                   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



D. MICHAEL SWINEY , J., concurring opinion


               I concur with the majority’s Opinion. I write separately to address one additional
point which I believe also is fatal to the defendant’s appeal.

               As noted in the majority’s Opinion, a judgment against the defendant was entered in
the Chancery Court of Hamilton County on January 16, 2002. It is this Tennessee judgment that the
defendant attempted to have vacated under Rule 60.02(2). It is, however, the Georgia judgment that
the defendant argues is void on the ground that the Georgia court did not have personal jurisdiction
over him. The defendant makes no such argument as to the Tennessee judgment.

                The defendant does not claim that the Tennessee court did not have personal
jurisdiction over him. I believe this is an important distinction as the defendant does not argue that
the Tennessee judgment was void, but rather argues that the Georgia judgment was void even though
it is the Tennessee judgment the defendant attempts to attack by Rule 60.02(2). While the
defendant’s attack and argument that the Georgia judgment was void because of lack of personal
jurisdiction over him may or may not have any validity, I think that question became moot once the
defendant allowed the separate Tennessee judgment to go down against him, allowed that judgment
to become final, and only then attempted to attack the Tennessee judgment by means of Rule
60.02(2).

                  I concur in the majority’s Opinion. I, however, would affirm for this additional
reason as well.



                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE
