                  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.




                                  7
