        AFFIRMED AND REMANDED.



                              HENRY F. TODD
                              PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE


CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
CURTIS LANDRY, JR., d/b/a                     )
LANDRY AND ASSOCIATES,                        )
                                              )       Rutherford Circuit
       Plaintiff/Appellee,                    )       No. 36960
                                              )
VS.                                           )
                                              )       Appeal No.
JOHN DANIEL RUDD,                             )       01A01-9707-CV-00303
                                              )
       Defendant/Appellant.                   )



                                    OPINION

       The defendant, John Daniel Rudd, has appealed from a judgment of the Trial Court

allowing the enrollment of two foreign judgments, both in favor of the plaintiff, John Landry

and against the defendant.



       The sole issue on appeal is stated by appellant as follows:

                      Did the trial court properly enter judgment on the
               pleadings, with no factual consideration of the affirmative
               defenses of release and accord and satisfaction?


       The record has been searched without finding a motion for judgment on the pleadings

or a judgment on the pleadings.



       The judgment from which this appeal is prosecuted states:

                       This cause came to be heard on the 13th day of
               December, 1996, before the Honorable Robert E. Corlew III,
               Judge of the Circuit Court for Rutherford County, Tennessee,
               upon filing of two foreign judgments in favor of Curtis L.
               Landry, Jr. d/b/a Landry and Associates against John Daniel
               Rudd, an affidavit by counsel for plaintiffs as required by
               TCA 26-6-101(a), personal service of process on the
               defendant, John Daniel Rudd on August 1, 1996, answer and
               objection to authentication by the defendant, reply to answer
               and objection to authentication by the plaintiff, response to
               plaintiff’s reply filed by the defendant, argument of counsel
               for both parties and the entire record, from all of which the
               court is of the opinion that the defendant’s objection to
               authentication on the basis of the release and accord and
               satisfaction are not well taken and should therefore be denied,
               but plaintiff’s affidavit in support of the two foreign
               judgments is deficient, as it fails to contain a certificate of

                                            -2-
                 authentication (exemplification), and with plaintiff given
                 twenty days to correct said deficiency.

                         It is, therefore, ORDERED, ADJUDGED and
                 DECREED that defendant’s answer and objection to
                 authentication is hereby denied, and plaintiff’s affidavit in
                 support of the filing of foreign judgments against the
                 defendant shall be supplemented by the filing of a certificate
                 of authentication (exemplification) within twenty days of the
                 entry of this order, before execution may issue in favor of
                 plaintiff against the defendant in satisfaction of the two
                 foreign judgments.



          Proper authentication of the foreign judgments was filed and is not questioned on

appeal.



          Appellant contends that the Trial Court erred in overruling his objections to the

enforcement of the foreign judgments on grounds that they were improperly entered by the

foreign court because the right of action upon which the foreign suits was brought had been

satisfied by argument of the parties as evidenced by the order of the Tennessee Court.



          On July 19, 1996, plaintiff filed with the Trial Clerk copies of the two foreign

judgments with an affidavit stating:

                         I, Stephen W. Pate, attorney for the above named
                 plaintiff, Curtis L. Landry, Jr., d/b/a/ Landry and Associates,
                 after being first duly sworn according to law, make oath and
                 affirm that on the date of the filing of the two (2) foreign
                 judgments, both of which are attached hereto, the names and
                 addresses of the judgment debtor and judgment creditor, as
                 required by TCA 26-5-105(a) are as follows.


          Attached to said affidavit were copies of two foreign judgments rendered on January

16, 1996, and April 16, 1996, respectively.



          On October 10, 1996, defendant filed an answer attaching a copy of an order entered

by the Tennessee Trial Court in a previous case styled Curtis L. Landry, Jr. v. John Mitchell

Byrnes and Daniel Rudd. Said answer stated the following defense:



                                              -3-
        2.      JOHN DANIEL RUDD states that the
judgments offered for enforcement are purportedly based on
a contract entered in the state of Tennessee on February 24,
1992, for services to be performed entirely within the state of
Tennessee. Defendant RUDD was sued in the state of
Louisiana in November, 1994, and mistakenly filed a pro se
answer, entering a general appearance in Louisiana, on
November 3, 1994, thereby inadvertently waiving the
jurisdictional defenses which would have been otherwise
available to him since there were no in personam contacts
with the state of Louisiana. A summary judgment motion was
filed by Plaintiff LANDRY on November 29, 1994.
Defendant RUDD thereafter employed Louisiana counsel who
represented him at the summary judgment hearing in February
of 1995. Defendant RUDD prevailed in the summary
judgment matter, and the Louisiana case thereafter became
dormant, with no further activity, other than nominal
settlement discussions, during the spring of 1995.

         During the same general time frame, Plaintiff
LANDRY filed against Defendant JOHN DANIEL RUDD
and a co-defendant (John Mitchell Byrnes), a personal injury
action in Rutherford Circuit civil action number 34914, which
was filed April 24, 1995. Defendants RUDD and Byrnes
answered the personal injury tort claim on June 12, 1995, and
affirmatively asserted the entitlement, based upon the
frivolous nature of the case, to Rule 11 sanctions, including
all attorney’s fees and court costs. During the summer of
1995, Plaintiff LANDRY appeared in proceedings in
Rutherford County. As a consequence of those appearances
and discussions, the parties resolved all issues in dispute
among the parties. An “Agreed Order of Dismissal”, signed
by Plaintiff “CURTIS L. LANDRY, Jr.”, was filed in
Rutherford Circuit civil action number 34914 on August 16,
1995. That agreed order, a copy of which is attached hereto
and incorporated herein by reference, contains the following
unqualified, unlimited, and unconditional release wording,
which acknowledged that “all” matters of controversy
existing between the parties would be compromised and
settled:

                “. . . It appears to the Court that all
        matters in controversy by and between these
        parties have been compromised and settled,
        and that this case should be dismissed with
        prejudice.”


         3.      As of the date of the filing of that agreed order
of dismissal, the Plaintiff LANDRY had failed to obtain the
relief requested in his summary judgment motion argued
earlier in the year in February, 1995. The Louisiana case has
remained dormant for several months, with no efforts by
Plaintiff LANDRY to re-docket the matter. At the time of the
entry of the agreed order of dismissal, LANDRY was aware
that Defendant RUDD was asserting a separate claim against


                               -4-
               him for the filing of a frivolous lawsuit in Tennessee. No
               sums were paid by RUDD to LANDRY, including court
               costs. Accordingly, Defendant RUDD asserts that the later
               reduction to judgment of the Louisiana claim (in August,
               1996) is ineffectual, and was fraudulently procured in
               contravention of the terms of the agreement of the parties to
               resolve “all matters of controversy” existing between them, by
               the entry of the agreed order in the Tennessee action.
               Defendant RUDD otherwise would have never surrendered
               his claim for unjustifiable litigation or abuse of process,
               which, although not specifically identified in the agreed order
               of dismissal, was resolved and released under the terms of the
               inclusive order.

                     4.      Accordingly, Defendant asserts that the matter
               may not be enforced on grounds that it has been released and
               compromised.


       Attached to the quoted pleading was a copy of an order of the Tennessee court in a

previous case reading as follows:

               Curtis L. Landry, Jr.,

                       Plaintiff,

               VS.                                    Case No. 34914

               John Mitchell Byrnes and

               J. Daniel Rudd,

                       Defendants.

                           AGREED ORDER OF DISMISSAL

                        As evidenced by the signature hereon of the Plaintiff
               and the signature hereon of the attorney representing the
               Defendants, it appears to the Court that all matters in
               controversy by and between these parties have been
               compromised and settled and that this case should be
               dismissed with prejudice. By signing this Order, the Plaintiff
               specifically acknowledges that this is a complete and final
               dismissal of this lawsuit and that he will not have the right to
               re-file this lawsuit against either Defendant in any Court.

                      IT IS, THEREFORE, ORDERED, ADJUDGED and
               DECREED that this cause be, and the same is, hereby
               dismissed with prejudice.



       On October 16, 1996, plaintiff filed a “Reply to Answer and Objection to

Authentication” stating:

                                             -5-
                          1.       Plaintiff avers the defenses of release and
                  accord and satisfaction are not applicable, as no payment or
                  consideration has been made or offered by the defendant to
                  plaintiff in this civil action, nor has there been any release or
                  order executed by the party pertaining to the civil action in
                  controversy.
                                                  ----
                          Plaintiff avers that on April 24, 1995, he filed a
                  separate civil action in Rutherford County, Tennessee
                  (#34914), against defendant and a co-defendant, John
                  Mitchell Byrnes, for personal injuries rising out of a
                  motorcycle accident which occurred on defendant’s property
                  in Rutherford County, Tennessee. Plaintiff admits that all
                  issues between the respective parties in civil action #34914
                  were resolved, and an agreed order of dismissal was entered.
                  The agreed order of dismissal, a copy of which being attached
                  hereto, contains the following determinant language:

                                  As evidenced by the signatures hereon
                          of the Plaintiff and the signature hereon of the
                          attorney representing the Defendants, it
                          appears to the court that all matters in
                          controversy by and between these parties have
                          been compromised and settled and that this
                          case should be dismissed with prejudice. By
                          signing this Order, the Plaintiff specifically
                          acknowledges that this is a complete and final
                          dismissal of this lawsuit and that he will not
                          have the right to re-file this lawsuit against
                          either Defendant in any Court. (Italics ours)

                           Plaintiff submits by the clear and plain language of the
                  fact of the agreed order of dismissal, this order only dismissed
                  the suit in controversy between the named parties and no
                  other litigation between these parties.


           On December 11, 1996, defendant filed “Defendant’s Response to Plaintiff’s Reply”

stating:

                         Plaintiff LANDRY sued Defendant RUDD in the state
                  of Louisiana, although RUDD never physically appeared in
                  Louisiana, on the basis of a breach of contract, with that
                  complaint having been filed in Louisiana on or about
                  December 1, 1994, alleging breach of a “consulting
                  agreement” executed by the parties within the state of
                  Tennessee on February 24, 1994.

                          Later, on April 24, 1995, LANDRY filed a frivolous
                  personal injury tort action in Rutherford County, Tennessee
                  in case number 34914 against Defendant RUDD and a Co-
                  Defendant, Dr. John M. Brynes, arising out of his injury while
                  riding a motorcycle on Defendant’s property in Rutherford
                  County, Tennessee. The file attachments reflect that DR.
                  RUDD initially attempted to act pro se in Louisiana and


                                                -6-
              unfortunately made a general appearance. Subsequently, on
              August 15, 1995, following various activities in both forums,
              Plaintiff LANDRY and the Defendants in Rutherford Circuit
              case number 34914 entered an “Agreed Order of Dismissal”
              which included the following:

                               “ . . . All matters in controversy by and
                       between these parties have been compromised
                       and settled . . . .”


                        4.     Defendant RUDD asserts that LANDRY’S
               execution of that instrument with RUDD constitutes exactly
               what the order says: A resolution of “all matters in
               controversy”. It is true that, subsequent to that date, LANDRY
               persisted (or attempted to persist) in pursuing his Louisiana
               litigation.


       The judgment of the Trial Court is quoted above.



       TCA Title 26, Chapter 6 is entitled “Enforcement of Foreign Judgments.” Section

26-6-106 of said chapter reads as follows:

                        Appeal or stay of judgment. - (a) If the judgment
               debtor shows the court of this state that an appeal from the
               foreign judgment is pending or will be taken, or that a stay of
               execution has been granted, the court shall stay enforcement
               of the foreign judgment until the appeal is concluded, the time
               for appeal expires, or the stay of execution expires or is
               vacated.
                        (b) If the judgment debtor shows the court of this state
               any ground upon which enforcement of a judgment of any
               court of this state would be stayed, the court shall stay
               enforcement of the foreign judgment for an appropriate
               period.


       Subsection (b) of the quoted statute requires the Tennessee court to stay, the

enforcement of foreign judgments in this state “for an appropriate period upon any ground

upon which a Tennessee judgment would be stayed.”



       The voluminous pleading recited above demonstrates the following:

       1.      “On or about December 1, 1994,” Curtis L. Landry sued John Daniel Rudd

in the foreign court for breach of a contract executed on February 24, 1994.




                                             -7-
       2.      On April 24, 1995, Curtis L. Landry sued John Mitchell Byrnes and J. Daniel

Rudd in the Tennessee Court in a “personal tort claim; and, on August 16, 1995, an “Agreed

Order of Dismissal” was entered in the Tennessee court reciting that “all matters in

controversy by and between these parties have been compromised and settled, and that this

case should be dismissed with prejudice,” and ordering that “this cause be dismissed with

prejudice.”



       3.      John Daniel Rudd filed an answer, personally appeared before the foreign

court and subsequently employed counsel to represent him before the foreign court.



       4.      The two foreign judgments were entered on January 16, 1996, and April 16,

1996, respectively.



       5.      The December 30, 1996, judgment of the Tennessee court states merely that:

                       “The defendant’s objection to authentication on the
               basis of accord and satisfaction are not well taken.”
                                             ----
                       It is therefore ordered --- that defendant’s answer and
               objection to authentication is hereby denied.


       Although the expression, “judgment on the pleadings” does not appear in the

pleadings or judgment, it may be said that the effect of the judgment of the Trial Court was

that of a judgment on the pleadings as authorized by TRCP 12.03 because the answer of

defendant admitted the material allegations of the complaint and did not assert an effective

defense.



       Said rule reads as follows:

                        Motion for Judgment on the Pleadings. - After the
               pleadings are closed but within such time as not to delay the
               trial, any party may move for judgment on the pleadings. If,
               on a motion for judgment on the pleadings, matters outside
               the pleadings are presented to and not excluded by the court,
               the motion shall be treated as one for summary judgment and
               disposed of as provided in Rule 56, and all parties shall be

                                            -8-
                given reasonable opportunity to present all material made
                pertinent to such a motion by Rule 56.


       It may be said with equal reason that the “judgment on the pleadings” should be

treated as a summary judgment.



       From a review of the entire record, this Court concludes that the result reached by the

Trial Court was correct because the appellant had adequate opportunity to present to the

foreign court his defense of accord and satisfaction of the claim asserted in the foreign court,

that he failed to present such defense to the foreign court, and that his failure to do so

constituted a waiver of such defense.



        Stated otherwise, defendant is not entitled to a second opportunity to present his

defense, or the judgment of the foreign court is res judicata as to such defense.



        Moreover, this Court is of the opinion that, under the facts, and circumstances

reflected by this record, the settlement and satisfaction of a tort claim against two defendants

did not satisfy a contract claim against one of the defendants in the tort case.



        The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

the defendant and his surety. The cause is remanded to the Trial Court for enforcement of

its judgment.

                            AFFIRMED AND REMANDED.



                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION
CONCUR:


BEN H. CANTRELL, JUDGE


CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE

                                                -9-
-10-
