James Eric Crain v. CRST Van Expedited, Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 9, 2011 Session
JAMES ERIC CRAIN v. CRST VAN EXPEDITED, INC.
Appeal from the Chancery Court for Knox County
No. 174733-3 Michael W. Moyers, Chancellor
No. E2010-01457-COA-R3-CV - FILED - MAY 11, 2011
This case stems from an employment contract dispute. James Eric Crain (“Crain”) was
terminated by his employer, CRST Van Expedited, Inc. (“CRST”). CRST demanded
payment from Crain pursuant to a clause in his employment contract. Crain filed suit in the
Knox County Chancery Court (the “Trial Court”), seeking, among other things, injunctive
relief. CRST filed an answer and counterclaim in the Trial Court seeking damages, among
other things. CRST also filed a lawsuit, based on the same facts and issues, against Crain
in Iowa. CRST prevailed in the Iowa lawsuit before the suit in Tennessee went to judgment.
CRST filed a motion for summary judgment in the Trial Court, which was granted. Crain
appeals, raising a number of issues. We hold that the Trial Court did not err in granting
CRST’s motion for summary judgment relying on the doctrine of res judicata. We further
hold that the Trial Court did not err in finding that CRST also was entitled to judgment as a
matter of law pursuant to the Uniform Enforcement of Foreign Judgments Act. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., and J OHN W. M CC LARTY, J.J., joined.
James M. Crain, Knoxville, Tennessee, for the appellant, James Eric Crain.
Benjamin K. Lauderback, Knoxville, Tennessee, for the appellee, CRST Van Expedited, Inc.
OPINION
Background
Crain, a citizen and resident of Knoxville, Tennessee, traveled to Iowa seeking
employment with CRST, a trucking company. CRST conducts a driver training program for
prospective drivers. In 2008, Crain signed both a pre-employment training agreement and
a driver employment contract with CRST. After a period of training and employment, Crain
was terminated by CRST. CRST sought payment from Crain based on the employment
contract. Given the issues presented to us on appeal, a detailed description of the terms of
the two contracts signed by Crain with CRST is not necessary. Suffice it to say that the suits
in Iowa and in Tennessee involved the same contractual rights and obligations of the parties.
Crain refused to pay and sued CRST in the Trial Court in Knox County,
Tennessee. Crain sought, in part, a temporary injunction whereby CRST would be ordered
not to initiate any action in any other court against him arising from the contracts at issue in
this case. The Trial Court subsequently denied the injunctive relief that Crain sought. On
August 18, 2009, CRST filed its Answer and Counterclaim to Crain’s complaint in the Trial
Court seeking damages for breach of employment contract, among other things.
Also on August 18, 2009, CRST filed an action against Crain in the Iowa
District Court in and for Linn County, setting out the same facts and issues as contained in
the Answer and Counterclaim filed in the Trial Court. Crain appeared in the Iowa suit and
filed an Answer and Motion to Dismiss. The motion was denied.
On October 13, 2009, the Iowa District Court entered a judgment for CRST in
the amount of four thousand eight hundred eighteen dollars and thirty-nine cents ($4,818.39)
with interest taxed at eighteen percent (18%) from October 13, 2009. CRST also was
awarded one hundred eighty-one dollars and sixty-one cents ($181.61) in attorney fees, as
well as eighty-five dollars ($85.00) in costs. Crain did not appeal the Iowa District Court
judgment.
In December 2009, CRST filed first a Motion to Domesticate and Enforce
Foreign Judgment and then a Motion for Summary Judgment in the Trial Court. In its
Memorandum of Fact and Law in support of the Motion for Summary Judgment, CRST
based its argument on the doctrines of res judicata and/or collateral estoppel, or, in the
alternative, on the grounds to domesticate a foreign judgment. CRST also filed a Statement
of Undisputed Material Facts, as follows:
1. On or about April 1, 2009 the Plaintiff filed this matter against
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this Defendant. In summary, the Plaintiff alleged in 2008 he traveled to Iowa
to obtain training to become an over the road truck driver with CRST.
2. Plaintiff signed two (2) documents in 2008 pertaining to his
employment, a pre-employment driver training agreement and a driver
employment contract.
3. After the Plaintiff was terminated from his employment with
CRST this Defendant sought damages from him incurred from both training
the Plaintiff and due to the breach of the employment contract signed by the
Plaintiff as a provision of his employment.
4. Rather than paying to CRST what the Plaintiff owed it, the
Plaintiff filed suit in this Court seeking, among other things, a temporary
injunction wherein he asked this Court to order this Defendant not to pursue
a judgment against the Plaintiff in the State of Iowa and to find, essentially,
that this Court was the only Court with jurisdiction over the claims raised.
5. CRST filed an Answer and brought its own counterclaim for
damages and other relief.
6. This Court denied the Plaintiff’s Motion for injunctive relief by
Order entered on July 22, 2009.
7. This Defendant then filed an action in Iowa against the Plaintiff for
breach of the same employment contract at issue in this matter on August 18,
2009, and attached as an exhibit the same Driver’s Employment Contract that
Mr. Crain attached to his Complaint in this Court. The parties, facts and issues
in the Iowa cause were the same as in the matter at bar.
8. The Plaintiff, Mr. Crain, did appear in that matter and filed both
an Answer and a Motion to Dismiss, which was denied.
9. On October 13, 2009, in the Iowa District Court in and for Linn
County, a court of record in Iowa, a Judgment was entered for CRST against
Mr. Crain.
10. The Judgment rendered against Mr. Crain in Iowa was for the
full amount also claimed by CRST in its counterclaim filed in this matter.
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11. The total amount awarded CRST in Iowa totaled four thousand
eight hundred eighteen dollars and thirty-nine cents ($4,818.39) with interest
taxed at a rate of eighteen percent (18%) from October 13, 2009 as well as
attorneys fees in the amount of one hundred eighty-one dollars and sixty-one
cents ($181.61) plus costs of the action in the amount eighty-five dollars
($85.00).
12. The Plaintiff, Mr. Crain, did not file an appeal of the Iowa
judgment adverse to him.
12.[sic] Exhibit 3 is an accurate and authentic copy of the
Judgment obtained in Iowa….
(citations omitted). CRST included with its Statement of Undisputed Material Facts an
affidavit of attorney Thomas D. Wolle, with a copy of the Iowa District Court’s judgment
attached.
Crain did not respond to CRST’s Statement of Undisputed Material Facts.
Instead, Crain filed a Motion to Strike on May 3, 2010, arguing that the copy of the Iowa
District Court judgment was uncertified and should be stricken. On May 6, 2010, CRST
responded to Crain’s Motion to Strike, this time including a certified copy of the Iowa
District Court’s judgment.
After a hearing on the pending motions, the Trial Court entered its judgment,
finding and holding:
that CRST’s Motion for Summary Judgment is GRANTED. It is further
Ordered that the Plaintiff’s Motion to Strike on grounds that rule 13.01 of the
Tenn[.] R. Civ. P. would prevent the Iowa judgment from being entered in
Tennessee is DENIED. The Plaintiff’s Motion to Strike is well taken insofar
as to striking Exhibit B from the affidavit of Thomas D. Wolle, but this court
further finds any deficiency regarding the filing of a foreign judgment was
cured by the filing of a properly certified judgment by CRST in CRST’s
response to the Plaintiff’s Motion to Strike. Pertaining to the Summary
Judgment motion filed by CRST, this Court finds the doctrine of res judicata
and claim preclusion applies. The Plaintiff failed to file a response to or
dispute the Statement of Undisputed Material Facts asserted by CRST. This
Court further finds that essential elements of CRST’s summary judgment
motion were proven by CRST through the applicable Iowa judgment, and that
essential elements of the plaintiff’s claims were negated. Additionally, this
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Court finds that essential elements of CRST’s summary judgment motion were
proven through the Statement of Undisputed Facts, and essential elements of
the plaintiff’s claims were also negated by and through those same undisputed
material facts. As there was no opposition to those undisputed facts and
essential elements filed by the plaintiff pursuant to Rule 56.03 of the
Tennessee Rules of Civil Procedure, summary judgment was proper and
appropriate on all issues raised by CRST. Because the doctrine of res judicata
applies and all issues and claims are resolved in this cause in favor of CRST,
all matters in controversy are fully and finally adjudicated pursuant to this
Order. The Plaintiff is hereby ordered to pay CRST the full amount consistent
with the Iowa judgment entered on October 13, 2009 in the amount of
$4,818.39 with an interest rate of eighteen percent (18%) from October 13,
2009. The certified copy of this judgment from the Iowa District Court in and
for Linn County, Iowa, filed in this Court on May 6, 2010, is adopted and
incorporated herein by reference.
It is further ORDERED that in the alternative this Court finds that
CRST is entitled to a judgment as a matter of law pursuant to the Uniform
Enforcement of Judgments Act as CRST has met all requirements to enforce
and domesticate the foreign Iowa judgment at issue and as described above.
Crain appeals. We affirm.
Discussion
Crain raises several issues on appeal which we restate as: 1) whether the Trial
Court erred in granting CRST’s Motion for Summary Judgment relying on the doctrine of
res judicata; and 2) whether the Trial Court erred in holding, in the alternative, that CRST
was entitled to judgment as a matter of law pursuant to the Uniform Enforcement of Foreign
Judgments Act.
Our Supreme Court reiterated the standard of review in summary judgment
cases as follows:
The scope of review of a grant of summary judgment is well
established. Because our inquiry involves a question of law, no presumption
of correctness attaches to the judgment, and our task is to review the record to
determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).
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A summary judgment may be granted only when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
1993). The party seeking the summary judgment has the ultimate burden of
persuasion "that there are no disputed, material facts creating a genuine issue
for trial . . . and that he is entitled to judgment as a matter of law." Id. at 215.
If that motion is properly supported, the burden to establish a genuine issue of
material fact shifts to the non-moving party. In order to shift the burden, the
movant must either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party cannot establish
an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 8-9 (Tenn. 2008). "[C]onclusory assertion[s]" are not sufficient
to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
apply the federal standard for summary judgment. The standard established
in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
sets out, in the words of one authority, "a reasonable, predictable summary
judgment jurisprudence for our state." Judy M. Cornett, The Legacy of Byrd
v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
175, 220 (2001).
Courts must view the evidence and all reasonable inferences therefrom
in the light most favorable to the non-moving party. Robinson v. Omer, 952
S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
only when the facts and the reasonable inferences from those facts would
permit a reasonable person to reach only one conclusion. Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).
Crain contends that CRST’s filing suit in Iowa was contrary to Rule 13.01 of
the Tennessee Rules of Civil Procedure and that CRST should have been enjoined from
pursuing its lawsuit against Crain in any other court. Rule 13.01 of the Tennessee Rules of
Civil Procedure provides:
A pleading shall state as a counterclaim any claim, other than a tort
claim, which at the time of serving the pleading the pleader has against any
opposing party, if it arises out of the transaction or occurrence that is the
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subject matter of the opposing party's claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire
jurisdiction, except that a claim need not be stated as a counterclaim if at the
time the action was commenced the claim was the subject of another pending
action. This rule shall not be construed as requiring a counterclaim to be filed
in any court whose jurisdiction is limited either as to subject matter or as to
monetary amount so as to be unable to entertain such counterclaim.
Tenn. R. Civ. P. 13.01. Thus, if a party fails to file a counterclaim, other than those excluded
by the Rule itself, in response to a pleading in accordance with Rule 13.01 and the
controversy results in a final judgment, then that party would be precluded from filing suit
on that claim. Nothing in Rule 13.01, however, prohibits the filing in a separate lawsuit of
what would be a compulsory counterclaim if that party is willing to run the risk that it may
well lose the right to pursue its claim in the separate lawsuit if the initial suit results in a final
judgment first.1 In any event, CRST did file a counterclaim in the Trial Court in response
to Crain’s complaint. Therefore, in no respect did CRST violate Rule 13.01, and the Trial
Court did not err in denying Crain’s application for an injunction.
Crain disputes CRST’s argument that res judicata should form a basis for
summary judgment in this case. In Lien v. Couch, 993 S.W.2d 53 (Tenn. Ct. App. 1998), this
Court discussed various aspects of the doctrine of res judicata. We stated:
Res judicata is a claim preclusion doctrine that promotes finality in
litigation. See Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976);
Jordan v. Johns, 168 Tenn. 525, 536-37, 79 S.W.2d 798, 802 (1935). It bars
a second suit between the same parties or their privies on the same cause of
action with respect to all the issues which were or could have been litigated in
the former suit. See Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d
446, 459 (Tenn. 1995); Collins v. Greene County Bank, 916 S.W.2d 941, 945
(Tenn. Ct. App. 1995).
Parties asserting a res judicata defense must demonstrate that (1) a court
of competent jurisdiction rendered the prior judgment, (2) the prior judgment
was final and on the merits, (3) the same parties or their privies were involved
in both proceedings, and (4) both proceedings involved the same cause of
action. See Lee v. Hall, 790 S.W.2d 293, 294 (Tenn. Ct. App. 1990). A prior
judgment or decree does not prohibit the later consideration of rights that had
1
The issues before us and as presented to the Trial Court do not involve the doctrine of prior suit
pending.
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not accrued at the time of the earlier proceeding or the reexamination of the
same question between the same parties when the facts have changed or new
facts have occurred that have altered the parties' legal rights and relations. See
White v. White, 876 S.W.2d 837, 839-40 (Tenn. 1994).
The principle of claim preclusion prevents parties from splitting their
cause of action and requires parties to raise in a single lawsuit all the grounds
for recovery arising from a single transaction or series of transactions that can
be brought together. See Bio-Technology Gen. Corp. v. Genentech, Inc., 80
F.3d 1553, 1563 (Fed. Cir. 1996); Hawkins v. Dawn, 208 Tenn. 544, 548, 347
S.W.2d 480, 481-82 (1961); Vance v. Lancaster, 4 Tenn. (3 Hayw.) 130, 132
(1816). The principle is subject to certain limitations, one of which is that it
will not be applied if the initial forum did not have the power to award the full
measure of relief sought in the later litigation. See Davidson v. Capuano, 792
F.2d 275, 279 (2d Cir. 1986); Carris v. John R. Thomas & Assocs., P.C., 896
P.2d 522, 529-30 (Okla. 1995); see also Rose v. Stalcup, 731 S.W.2d 541, 542
(Tenn. Ct. App. 1987) (holding that a subsequent action was not barred
because the initial court did not have jurisdiction over the claim). Thus, the
Restatement of Judgments points out:
The general rule [against relitigation of a claim] is largely
predicated on the assumption that the jurisdiction in which the
first judgment was rendered was one which put no formal
barriers in the way of a litigant's presenting to a court in one
action the entire claim including any theories of recovery or
demands for relief that might have been available to him under
applicable law. When such formal barriers in fact existed and
were operative against a plaintiff in the first action, it is unfair
to preclude him from a second action in which he can present
those phases of the claim which he was disabled from presenting
in the first.
Restatement (Second) of Judgments § 26(1)(c) cmt. c (1982).…
Lien v. Couch, 993 S.W.2d at 55-56.
All four elements of res judicata are present here: (1) a court of competent
jurisdiction, i.e., the Iowa District Court, rendered the prior judgment, (2) the prior judgment
rendered by the Iowa District Court was final and on the merits, (3) the same parties are
involved both in this case and the Iowa case, and (4) these proceedings and the Iowa case
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involve the same underlying cause of action, that being a dispute over these parties’
contractual rights and obligations.
Crain also argues that the Trial Court should have examined the record to
ensure that CRST’s Statement of Undisputed Material Facts was based on competent
evidence. Crain, however, had an opportunity to respond to CRST’s Statement of
Undisputed Material Facts and failed to do so. We previously have discussed Rule 56.03 of
the Tennessee Rules of Civil Procedure, its requirements, and the consequences of failing to
adhere to the rule:
Courts consistently have emphasized that a party opposing a motion for
summary judgment may not simply rest on its pleadings, but must affirmatively
oppose the motion. See, e.g., Staples, 15 S.W.3d at 89; McCarley, 960 S.W.2d
at 588. Such opposition may be made by pointing to the evidence in the record
which indicates disputed material facts. McCarley, 960 S.W.2d at 588. Rule
56.03 requires that a party opposing a motion for summary judgment must
serve and file a response to the motion.
The statements of material facts submitted by the parties on a motion
for summary judgment are “intended to alert the court to precisely what factual
questions are in dispute and point the court to specific evidence in the record
that supports a party's position on each of these questions. They are, in short,
roadmaps, and without them the court should not have to proceed further,
regardless of how readily it might be able to distill the relevant information
from the record on its own.” Owens v. Bristol Motor Speedway, Inc., 77
S.W.3d 771, 774 (Tenn. Ct. App. 2001)(perm app. denied)(quoting with
approval, Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir.
1994)). Although the trial court may, at its discretion, waive the requirements
of the rule where appropriate, the court may also refuse to consider the factual
contentions of a non-complying party even where such facts are ascertainable
by the record. Id. Thus the material facts set forth in the statement of the
moving party may be deemed admitted in the absence of a statement
controverting them by the opposing party. See R OBERT B ANKS, JR. & J UNE F.
E NTMAN, T ENNESSEE C IVIL P ROCEDURE, § 9–4(i)(1999)(quoting Midwest
Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 n. 1 (7th Cir. 1995)). Accordingly,
failure to file a response in opposition to a motion for summary judgment
generally will prove fatal in the trial court and upon appeal. See Mark VII
Transp. Co. v. Belasco, No. W2002–00450–COA–R3–CV, 2002 WL
31895714, at * 4–5 (Tenn. Ct. App. Dec. 30, 2002) ( no perm. app. filed).
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Holland v. City of Memphis, 125 S.W.3d 425, 428-29 (Tenn. Ct. App. 2003).
In this case, CRST made a properly supported motion for summary judgment
demonstrating that the matter at issue already had been adjudicated. Despite the mandatory
language of Rule 56.03, Crain did not file a response to CRST’s Statement of Undisputed
Material Facts. Crain instead filed a Motion to Strike, maintaining that the copy of the Iowa
judgment filed by CRST, with respect to both CRST’s Motion to Domesticate and Enforce
Foreign Judgment and Motion for Summary Judgment, was not properly certified. However,
any defect in the entry of the Iowa judgment into the record was cured, as found by the Trial
Court, by CRST in its response to Crain’s Motion to Strike, wherein CRST filed a properly
certified copy of the Iowa judgment. Moreover, Crain missed his chance to dispute CRST’s
Statement of Undisputed Material Facts by failing to respond to it as required by and
pursuant to Rule 56.03. It is not the duty of the Trial Court to sift through the record and
perform the non-moving party’s job. The Trial Court was entitled to deem CRST’s
Statement of Undisputed Material Facts as being admitted by Crain.
Upon reviewing the record, including CRST’s Statement of Undisputed
Material Facts, we agree with the Trial Court that the doctrine of res judicata applies to this
case. The undisputed facts demonstrate that this matter was disposed of in the Iowa District
Court. All four elements of res judicata are satisfied as we already have discussed. Based
on the doctrine of res judicata and CRST’s Statement of Undisputed Material Facts, we
affirm the Trial Court’s grant of summary judgment.
We now address whether the Trial Court erred in holding, in the alternative,
that CRST was entitled to judgment as a matter of law pursuant to the Uniform Enforcement
of Foreign Judgments Act. The domestication of a foreign judgment can be achieved
through a motion for summary judgment. We have discussed the domestication of foreign
judgments in the context of summary judgment:
The Uniform Enforcement of Foreign Judgments Act does not foreclose
the use of summary judgments, and we have been cited to no other statute or
court rule prohibiting their use in cases such as this one. Therefore, we find
that persons seeking to domesticate a foreign judgment may do so using a
summary judgment as long as they satisfy the trial court, as required by
Tenn.R.Civ.P. 56.03, that there are no disputes as to any material fact and that
they are entitled to a judgment as a matter of law.
Biogen Distribs., Inc. v. Tanner, 842 S.W.2d 253, 255 (Tenn. Ct. App. 1992). CRST sought
to domesticate a foreign judgment using a motion for summary judgment. As Crain never
filed a response to CRST’s Statement of Undisputed Material Facts, the Trial Court was
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satisfied as to the lack of dispute of any material fact, and so are we.
Crain argues that the Iowa judgment runs contrary to Tennessee public policy,
and, therefore, it should not be enforced. We have discussed the enforcement of judgments
from sister states:
Foreign judgments are entitled to full faith and credit. U.S. Const. art.
IV, § 1. Once a foreign judgment has been enrolled, it has the same effect and
is subject to the same procedures, defenses, and proceedings for reopening,
vacating, or staying as a judgment of a court of record in Tennessee and may
be enforced or satisfied in a like manner. T.C.A. § 26–6–104(c). Therefore, the
grounds and procedures for vacating or reopening foreign judgments are those
contained in Rule 60.02 T.R.C.P. Biogen Distribs., Inc. v. Tanner, 842 S.W.2d
253, 256 (Tenn. App. 1992). Parties seeking 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. 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. App.
1983).
Coastcom, Inc. v. Cruzen, 981 S.W.2d 179, 181 (Tenn. Ct. App. 1998). Nevertheless,
“Tennessee courts are not obligated to give full faith and credit to any judgment of a state
which we hold to be violative of Tennessee’s public policy or the Federal Constitution.”
Aqua Sun Invs., Inc. v. Henson, 1993 WL 382230, *2 (Tenn. Ct. App. Sept. 30, 1993), no
appl. perm. appeal filed.
Crain contends that “[T]he Iowa Judgment, treated as a judgment of a court of
record in this state, is clearly a nullity as being filed and prosecuted in defiance of Rule
13.01, Tenn. R. Civ. P.” However, as we have already discussed, CRST’s filing suit in Iowa
District Court did not violate Rule 13.01. As CRST did not violate Rule 13.01 in any
manner, Crain has fallen far short of meeting the stern and heavy burden required to
demonstrate that the Iowa judgment should not be enforced in Tennessee. We, therefore,
affirm the Trial Court’s holding in the alternative that CRST was entitled to judgment as a
matter of law pursuant to the Uniform Enforcement of Foreign Judgments Act.
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Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, James Eric Crain, and his surety.
_________________________________
D. MICHAEL SWINEY, JUDGE
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