                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                           February 8, 2006 Session

  SHEPARD BARBASH v. MONTY R. BRUELL AND ANTHONY SMITH

               Direct Appeal from the Chancery Court for Hamilton County
                    No. 01-1159    Hon. Howell N. Peoples, Chancellor



                 No. E2005-00387-COA-R3-CV - FILED MARCH 9, 2006


Defendant’s Tenn. R. Civ. P. 60 Motion to be relieved of the Trial Court’s Judgment was denied.
On appeal, we affirm on the ground that the Motion was untimely filed.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which SHARON G. LEE, J.,
joined, and D. MICHAEL SWINEY , J., filed a separate Concurring Opinion.

James H. Harris, Nashville, Tennessee, for appellant, Anthony Smith.

James B.M. Hooper, Chattanooga, Tennessee, for appellee.



                                           OPINION

              The genesis of action in this State was a suit in the state of Georgia by plaintiff
against defendant and Monty Bruell as the guarantors of a promissory note. The defendant was
served with process in the Georgia case, and on August 24, 2001, the Georgia Court entered a
Default Judgment against this defendant.

               On October 4, 2001, plaintiff filed a Complaint in the Chancery Court of Hamilton
County to domesticate the Georgia Judgment pursuant to the Uniform Enforcement of Foreign
Judgments Act. Tenn. Code Ann. § 26-6-101 et seq. Defendant again failed to appear, and a Default
Judgment was entered against defendant and judgment pursuant to the Uniform Act was entered on
January 16, 2002. On September 21, 2004, defendant filed a “Motion to Vacate and Void Judgment”
in the Chancery Court, which Motion was denied by the Trial Court on December 7, 2004.
             Then, on December 17, 2004, defendant filed another Motion to “Vacate a Void
Judgment under the authority of Rule 60.02(2) . . . “ and the Trial Court on January 3, 2005, denied
defendant’s Motion. Defendant has perfected his appeal from that Order.

              It is defendant’s position that the Georgia Judgment is void on the grounds that the
Georgia Court did not have in personam jurisdiction over this defendant, and that since it is a void
Judgment that he can raise this issue at any time.

              Defendant seeks relief from the Judgment under the authority of Tenn. R. Civ. P.
60.02(3). Rule 60.02 provides:

               On motion and upon such terms as are just, the court may relieve a party or the
               party’s legal representative from a final judgment, order or proceeding for the
               following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud
               (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other
               misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been
               satisfied, released or discharged, or a prior judgment upon which it is based has been
               reversed or otherwise vacated, or it is no longer equitable that a judgment should
               have prospective application; or (5) any other reason justifying relief from the
               operation of the judgment. The motion shall be made within a reasonable time, and
               for reasons (1) and (2) not more than one year after the judgment, order or proceeding
               was entered or taken. A motion under this Rule 60.02 does not affect the finality of
               a judgment or suspend its operation, but the court may enter an order suspending the
               operation of the judgment upon such terms as to bond and notice as to it shall seem
               proper pending the hearing of such motion. This rule does not limit the power of a
               court to entertain an independent action to relieve a party from a judgment, order or
               proceeding, or to set aside a judgment for fraud upon the court. Writs of error coram
               nobis, bills of review and bills in the nature of a bill of review are abolished, and the
               procedure for obtaining relief from a judgment shall be by motion as prescribed in
               these rules or by an independent action.

              The body of the Rule provides that motions pursuant to (3) “shall be made within a
reasonable time”.

               A prima facie void judgment may be attacked at any time and is unenforceable. State
ex rel Ragsdale v. Sandefur, 215 Tenn. 690, 389 S.W.2d 266, 271 (Tenn. 1965); Muller v. Morelock,
185 Tenn. 466, 470, 206 S.W.2d 27, 29; Team Design v. Gottlieb, 104 S.W.3d 512, 525 (Tenn. Ct.
App. 2002). This Court, in Pittman v. Pittman, 1994 WL 456348 (Tenn. App.), held that the
Tennessee Rules of Civil Procedure did not prescribe a specific time limit for challenging a void
judgment, and the Court looked to federal precedents under the Federal Rules of Civil Procedure and
determined that Fed. R. Civ. P. 60(b)(4) does not impose a time limit on post-judgment motions
challenging a void judgment.



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                A petition for relief under Rule 60.02 addresses itself to the sound discretion of the
trial court. Rogers v. Estate of Russell, 50 S.W.3d 441, 445 (Tenn. Ct. App. 2001), and our review
of such decisions are under an abuse of discretion standard. The Trial Court’s decision to grant full
faith and credit to a judgment of another state is a question of law. It is reviewed de novo upon the
record with no presumption of correctness of the Trial Court’s conclusions of law. First State Bank
of Holly Springs v. Wyssbrod, et al., 124 S.W.3d 566 (Tenn. Ct. App. 2003).

                A party undertaking to undermine the validity of a foreign judgment must meet a
“stern and heavy” burden to demonstrate that the foreign judgment should not be enforced in
Tennessee. Dement v. Kitts, 777 S.W.2d 33, 36 (Tenn. Ct. App. 1989). The factual issues
underlying the foreign judgment may not be the basis of an inquiry to deny the foreign judgment full
faith and credit. Benham v. Fisher, 650 S.W.2d 759 (Tenn. Ct. App. 1983).

                The record does not indicate that defendant has made any attempt to set aside the
default judgment entered against him in Georgia, or the default judgment entered against him in
Tennessee, enrolling the Georgia Judgment. Nor does he offer any excuses as to why he failed to
respond. We therefore, must consider his enactions to be wilful. Lewis, et al., v. Bowen, et al., 2004
Tenn. App. Lexis 820 (Tenn. Ct. App. December 1, 2004). Defendant merely asserts the conclusion
that the Judgment was “void”. Our examination of the Georgia Judgment reveals that the Judgment
is “prima facially valid.”, and the rule we applied in Pittman that an attack on a void judgment can
be raised at any time under any conditions is inapplicable to this case. Where the judgment is
voidable, vis a vis void, the reasonable time limitation is applicable. See, Gentry v. Gentry, 924
S.W.2d 678 (Tenn. 1996); Hart v. Tourte, 10 S.W.3d 263 (Tenn. Ct. App. 1999); State ex rel
Phillips v. Phillips, 2002 Tenn. App. Lexis 835 (Nov. 26, 2002); and Lewis, et al., v. Bowen, et al.

                We hold that the defendant’s delay in bringing his Rule 60 petitions amounted to an
unreasonable delay under the Rule. He failed to give any reasonable explanation for his delay, and
the circumstances of having been sued and served on two different occasions were apparently
ignored by the defendant. See, Magnavox v. Boles and Hyatt Construction Co., 583 S.W. 611 (Tenn.
App. 1979).

               Accordingly, we affirm the Judgment of the Trial Court and remand, with the cost
of the appeal assessed to Anthony E. Smith.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J.



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