text:
    Larry PRIDGEON, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64728.
    Missouri Court of Appeals, Western District.
    June 28, 2005.
    Susan Lynn Hogan, Appellate Defender Office, Kansas City for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Robert L. Ortbals, Jr., Office of Attorney General, Jefferson City for Respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge, and VICTOR C. HOWARD, Judge.
   ORDER

Larry Pridgeon appeals the circuit court’s judgment denying his motion to vacate judgment and sentence without an evidentiary hearing pursuant to Rule 24.035. We affirm. Rule 84.16(b).


source: Caselaw Access Project

author: HERSCHEL PICKENS FRANKS, P.J.,

license: Public Domain

text:
    Kanta KEITH, Darlene Keith, Walter Jackson, and Thomas A. Snapp, Personal Representative of the Estate of Darlene Keith v. Gene Ervin HOWERTON and Easy Money, Inc.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    June 2004 Session.
    Oct. 28, 2004.
    Application for Permission to Appeal Denied by Supreme Court May 31, 2005.

      Donald K. Vowell and Elizabeth K. Johnson, Knoxville, Tennessee, for Appellants.
    Craig L. Garrett, Maryville, Tennessee, for Appellees.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which D. MICHAEL SWINEY, J., and HOWELL N. PEOPLES, Sp.J., joined.

The Trial Court awarded plaintiffs’ attorneys fees pursuant to the Consumer Protection Act. On appeal we modify by increasing the award of fees.

The issue before us is whether the Trial Court abused its discretion in its award of attorney fees to the plaintiffs. The plaintiffs had prevailed in a Consumer Protection Act claim.

Pertinent to this issue is the history of this case. This is the third appeal of the case which began in 1998 alleging a violation of the Consumer Protection Act. Upon the second remand, the Trial Court awarded plaintiffs $4,500.00 in attorney fees which equates to an hourly rate of $15.00. Plaintiffs’ counsel argues that he expended 298.8 hours in litigation of this case from inception through two appeals, and that he should have an hourly rate of $125.00 to $150.00 an hour for his professional time. He also submitted testimony by affidavit from four attorneys who opined that the amount of requested fees was reasonable and appropriate for services performed. The defendants presented no countervailing proof on this issue.

Plaintiffs’ Alleged violation of the Truth and Lending Act, the Tennessee Pawn Brokers’ Act, and the Tennessee Consumer Act. Upon trial, the Trial Court found that defendants’ actions violated the Pawnbrokers’ Act, but did not violate the Consumer Protection Act, and Judgments were entered for $2,250.00 for the Keiths, and $1,100.00 for Jackson.

On appeal, this Court affirmed the lower Court as to the value of the property, but reversed the Trial Court and held that there was a violation of the Consumer Protection Act, in that the defendants’ deception was knowing and willful. Tenn. Code Ann. § 47-18-109(a). The Court remanded the case for determination of whether plaintiffs were entitled to treble damages and attorneys’ fees, pursuant to the Consumer Protection Act. On remand, the Trial Court declined to award treble damages, but did augment the Judgment for the Keiths by $444.00 and by $650.00 to the plaintiff Jackson. Judgments were entered for $2,010.20 and $1,750.00 respectively.

The Trial Court awarded fees of $2,000.00 plus discretionary costs of $340.00.

Plaintiffs appealed the award of attorney fees as unreasonably low, as well as the failure to award treble damages. This Court held that the statute does not mandate an award of treble damages upon a finding of willful or knowing violation and that the record supported the denial of treble damages because defendants’ deception was not egregious, and we concluded the Trial Court did not abuse its discretion by augmenting but not trebling plaintiffs’ damages. Keith v. Howerton, 2002 WL 31840683 at *3 (Tenn.Ct.App.2002).

With respect to the attorneys’ fees, we held that the Trial Court had erred on remand by improperly basing its determination almost exclusively on the proportionality of the Judgment to the amount of fees requested. We explicitly held that plaintiffs were successful in the case in chief and on both appeals, and remanded to the Trial Court again for a proper determination of attorneys’ fees, to be guided by consideration of the factors listed in DR 2-106(b) and relevant case law. Id.

At the hearing on the second remand the Trial Court found that the requested fees were “excessive, exorbitant and not justified by the case in any way”, and ordered a total attorneys’ fee award of $4,500.00, and this appeal followed.

The general breakdown of plaintiffs’ counsel’s fees requested is as follows:

Appellate decisions become the law of the case that is binding on the parties and the Trial Court on remand. State ex rel. Sizemore v. United Physicians Ins. Risk Retention Group, 56 S.W.3d 557, 566 (Tenn.Ct.App.2001).

Attorneys are obligated to exercise the utmost good faith in performing their duties in their representation of their clients, and in so doing are “entitled to the reasonable, agreed-upon compensation without regard to the actual benefit the services might have been to the client.’’ Fell v. Rambo, 36 S.W.3d 837, 852 (Tenn.Ct.App.2000) (emphasis added). The “determination of reasonable attorneys’ fees and costs is necessarily a discretionary inquiry” by the Trial Court, to which the appellate courts will defer, absent an abuse of discretion. Killingsworth v. Ted Russell Ford, 104 S.W.3d 530, 534 (Tenn.Ct.App.2002). A Court abuses its discretion when it “either applie[s] an incorrect legal standard or reache[s] a clearly unreasonable decision, thereby causing an injustice to the aggrieved party.” Kline v. Eyrich, 69 S.W.3d 197, 204, 209 (Tenn.2002).

The Tennessee Supreme Court has directed that when deciding attorney fees the trial courts should consider the guidelines as delineated in Connors v. Connors, 594 S.W.2d 672, 677 (Tenn.1980), and also to the factors listed in S.Ct. Rule 8, D.R. 2-106. The Connors guidelines are: the time devoted to performing the legal service; the time limitations imposed by the circumstances; the novelty and difficulty of the questions involved; the skill requisite to perform the legal service properly; the fee customarily charged in the locality for similar services; the amount involved and the results obtained; the experience, reputation, and ability of the lawyer performing the legal service. Connors, 594 S.W.2d at 676.

The Tennessee Code of Professional Responsibility D.R. 2-106(B) lists similar criteria, though not identical to the Connors guidelines:

(B) ... Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.

Ultimately, the reasonableness of an attorney’s fee will depend upon the particular circumstances of the individual case, as considered in light of the relevant guidelines. White v. McBride, 937 S.W.2d 796, 800 (Tenn.1996). “A fee is excessive if ‘after review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee’ ”. Fell, 36 S.W.3d at 852, quoting Tenn. S.Ct. R. 8, DR 2-106(B); In re Davis’s Estate, 719 S.W.2d 526, 528 (Tenn.Ct.App.1986).

The genesis of the reported state and federal case law regarding shifting attorneys’ fees arises from the Civil Rights Attorney’s Fees Awards Act of 1976 and 1988, 42 U.S.C. § 1988(b) (1994). A party is considered “prevailing” for purposes of the civil rights statutes upon proving any constitutional violation, even one entitling the party to only nominal damages or minimal relief. See, Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). Tennessee courts have consistently held that the policy rationale underpinning the civil rights statutes’ fee shifting provisions are likewise applicable to cases arising under the Consumer Protection Act. See Adkinson v. Harpeth Ford-Mercury, Inc., 1991 WL 17177 (Tenn.Ct.App.1991); Keith v. Howerton, 2002 WL 31840683 at *3 (Tenn.Ct.App.2002).

When a plaintiff prevails in either a civil rights or consumer protection claim, his counsel will ordinarily be entitled to full compensation for time and effort expended in the representation. Hensley v. Eckerkart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

The Hensley Court opined that no “precise formula” exists for determining a reasonable fee, but it also specifically rejected a “mathematical approach” that simply compares the number of issues on which the plaintiff prevailed to the total number of issues overall in dispute. Hensley, 461 U.S. at 435 n. 11, 103 S.Ct. 1933. Also, if only a partial or limited success is achieved, a fee determined by the calculation of hours multiplied by an hourly rate could be excessive. Id. at 434-436, 103 S.Ct. 1933.

While the Trial Court in this case advanced several reasons for the award of attorneys’ fees, it is clear that a proportionality rationale governed the Trial Court’s arriving at the amount of fee.

The seminal case on the proportionality issue is City of Riverside v. Rivera, 477 U.S. 561, 576-578,106 S.Ct. 2686, 2695-96, 91 L.Ed.2d 466 (1986). In Riverside, the prevailing plaintiffs recovered a judgment of $33,350.00. The Supreme Court affirmed the district court’s award of the full amount of attorney’s fees of $245,000.00 despite the enormous disparity:

A rule that limits attorney’s fees in civil rights cases to a proportion of the damages awarded would seriously undermine Congress’ purpose in enacting § 1988 ... because ... the private market for legal services fail[s] to provide many victims of civil rights violations with effective access to the judicial process. ... These victims ordinarily cannot afford to purchase legal services at the rates set by the private market..
Moreover, the contingent fee arrangements that make legal services available to many victims of personal injuries would often not encourage lawyers to accept civil rights cases, which frequently involve substantial expenditures of time and effort but produce only small monetary recoveries.
A rule of proportionality would make it difficult, if not impossible for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts.... Congress recognized that private-sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case, (emphases added).

Applying Riverside, the Sixth Circuit held that it is appropriate to examine the relationship between the degree of success and the amount of a fee requested, concluding that fee awards should not be reduced by the ratio of successful claims to the total claims advanced. Phelan v. Bell, 8 F.3d 369, 373 (Sixth Cir.1993). Accord: Blaylock v. Johns Hopkins Federal Credit Union, 152 Md.App. 338, 831 A.2d 1120 (2003); Jordan v. Transnational Motors, Inc., 212 Mich.App. 94, 537 N.W.2d 471, 474 (1995); Bittner v. Tri-County Toyota, Inc., 58 Ohio St.3d 143, 569 N.E.2d 464 (1991).

In the second appeal of this case, Judge Susano’s Opinion firmly embraces the rationale in Riverside, unequivocally rejecting the proportionality reasoning relied upon by the Trial Court in this case:

In determining the amount of fees and expenses to award, the issue is not how the fees requested compare to the amounts eventually awarded to the plaintiffs; rather, the issue is how the requested fees and expense measure up under DR 2-106 and the applicable case law. Relying on the language of the United States Supreme Court, we have observed that the purpose behind the allowance of attorney’s fees in the Act is to encourage attorneys to take these sorts of cases where the recovery may be small and the amount of time expended may be great.
In an attempt to discourage these practices and to insure that such practices are rectified when they do exist, the General Assembly sought to encourage legal representation of injured parties, regardless of the amounts of their claims. This objective would be thwarted, especially with respect to small claims if the proportionality approach were to be adopted. We hold that such an approach is contrary to the public policy embodied in the Act.

Keith v. Howerton, 2002 WL 31840683 *7.

The factors weighing in defendants’ favor under the Tennessee Code of Professional Responsibility, D.R. 2-106(B) include the amount involved and the results obtained and somewhat unique to this case was the number of hours expended by plaintiffs’ counsel to obtain reasonable attorneys’ fees.

Plaintiffs’ counsel provided time records and affidavits of expert opinion, and it is fair to conclude that these experts would have considered the Trial Court’s fee award unreasonable. Moreover, defendants introduced no countervailing evidence to show the requested fees were unreasonable.

The Tennessee Consumer Protection Act is to be liberally construed to protect consumers and others from those engaged in deceptive acts or practices. Morris v. Mack’s Used Cars, 824 S.W.2d 538 (Tenn.1992); Ganzevoort v. Russell, 949 S.W.2d 293, 297 (Tenn.1997). As Judge Susano noted in the prior appeal, and the City of Riverside makes clear, the rule of proportionality would make it difficult, if not impossible, for individuals with meritorious claims but relatively small potential of damages to obtain redress from the courts without the attorneys for such parties to be reasonably compensated for their legal services in obtaining the relief sought.

We have carefully reviewed the evidence presented in this case and applying case law and the factors set forth in the Tennessee Code of Professional Responsibility, D.R. 2-106(B), we conclude that plaintiffs’ counsel is entitled to a reasonable fee in the amount of $18,000.00 together with costs.

For the foregoing reasons, we modify the award of attorneys’ fees made by the Trial Judge and remand with the cost of the appeal assessed to the defendants.

      . This Judgment was reduced by our Court on the first appeal to $1,566.80.

      . Tennessee had not adopted the Model Code at the time this appeal was decided.


author: DAVID R. FARMER, J.,

text:
    Shari Parker MORROW, et al. v. Fay A. JONES.
    Court of Appeals of Tennessee, at Jackson.
    April 19, 2004 Session.
    Sept. 23, 2004.
    Application for Permission to Appeal Denied by Supreme Court Feb. 28, 2005.

      Margaret Barr-Myers and Susan L. Ratner, Memphis, Tennessee, and Norris A. Kessler, II, Winchester, Tennessee, for the Appellant, Shari Parker Morrow.
    Patricia A. Odell, Memphis, Tennessee, for the Appellee, Estate of Fay A. Jones.

      . This Court heard oral argument of this appeal on April 19, 2004. During the course of oral argument, counsel for the Appellee/De-fendant informed the Court and counsel for the Appellant/Plaintiff that Appellee in this cause had died during the pendency of this appeal. Counsel for Appellee did not inform either this Court or Appellant of Appellee's death prior to her statement at oral argument. In accordance with Tennessee Rules of Appellate Procedure 19(a), this Court ordered Appellant Morrow to move for substitution of a proper party.
      On May 14, 2004, Appellant Morrow, through counsel, moved this Court for an order of substitution of party. The motion stated that counsel had searched the probate records for Shelby County, Tennessee, and discovered there was no record of an estate in the name of the Appellee, Fay A. Jones, deceased. The motion stated that Movant would attempt to open an estate and asked that this matter be held in abeyance. By order of June 15, 2004, this Court ordered that the matter be held in abeyance pending substitution for Fay A. Jones, deceased. This Court ordered counsel for Appellant to provide this Court with a status report within fifteen days from the date of filing of the order.
      On July 2, 2004, Appellant Morrow filed a status report stating that a petition to open estate was filed in the Shelby County Probate Court on June 3, 2004. It was further reported that counsel for the Appellee stated that she would attempt to locate a family member of the deceased who would be willing to serve as an administrator of the deceased’s estate.
      On August 2, 2004, Appellant Morrow filed a Notice of Appointment of Administrator Ad Litem and attached a copy of an order entered in the probate court of Shelby County appointing Clary Lunsford, an attorney, as administrator ad litem of the estate of Fay A. Jones, deceased. The order further provided that said administrator ad litem is to serve in the place and stead of the Defendant/Appellee Fay A. Jones, deceased.
      This Court granted the motion for substitution of party on August 19, 2004, and the said Clary Lunsford, administrator ad litem, has been substituted in the place and stead of Fay A. Jones, deceased, the Appellee in this matter.

   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J., and HOLLY M. KIRBY, J., joined.

Plaintiff/Buyer brought a cause of action alleging breach of a real estate contract and seeking specific performance. The trial court entered judgment for Defendant/Seller. We affirm in part, modify in part, and remand.

Plaintiffs/buyers Shari Parker Morrow (Ms. Morrow) and Louie Morrow (Mr. Morrow, collectively, “the Morrows”) commenced this cause of action on September 24, 1998, alleging breach of contract for the sale of real estate. They prayed for specific performance of the contract and for an order enjoining proceedings under a forcible entry and detainer action which had been brought against them by Defendant/seller Fay A. Jones (Ms. Jones). In their complaint, the Morrows allege that in July 1998, they and Defendant/seller Fay A. Jones (Ms. Jones) executed a contract for the sale of real estate in Shelby County. They further allege the agreed upon sales price was $110,000, that they paid $500 earnest money, and that the contract required Ms. Jones to make several repairs; to carry a second mortgage of $11,000 amortized for 360 months at 8% with a balloon note in 36 months; to pay up to 5% of the sales price toward the Morrows’ closing costs; and to give the Morrows a $2,000 decorating allowance.

The Morrows’ complaint further alleges that following an inspection of the property, the parties agreed that the Morrows would make and pay for all repairs required by the appraisal of the property, and that Ms. Jones would reimburse them for these costs at closing. They further submit that in reliance on this agreement, they incurred the expense of the required repairs. The Morrows additionally contend that on or about August 6, 1998, Ms. Jones delivered the property to them; that a closing date was set for September 4, 1998; and that on or about September 1, 1998, their lender transmitted an authorization to close to the closing agent, authorizing Morrows’ loan of $89,600. The Morrows assert they appeared for the closing date on September 4, 1998, with the $10,500 cashier’s check needed to close the loan. They allege Ms. Jones breached the contract by refusing to complete the closing or to reimburse the Morrows for the repairs they made to the property.

Ms. Jones filed her amended answer, counter-complaint, and third-party complaint on June 24, 1999. In her amended answer, Ms. Jones contends the contract called for a sale price of $112,000. She further submits that the original closing date was July 31, but that the closing was not held because the Morrows were unable to obtain the necessary financing. Further, she contends the Morrows were unable to close on subsequent closing dates scheduled for August 3 and August 24, 1998. She asserts that she had agreed to carry a second mortgage of $5,600, that the Morrows were required to bring $22,893 to the closing, and that the Morrows brought only $10,500 to the September closing.

In her amended answer, Ms. Jones also contends the Morrows and their real estate agent fraudulently told her that they had obtained financing, and that in reliance on their statements she agreed to allow the Morrows to store boxes in the detached pool house until closing. Ms. Jones asserts she did not consent to the Morrows moving into the main house. She alleges that cross-defendant Hurley Lawrence, the Morrows’ real estate agent, permitted the Morrows to move into the main house without her consent. She further asserts the Morrows made unauthorized alterations to the property. Ms. Jones counter-complained against the Morrows and crossed-claimed against the mortgage broker and the real estate company that had represented the Morrows.

In October 1998, the trial court issued a temporary restraining order enjoining the forcible entry and detainer action until a trial could be heard in the cause. The trial court further ordered the Morrows to pay rent to Ms. Jones of $850 per month until resolution of the matter. The order provided rental payments would be applied to the money due, if any, by the Morrows to Ms. Jones.

After a three year dispute, including much ado over payment of rent by the Morrows, payment of the mortgage on the property by Ms. Jones, and several contempt hearings, a trial was conducted on April 17, 2001. The trial court found the Morrows were entitled to $8,595 in credits for repairs to the property, but that minus the cash brought to the closing and the credits they were still $798 short at closing. The trial court further found that Ms. Jones had suffered an economic hardship because the Morrows failed to bring sufficient funds to the closing, because they remained in the house while pursuing specific performance, and because of their late and missed rental payments. The trial court also found that the Morrows came to the closing unprepared to close, and that no agreement was made to continue the closing to another day. Additionally, the trial court found that Ms. Jones had given the Morrows access to the pool house before closing, that the Morrows had moved into the main house, and that the Morrows had refused to vacate the property upon the request of Ms. Jones.

The trial court determined the Morrows were not entitled to specific performance. It awarded Ms. Jones a judgment for damages in the amount of $22,619.87. After applying credits due to the Morrows, the trial court found the Morrows owed Ms. Jones $14,024,87. The trial court also awarded Ms. Jones attorney’s fees in the amount of $10,000 and ordered additional attorney’s fees of $7,192.24 to be paid from the $11,669.01 on deposit with the court. The court dismissed Ms. Jones’ cross-complaints, awarding compensatory damages to cross-defendant Lawrence. Ms. Morrow filed a timely notice of appeal on May 3, 2002.

Issues Presented.

Ms. Morrow presents the following issues, as we slightly re-state them, for review by this Court:

(1) Whether the tidal court erred by failing to grant Ms. Morrow specific performance of the real estate sales contract.
(2) Whether the trial court erred by failing to find Ms. Morrow had substantially performed under the terms of the contract.
(3) Whether the trial court erred by awarding consequential damages to Ms. Jones.
(4) Whether the trial court erred by failing to award Ms. Morrow equitable relief under theories of unjust enrichment and equitable estoppél.
(5) Whether the trial court erred by failing to afford Ms. Morrow a full and fair hearing and conducting a proceeding so flawed it constituted an abuse of discretion.

Standard of Review

Our standard of review of the issues of fact of a trial court sitting without a jury is de novo upon the record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). There is a presumption of correctness as to the trial court’s findings of fact, unless the preponderance of evidence is otherwise. Tenn. R.App. P. 13(d). Thus, we may not reverse the.trial court’s factual findings unless they are contrary to the preponderance of the evidence. We review the trial court’s conclusions on matters of law de novo, with no presumption of correctness. Tenn. R.App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000).

Analysis

We begin our analysis by noting that a decision to award equitable relief lies within the discretion of the trial court, and will not be overturned on appeal absent an abuse of that discretion. Early v. Street, 192 Tenn. 463, 241 S.W.2d 531, 536 (1951). Although specific performance is often regarded as an appropriate remedy for the breach of a contract for the conveyance of real property, the appropriateness of the remedy is dependent on the particular facts of each case. McGaugh v. Galbreath, 996 S.W.2d 186, 191 (Tenn.Ct.App.1998).

[T]o support such relief the contract must be clear, complete and definite in all its essential terms. The Court will not make a contract for the parties and the agreement sought to be enforced specifically must show beyond doubt that the minds of the parties actually met and that they themselves made the agreement.

Id. (quoting Parsons v. Hall, 184 Tenn. 363, 199 S.W.2d 99, 100 (1947) (citing Gibson’s Suits in Ch., 1937 Ed., § 949)).

In this case, it is not disputed that the closing date for sale of this property was postponed more than once because the Morrows were unable to obtain financing. Additionally, Ms. Morrow does not argue that she came to the September 1998 closing prepared to tender the full purchase price for the property. Although Ms. Morrow argues in her brief that she “fulfilled the terms of the contract,” she also submits, “the remainder [of the purchase price] would [have been] available with only a small amount of additional time that would not have caused injury to the defendant.” The evidence does not preponderate against the trial court’s finding that, even after application of credits due Ms. Morrow, she was nearly $800 short of the purchase price. Thus, even after considering Ms. Morrow’s argument that she had “substantially performed” the contract, and assuming, arguendo, that substantial performance would entitle the buyer to specific performance of a contract for the sale of real property, we cannot say the trial court abused its discretion by refusing to award Ms. Morrow the equitable remedy of specific performance.

We next turn to Ms. Morrow’s argument that the trial court erred in its award of damages to Ms. Jones, and that this error resulted in unjust enrichment. The trial court found “[a]n economic hardship was caused toward Ms. Jones because the Morrows failed to produce sufficient funds for the closing, and the Morrows remained in the house while pursuing specific performance.” The trial court further found that Ms. Jones’ first mortgage, including late fees, attorney’s fees, and reinstatement fees, was $20,561.11 in arrears, and that her second mortgage, including fees, was $2,058.76 in arrears. The court found the Morrows should pay Ms. Jones these amounts.

Ms. Morrow submits that the trial court’s award was an improper award of consequential damages. She cites Turner v. Benson, 672 S.W.2d 752 (Tenn.1984), for the proposition that special damages are recoverable in a breach of contract action only where they were in the reasonable contemplation of the parties when the contract was executed. She argues, in essence, that Ms. Jones was liable for the mortgage payments regardless of the breach by the Morrows, and that the Morrows breach did not cause the damages. She further argues that, although the Morrows were at times late in making the court-ordered rental payments, and although the Morrows did not pay seven of a total of 80 monthly rental payments, they should not be responsible for Ms. Jones’ failure to pay the mortgages as due.

Generally, the courts may award all damages which are the normal and foreseeable results of a breach of contract. See, e.g., Wills Elec. Co. v. Mirsaidi No. M2000-02477-COA-CV-R3, 2001 WL 1589119, at *4 (Tenn.Ct.App. Dec.13, 2001)(no perm. app. filed)(citing Moore Construction Co. v. Clarksville Dept. of Electricity, 707 S.W.2d 1 (Tenn.Ct.App.1985); Bush v. Cathey, 598 S.W.2d 777 (Tenn.Ct.App.1979); Wilson v. Dealy, 222 Tenn. 196, 434 S.W.2d 835 (1968)). Such damages include reasonably foreseeable incidental and consequential damages. Id.

This case presents a unique set of facts. In their complaint, the Morrows sought two equitable remedies. They sought specific performance of the contract to purchase real property and an injunction against a forcible entry and detainer action brought by Ms. Jones. The trial court granted the injunction, ordering the Morrows to pay rent of $850 a month to Ms. Jones pending resolution of the action. In essence, the court created a second contractual relationship between the parties, that of landlord-tenant. However, the court also granted the Morrows’ prayer for an injunction, thereby prohibiting Ms. Jones from exercising the right to remove a tenant who fails to pay their rent. Further, the Morrows failed to pay the rent in a timely fashion and, accordingly, were found by the trial court to be in contempt. At the time of trial, the Morrows had failed to pay at least 7 months rent.

Ultimately, after a prolonged dispute of three years, the trial court determined that the Morrows had moved into Ms. Jones home without her consent, that they had breached the contract to purchase, and that they were not entitled to specific performance. Thus, for three years, Ms. Jones was under court order to permit the Morrows to occupy her property; was, therefore, unable to seek another buyer; and remained liable for the mortgages on the property. In the meantime, the Morrows did not abide by the court’s order with respect to rental payments, despite the fact that it was their prayer for an injunction enjoining Ms. Jones’ forcible entry and detainer action which enabled them to remain on the property.

Although we cannot say the trial court’s award of consequential damages to Ms. Jones is inequitable or results in unjust enrichment under these circumstances, we agree with Ms. Morrow that the measure of damages was in error. The underlying mortgage liability was not a consequential damage resulting from the Morrows’ breach, but a pre-existing obligation of Ms. Jones. However, under the circumstances, Ms. Jones’ inability to pay the mortgage in a timely fashion was a foreseeable consequence of the Morrows failure to pay rent. Thus, the trial court properly awarded the late fees, reinstatement fees, and attorney’s fees as consequential damages, but erred in awarding the amount of the underlying mortgage. Accordingly, we remand for a re-ealeulation of the consequential damage award to Ms. Jones.

Ms. Morrow contends Ms. Jones should be equitably estopped from seeking damages for breach of contract. We find no merit in Ms. Morrow’s assertion that equitable estoppel should afford her a basis for relief. The evidence does not preponderate against the trial court’s finding that the Morrows were approximately $800 short of the purchase price at the time of closing, and, without elaborating on the statute of frauds applicable to the sale of real property, there is nothing in the record to indicate that Ms. Jones agreed to convey the property for less than the contractual purchase price.

Likewise, we find no merit in Ms. Morrow’s assertion that the trial court abused its discretion in how it conducted the proceedings to such an extent that Ms. Morrow’s due process rights were violated. Generally, the conduct of a trial or proceeding is within the sound discretion of the trial court. Beaty v. McGraw, No. 03A01-9211-CV-00417, 1993 WL 119799, at *4 (Tenn.Ct.App. Apr.16, 1993)(no perm. app. filed). In light of the entire record in this case, we cannot say the trial court abused its discretion in determining the course of the proceedings.

Holding

We affirm the judgment of the trial court denying Ms. Morrow specific performance. We affirm the award of consequential damages as modified. This cause is remanded for a determination of consequential damages consistent with this opinion. Costs of this appeal are taxed one-half to the Estate of Fay A. Jones, and one-half to the Appellant, Shari Parker Morrow, and her surety, for which execution may issue if necessary.

      . In Hill v. Goodwin, 722 S.W.2d 668, 671-672 (Tenn.Ct.App.1987), we noted, "we are not convinced that substantial performance of a contract for'the sale of real estate will entitle the vendee to specific performance of that agreement" in Tennessee.


author: HOLLY M. KIRBY, J.,

text:
    Danny SILSBE v. HOUSTON LEVEE INDUSTRIAL PARK, LLC.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    April 19, 2004 Session.
    Sept. 3, 2004.
    Permission to Appeal Denied by Supreme Court Feb. 28, 2005.

      John L. Ryder, Memphis, for the appellant, Danny Silsbe.
    John D. Horne, Memphis, for the appel-lee, Houston Levee Industrial Park, LLC.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which ALAN E. HIGHERS, J., and DAVID R. FARMER, J., joined.

This is a contract case. On December 21, 2001, the parties entered into a contract granting the plaintiff an option to purchase real property. The plaintiff was required to exercise his option by 5:00 p.m., January 21, 2002, either by delivering written notice by that date to the defendant corporation, or by mailing written notification, postmarked no later than January 21, 2002. At the time the contract was executed, the parties were unaware that January 21 was a national holiday recognizing Martin Luther King, Jr. On January 21, 2002, the plaintiff attempted to hand-deliver written notification of his intent to exercise the option, found no one at the defendant’s office at the time and mistakenly assumed the office was closed because of the holiday. On January 22, the plaintiff hand-delivered written notice to the defendant. The defendant maintained that the option had expired. The plaintiff filed this lawsuit, seeking a declaratory judgment that the January 22 notice-was timely and that the defendant was obligated to sell him the property pursuant to the option contract. After a trial, the trial court held in favor of the defendant, finding that the option had expired. The plaintiff appeals, arguing impossibility of performance and mutual mistake. We affirm, finding that the trial court did not err in concluding that the doctrines of impossibility of performance and mutuality of mistake are not applicable.

Plaintiff/Appellant Danny Silsbe (“Sils-be”) and Defendant/Appellee Houston Levee Industrial Park, LLC (“Houston Levee”), entered into a contract granting Silsbe the option to purchase from Houston Levee two certain parcels of real estate in Shelby County. The contract was negotiated on Houston Levee’s behalf by its sole owner and registered agent, Ray Mattingly. The contract, executed on December 21, 2001, provided:

[Houston Levee] does hereby give and grant to [Silsbe], the right to purchase said above described parcel of real estate, at any time, from this date until 5:00 P.M. (CST), January 21, 2002 If [Silsbe] exercises this option, [Silsbe] shall give [Houston Levee] written notice of his intention by the aforesaid date, said notice to be delivered in person or mailed by certified mail, return receipt requested, postmarked on or pri- or to the date herein specified, to the address of [Houston Levee]....

Thus, in order to exercise the option, Sils-be was required to provide written notice to Houston Levee either by personal delivery on or before January 21, 2002, or by certified mail, postmarked on or before January 21, 2002. Both parties understood that Silsbe’s notice of intent to exercise the option was to be given to Mattingly. Toward that end, Mattingly provided Silsbe with several telephone numbers, including his cell phone numbers, for Silsbe to contact him. At the time the contract was executed, both parties were unaware that they had set the deadline on the national holiday honoring Martin Luther King, Jr.

On January 21, 2002, neither Mattingly nor his agents received any notice that Silsbe had decided to exercise the option. On January 22, 2002, however, there was a flurry of activity designed to communicate Silsbe’s intent to exercise the option. Sils-be hand-delivered a hand-written notice of intent to exercise the option to Mattingly’s office assistant, Lisa Haddick (“Haddick”). Silsbe also telephoned both Mattingly and Houston Levee’s attorney to tell them he wanted to exercise the option. Silsbe had his attorney fax a copy of the written notice to Houston Levee’s attorney. The next day, Houston Levee’s attorney notified Silsbe’s attorney that the option had not been timely exercised and that Mat-tingly declined to extend the option.

On January 29, 2002, Silsbe filed this lawsuit, seeking a declaratory judgment that the notice provided to Houston Levee on January 22 was timely and that Houston Levee was therefore obligated to sell him the real property that was the subject of the option. In his complaint, Silsbe alleged in part that it had been impossible for him to provide notice by 5:00 p.m. on January 21, 2002, because January 21 was Martin Luther King, Jr. Day. He asked the trial court to construe the option contract in such a manner that the notice delivered to Haddick on January 22 would be deemed timely.

The trial was held on November 4, 2002. Silsbe testified at the trial. Silsbe described his attempts to deliver notice of his intent to exercise the option on January 21, 2002, in accordance with the terms of the contract. He testified that he called Mattingly’s office that morning, and the telephone was answered by a recording. He did not leave a message. Later, at approximately 11:30 a.m., Silsbe went to Mattingly’s office to hand deliver a typewritten notice of his intent to exercise the option. He said, however, that the building was quiet and the door to Mattingly’s office was closed. Although, the door to Mattingly’s office had a mail slot, Silsbe did not leave his typed notice or any other writing at the office. When asked whether he saw the mail slot in Mattingly’s office door, Silsbe vacillated as to whether he saw the mail slot in the door, or saw it and did not recognize it as something in which he could have dropped the notice. Silsbe, however, steadfastly maintained in his testimony that, in any event, he would not have left the notice in the mail slot, because he was trying to hand deliver the document in accordance with the terms of the contract. Silsbe admitted that he was aware that Mattingly’s office door had a clock sign on it, indicating the time the staff would return. Silsbe said that he did not recall the time indicated on the clock when he went to Mattingly’s office. He testified that he did not pay attention to the sign because he believed that clock signs are often inaccurate. Silsbe later called Mattingly’s office at approximately 1:15 p.m., and no one answered. He testified that he did not recall a recording answering the phone. Silsbe admitted that he had been given Mattingly’s cell phone number and knew how to reach Mattingly by mobile phone, but Silsbe did not recall whether he attempted to reach Mattingly by the alternate numbers.

Haddick, Mattingly’s administrative assistant of ten years, testified at the trial. She said that Mattingly’s office was open on January 21, 2002, Martin Luther King, Jr. Day, and that Mattingly had told her to expect something from Silsbe either by mail or by hand-delivery from Silsbe himself. She testified that the office regularly opens at 8:30 a.m. and closes at 5:00 p.m. The office staff takes its lunch break every day from either 11:30 a.m. to 12:30 p.m. or 12:30 p.m. to 1:30 p.m. The regular office procedure for the staff was to place on the office door a clock sign indicating when the staff would return from lunch. Haddick testified that, on January 21, 2002, the staff did not deviate from its normal practice of leaving for lunch at either 11:30 or 12:30 or from placing the clock sign on the door. If the staff is out of the office or the phone lines are busy, Haddick said, a caller has the option of leaving a message. She said that, on January 21, 2002, no such message was left by Silsbe.

At the conclusion of the trial, the parties submitted proposed findings of fact and conclusions of law. In his proposed findings and conclusions, Silsbe asserted that it was impossible to satisfy the terms of the option contract due to the Martin Luther King, Jr. holiday, the fact that Mat-tingly was out of town, and the difficulties he encountered in attempting to deliver notice to Mattingly’s office on January 21, 2002. Silsbe argued that the parties did not intend for the option contract deadline to fall on a legal holiday, and contended that, when the contract was executed, the parties were unaware that January 21 was a national holiday.

On December 23, 2002, the trial court issued its findings of fact and conclusions of law. The trial court found that, though Mattingly was out of town on January 21, 2002, his office was open on that date. The trial court determined that- “[t]he parties intended the option to be exercised one month from the date the parties entered into the option contract.” The trial court then held, “The fact that [the deadline] given to exercise the option, January 21, 2002, was a legal holiday, does not extend the time required for acceptance.” The trial court noted that Silsbe could have exercised the option either on or before January 21, 2002, but that Silsbe did not exercise the option in conformity with the contract. The trial court therefore concluded that the option had expired. From that order, Silsbe now appeals.

On appeal, Silsbe argues that the trial court should have reformed the contract to set the option deadline on January 22, 2002. First, Silsbe asserts that, because (1) the mail could not be postmarked on January 21, 2002, due to the holiday, (2) Mat-tingly was unavailable to personally receive the notification, and (3) Silsbe was unable to make delivery at Silsbe’s office, this amounts to impossibility of performance which justifies reforming the contract. Next, Silsbe argues that the contract should be.reformed based on mutual mistake, because the parties were unaware that the day the option expired fell on Martin Luther King, Jr. Day. He notes that the contract contemplates that Silsbe would provide written notice on the deadline for exercising the option. Therefore, he contends, because the. parties knew Mattingly would be out of town on January 21, 2002, the parties could not have intended for the deadline to fall on a national holiday, because this foreclosed both methods for Silsbe to exercise his option on the deadline. Houston Levee argues that Sils-be’s appeal is frivolous and that Silsbe has engaged in a repeated pattern of delay in order to extract some economic return from Houston Levee. Therefore, Houston Levee seeks damages, including attorney’s fees, for having to defend the appeal. See Tenn Code Ann. § 27-1-122 (2000).

Because this case was tried by the trial court without a jury, we review the trial court’s factual findings de novo accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R.App. P. 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996). The trial court’s legal conclusions are reviewed de novo with no presumption of correctness. Campbell, 919 S.W.2d at 35. The weight, faith, and credit granted to a witness’s testimony lies first with the trial court, which has the opportunity to observe the witness’s manner and demeanor while testifying. Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn.Ct.App.1997). Because the trial court is in a far better position than this Court to determine those issues, the credibility accorded by the trial court will be given great weight on appeal. Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997).

It is well settled that an option is only enforceable as a contract when it is exercised by an unqualified, absolute, unconditional, unambiguous acceptance, without reservation, and in accordance with the terms of the option. See Pinney v. Tarpley, 686 S.W.2d 574, 580 (Tenn.Ct.App.1984). It is also well settled that an op-tionee’s method of acceptance may be limited by the optionor’s specifications for notification. See Dobson & Johnson, Inc., v. Waldron, 47 Tenn.App. 121, 336 S.W.2d 313, 317 (1960). If an option contract specifies a certain manner in which the option must be exercised, the optionee must exercise the option according to those terms. See Hall v. Crocker, 192 Tenn. 506, 241 S.W.2d 548, 549 (1951).

We first address Silsbe’s argument that it was impossible for him to exercise his option on the deadline. In Tennessee, the doctrine of impossibility of performance is usually employed defensively, excusing nonperformance of a contract, rather than offensively, in order to reform a contract. See, e.g., United Brake Sys., Inc. v. American Env’l Prot., Inc., 963 S.W.2d 749, 756 (Tenn.Ct.App.1997). Moreover, the doctrine of impossibility of performance is not applicable where performance becomes impossible due to factors which should have been foreseen and provided against. Gardner v. Gilreath, CA No. 174, 1990 WL 130894, at *6 (Tenn.Ct.App. Sept.13, 1990); Wilson v. Page, 45 Tenn.App. 475, 325 S.W.2d 294, 298 (1958). Silsbe has cited no Tennessee case applying the doctrine of impossibility of performance to an option contract, nor has our research revealed any such Tennessee cases. Instead, Silsbe cites a case from the Supreme Court of Michigan, O’Toole & Nedeau Co. v. Boelkins, 254 Mich. 44, 235 N.W. 820 (1931), in support of his “offensive” application of the doctrine to an option contract. O’Toole, however, has no application to the case at bar. In O’Toole, the plaintiffs attempted to exercise a real estate option by the deadline. The defendants learned that the plaintiffs intended to exercise the option and failed to appear to accept plaintiffs’ tender. O’Toole, 235 N.W. at 820. The O’Toole court found for the plaintiffs, holding that their failure to provide tender was excused because their attempt to do so “operate[d] as proof[ ] of readiness to perform” and “the tender [was] prevented through the contrivance of the persons to whom it should [have been] made.” Id. at 821 (citation omitted).

In the present case, unlike O’Toole, there is no proof that Mattingly tried to avoid Silsbe. To the contrary, at the. time the parties entered into the option, both were aware that Mattingly would be out of the city on January 21. Because of this, Mattingly gave Silsbe several phone numbers at which he could be reached on that day. The evidence does not preponderate against the trial court’s finding that Mat-tingly’s office was open on January 21, and that Mattingly’s assistant was there to accept written notice on Mattingly’s behalf. On January 21, 2002, Silsbe did not deliver written notice to Mattingly’s assistant, leave a voice mail message at Mattingly’s office, drop his typed notice in Mattingly’s office mail slot, contact Mattingly on his mobile phone, or leave notice with Houston Levee’s attorney.

Here, Silsbe simply has not shown that it was impossible for him to exercise the option in accordance with the contract. As noted by the trial court, Silsbe could have provided notice at any time from December 21, 2001 to January 21, 2002. Silsbe cannot rely on the fact that Mattingly was out of town on January 21, because Silsbe was aware that Mattingly would be out of town on that date at the time the contract was written. See Gardner, 1990 WL 130894, at *6; Wilson, 325 S.W.2d at 298. Silsbe was provided with a myriad of avenues for contacting Mattingly, even if he waited until the- January 21 deadline, including hand-delivering a written notice to Mattingly’s office, but he failed to do so. This argument is without merit.

We next address Silsbe’s argument that reformation of the contract is warranted in light of the parties’ mutual mistake in not being aware that the deadline for exercising the option fell on a national holiday. A written instrument may be reformed on the ground of mutual mistake when the mistake “is an act which would not have been done, or an omission which would not have occurred, but from ignorance, forgetfulness, inadvertence, mental incompetence, surprise, misplaced confidence, or imposition....” Williams v. Botts, 3 S.W.3d 508, 509-10 (Tenn.Ct.App.1999). However, “[i]nattention, as distinguished from mistake, is no ground for reformation.” Myrick v. Johnson, 25 Tenn.App. 483, 160 S.W.2d 185, 188 (1941) (citation omitted). Since the purpose of the doctrine is to permit the writing to fully and accurately reflect the parties’ agreement, see Lane v. Spriggs, 71 S.W.3d 286, 289 (Tenn.Ct.App., 2001), courts will not rewrite a contract “where the written instrument is drawn exactly as it was intended.” Myrick, 160 S.W.2d at 188 (citation omitted). Courts are to take into consideration the surrounding circumstances and any other factors which shed light on the parties’ intentions. City of Memphis ex rel. State v. Moore, 818 S.W.2d 13,16 (Tenn.Ct.App.1991).

In this case, the trial court expressly found that the parties to the contract intended to grant Silsbe one month from the date of the contract in which to exercise his option, and the evidence does not preponderate against this finding. The contract was executed on December 21, 2001, and the option- expired on January 21, 2002. Thus, the option contract was written in accordance with the parties’ intentions. The fact that the parties were unaware that the last day of the option period fell on Martin Luther King, Jr. Day did not preclude Silsbe from exercising his option, and any “mistake” by the parties about this fact does not warrant reformation of the contract. Therefore, we must conclude that the trial court did not err in finding that Silsbe failed to timely exercise the option and in declining to reform the contract as sought by Sils-be.

On appeal, Houston Levee seeks an award of damages under Tennessee Code Annotated § 27-1-122, asserting that Sils-be’s appeal is frivolous and that he has engaged in a pattern of delay. We decline Houston Levee’s request.

The decision of the trial court is affirmed. Costs of this appeal are taxed against Appellant Danny Silsbe and his surety, for which execution may issue, if necessary.

      . During the trial, Silsbe did not specify a time for the stop at Mattingly's office. Another witness, however, Joseph Gurley ("Gur-ley”), testified that he was with Silsbe on January 21 when Silsbe went to Mattingly's building. Gurley estimated that the stop at Mattingly's building was at approximately 1:30 p.m. During his deposition, Silsbe had testified that he had gone to Mattingly’s office at 11:45 a.m. At trial, Silsbe claimed that his deposition testimony had been inaccurate. However, Silsbe also testified at trial that he called Mattingly’s office at about 1:15 p.m., "in case they [the office staff] had gone to lunch,” but that he visited Mattingly's office earlier.

      . The notice Silsbe eventually delivered to Haddick was hand-written. When the trial court inquired about the discrepancy, Silsbe explained that after he did not deliver the typed notice, he contacted his attorney and explained the contents of the notice. Based on the information from Silsbe, his attorney hand wrote a second notification. This handwritten notice was delivered by Silsbe to Mat-tingly's assistant on January 22. Silsbe testified that he discarded the typed notice, believing it to be no longer necessary.

      . Although the trial court did not make express credibility determinations, it indicated that it was "[dis]satisfied with Mr. Silsbe's explanation regarding why he delivered a handwritten note to Mr. Mattingly’s office on January 22, 2002, when he asserts that he attempted to deliver a typewritten note the day before on January 21, 2002.” The trial court also noted the testimony of James Kee ("Kee”), Houston Levee’s attorney. Kee testified that when Mattingly called him on Janu-aiy 22 to express his intent to exercise the option to purchase the property, Kee told Silsbe that he was late exercising the option. Kee testified that Silsbe replied that he was unaware that he had to exercise the option by a certain time.


text:
    Bruce McGEHEE, M.D. v. Otis A. PLUNK, M.D.
    Court of Appeals of Tennessee, at Jackson.
    May 20, 2004 Session.
    Aug. 3, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 31, 2005.

      William P. Zdaneewicz, Memphis, Tennessee, for the appellant, Otis A. Plunk, M.D.
    Stephen R. Leffler, Memphis, Tennessee, for the appellee, Brace McGehee, M.D.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and DAVID G. HAYES, SP. J., joined.

A judgment was rendered against corporation, of which Defendant is 100% owner. Plaintiff sought to recover judgment from Defendant’s corporation but was unsuccessful. Plaintiff filed suit against Defendant alleging that conveyance made between corporation and Defendant was fraudulent. The trial court found the conveyance fraudulent and assessed the judgment against the Defendant, personally. For the following reasons, we affirm.

On December 18, 1998, Lifesigns of Memphis, P.C. (Lifesigns 1) filed a petition for a temporary restraining order and in-junctive relief against Bruce McGehee, M.D. (Dr. McGehee). In the petition, Lifesigns 1 alleged that it terminated its employment contract with Dr. McGehee. Based upon non-solicitation and confidentiality clauses contained in the employment contract, Lifesigns 1 sought to enjoin Dr. McGehee from communicating in any way with Lifesigns l’s patients and accounts for ten years after his termination. On June 29, 1999, Dr. McGehee answered the petition and counter-complained against Lifesigns 1 and its owner, Otis Plunk, M.D. (Dr. Plunk). In the counter-complaint, Dr. McGehee alleged that Life-signs 1 and Dr. Plunk breached the employment contract and an implied duty of good faith and fair dealing, and further that his discharge was retaliatory. In its judgment, the trial court granted Dr. McGehee’s breach of contract claim; denied the claims of breach of an implied duty of good faith and fair dealing and retaliatory discharge; awarded damages against Lifesigns 1 in the amount of $32,610.33, including an award of attorney’s fees; and required Lifesigns 1 to surrender to Dr. McGehee all shares of stock in the possession of Lifesigns 1 to Dr. McGehee.

On September 10, 2001, Dr. McGehee filed a complaint to set aside an alleged fraudulent conveyance made by Dr. Plunk. In the complaint, Dr. McGehee alleged that, after he filed his counter-complaint against Lifesigns 1 and Dr. Plunk, Dr. Plunk liquidated the account receivables of Lifesigns 1 and deposited them into his personal account. Dr. McGehee complained that the transfer of funds from Lifesigns 1 to Dr. Plunk was done without adequate consideration and intended to render Lifesigns 1 insolvent. Dr. McGe-hee sought to have the $32,610.33 judgment from his breach of contract claim assessed against Dr. Plunk personally.

Trial for Dr. McGehee’s claim of fraudulent conveyance occurred on February 13 and 14, 2003. At the conclusion of the proof, the trial court made the following observations:

In this case we have the defendant, Dr. Otis Plunk, who is not only a physician but, I guess by his own testimony, a sophisticated businessman who has an M.B.A. Degree from Vanderbilt and has the entrepreneurial desire to not only practice medicine but to set up clinics, not on a sole franchise basis, but essentially a chain of clinics for the purpose of performing physical examinations for corporations. Dr. Plunk recruited Dr. McGehee from North Carolina to operate [Lifesigns 1] so that he [Dr. Plunk] could ... open up the Life Signs of Nashville clinic [Lifesigns 2]. This was back in April of 1998 when Dr. McGe-hee, I guess it was March of '98 perhaps, when Dr. McGehee moved to Memphis and Dr. Plunk moved to Nashville in April of '98. Subsequent disagreements arose between Dr. McGehee and Dr. Plunk. And in December of '98 [Dr. McGehee] was discharged from [Lifesigns 1].
Dr. Plunk has testified about the various entities that this company became— moved from [Lifesigns 1], the stock was transferred in March of '99 to [Lifesigns 2] and then to O.A.P. and Associates [Lifesigns 3] and subsequently to Life Signs Holding Company [Lifesigns 4]. Meanwhile the day after Dr. McGehee is discharged, [Lifesigns 1], files a petition for temporary restraining order in the form of relief in Circuit Court of Shelby County seeking to restrain Dr. McGehee from solicitations and whatnot and these courts are used to enforce an injunction against Dr. McGehee. Subsequently, Dr. McGehee retained counsel. An answer to the complaint was filed and a counter-complaint was brought against [Lifesigns 1] in June of '99. We now know that in March of '99, apparently, the stock of [Lifesigns 1] was transferred to [Lifesigns 2].
As part of the proof in this case, Dr. Plunk’s deposition and an execution of judgment that was taken on August the 8th of 2001 and was admitted as Exhibit six. Dr. Plunk testifies in that deposition on page five, line 23 “Does [Life-signs 1] still exist?” And he answers, ‘Tes.” Page six, “And is that still the name of the corporation, [Lifesigns 1]?” And he answered, ‘Tes.” And he states, “And I notice that you have handed me a stock certificate that was mentioned in the order of the court, the final order and it has a date on the 23rd day of May of 2001. Are you familiar with that stock certificate?” And he said, ‘Tes.” [“]And do you agree with me that today, August the 8th of 2001 is when you handed me that stock certificate for the first time?” Answer, “Yeah, I gave it to my attorney Bill Zdancewicz.” On page seven, “What is your position [with Life-signs 1]?” Answer, “I no longer have a position with the company”. Question, “Are you an officer director?” “No.” Line 12, “What corporations are you an officer of?” Answer, “[Lifesigns 4].” And page eight, line 15, “Are you on the board of directors?” Answer, ‘Tes.” Question, “[Lifesigns 4]?” Answer, ‘Tes.” “And are you still president of the board?” Answer, ‘Tes.” Page ten, line four, “What is the relationship, if any, between [Lifesigns 3] and [Life-signs 4].?” Answer, “[Lifesigns 4] owns 99 percent of [Lifesigns 3], approximately.” Line 13, “Does [Lifesigns 1] own any assets?” Answer, “Not that I am aware of.” Question, “When was the last time that [Lifesigns 1] owned any assets?” Answer, “There was small bank account balances — -in late — early 2000.” Question, “Late '89 or '98?” Answer, “Late '99.” “Okay.” Page 11, line four, “And it was shortly after that you’re saying that [Lifesigns 1] transferred its assets to [Lifesigns 4]?” Answer, “Yes.” “And that would have occurred in early 1999, correct?” ‘Yes.” Question, “So I would be correct in saying that when [Lifesigns 1] filed an answer to a' counter-complaint and filed that answer on June the 26th of 2000, then at that time, [Lifesigns 1] had already transferred its assets to [Lifesigns 4][,] is that correct?” Answer, “It had sold assets at that time, yes.” Question, “And what were the terms of the sale of those assets? What 'did [Lifesigns 4] pay for those assets?” Answer, “Essentially outstanding accounts receivables.” [“]There may have been some accounting charges or, you know, to recoup depreciation.” Question, “What you’re saying is that [Lifesigns 1] transferred its accounts receivables to [Lifesigns 4]?” Answer, “No. That’s the only thing it retained.” Question, “The only thing that [Lifesigns 1] retained was its accounts receivable?” Answer, “Correct.” “Then what was transferred to [Life-signs 4] at that time?” Answer, “Well, it wasn’t anything else.” Line 22, “So these would have been accounts receivable from insurance companies[,] is that correct?” “Correct.” Page 13, line 18, “What did [Lifesigns 4] pay to [Lifesigns 1] for those accounts receivable?” “Rephrase that. Just repeat it.” Question, “What did [Lifesigns 4] pay to [Lifesigns 1] for those accounts receivable that were transferred to [Lifesigns 4]?” Page 14, line two, “Well, I mean, it didn’t. [Lifesigns 4] didn’t get the receivables.” Question, “Who got the receivables?” “[Lifesigns 1] retained the receivables.” “So then, [Lifesigns 1] didn’t transfer anything to [Lifesigns 4]; is that correct, because the only thing they had was receivables?” Answer, “Right.” Question, “But [Lifesigns 1], as I understand it, it no longer holds those receivables[,] is that correct?” Answer, “Well, I was a hundred percent owner of [Life-signs 1] [a]nd so essentially, those were — it was a subchapter S corporation. So I essentially paid tax and used those proceeds personally, paid taxes and used those proceeds personally.” Page 15, “Did you pay the [Lifesigns 1] any money in exchange for what you received from the corporation?” “No.” “How much did you write yourself a check for?” “In the neighborhood of probably $100,000.00.[”] “And when you received that money from [Lifesigns. 1], I mean, it came over a fairly prolonged period of time.” Question, “But it went into your personal account?” “No. It went into [Lifesigns 1] and on occasion I would take money.” ‘You would put that money where?” Answer, “In my personal account.”
Now, Dr. Plunk was the — this was a subchapter S corporation. And he’s testified in his deposition on page 14 that he was a one hundred percent owner of [Lifesigns 1] on the stand. And this is after giving — previously giving earlier in the deposition, this stock interest to Dr. McGehee. Dr. Plunk testified on the stand that Dr. McGehee had an ownership interest in [Lifesigns 1] He also testified that the only thing that [Life-signs 1] had at the time of this transfer to [Lifesigns 4], which was frankly, apparently, a couple of transfers later, according to his testimony on the stand, where these accounts receivable, which he kept a hundred percent of because he stated that he was a hundred percent owner of [Lifesigns 1]. This is after filing a petition in the Circuit Court on December the 18th of '98 and subsequently filing an answer to the counter-complaint.
This is all very confusing. There is no question about it. Dr. Plunk is obviously very sophisticated at handling these matters in conjunction with his accountants and his attorneys. But in the court’s eyes, which it appears to the court that the timing of these transfers and the fact that Dr. Plunk was aware at the time that the transfers were made directly into his personal account from the only assets that were available to pay any judgment that might have been rendered in this matter in the lawsuit that his company filed. The company that he testified he was a hundred percent owner of is an attempt to defraud Dr. McGehee. And as a result the conveyances — this court finds that there was a fraudulent conveyance in an attempt to defraud a valid creditor. And that a judgment should be entered against Dr. Plunk individually in the amount of $82,610.32.
The court will not render a judgment in the amount in the value of the stock because there is testimony that the stock may have a value of anywhere between — no, you can’t base stock on what someone pays for stock. All of us who own stock know that. The only testimony that we have on that is that the stock and whatever this ultimate entity might be is anywhere from zero to ten million dollars. And presumably if there’s any value to the stock which there may or may not be or we may be talking about perhaps litigation down the road on that issue. But this court can’t deal on speculation and can’t— there’s no way to put any value on that at this point. And ultimately we’ll have to see what happens, I guess, in January or July of '05 whenever that’s supposed to take place. But Dr. McGehee has a judgment in Circuit Court. It was found he had a valid judgment found by the Circuit Court of this county. And this court finds that the judgment should be entered against Dr. Plunk personally for that judgment. (The trial court is quoting portions of Dr. Plunk’s deposition, Exh. 6)

Dr. Plunk timely filed his notice of appeal.

Issues Presented

Dr. Plunk raises the following issue, as we restate it, for review by this Court:

Whether the trial court erred in finding that Dr. Plunk made a fraudulent conveyance.

Standard of Review

Our review of a tidal court’s conclusions on issues of law is de novo, with no presumption of correctness. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn.2002). Our review of a trial court’s findings on issues of fact is de novo upon the record, accompanied by a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d); Kendrick, 90 S.W.3d at 569. Where the trial court makes no specific findings of fact on a matter, we must review the record to determine where the preponderance of the evidence lies and accord no presumption of correctness to the conclusion of the court below. Kendrick, 90 S.W.3d at 569.

Analysis

Dr. Plunk argues that the trial court erred in finding that the transfers in controversy satisfy the elements required in Tenn.Code Ann. § 66-3-305 (1993) to deem a conveyance fraudulent. Tennessee Code Annotated § 66-3-305 provides:

Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to such person’s actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.

Tenn.Code Ann. § 66-3-305. Further, “[t]o make a conveyance fraudulent against creditors, it must be made without a fair consideration leaving the grantor insolvent.” Macon Bank & Trust Co. v. Holland, 715 S.W.2d 347, 349 (Tenn.Ct.App.1986) (citing Hicks v. Whiting, 149 Tenn. 411, 258 S.W. 784 (1924)).

We will address the insolvency requirement first. Tenn.Code Ann. § 66-3-302 (1993) defines insolvency as “[a] person is insolvent when the present fair salable value of the person’s assets is less than the amount that will be required to pay the probable liability on such person’s existing debts as they become absolute and matured.” Dr. Plunk argues that Life-signs 1 “had significant net worth at the time of the transfer of its’ assets.” However, in answering the garnishment to the judgment rendered against Lifesigns 1 from the original suit, Lifesigns 1 stated “[tjhat the judgment debtor does not hold any wages or benefits of the judgment creditor, [Dr. McGehee, and] [a]s further answer the judgment debtor states that it does not own any goods, channels, lands and tenements in order to answer the subject garnishment.” As a result, Dr. Plunk is precluded from arguing that Lifesigns 1 was not insolvent as it is defined in Tenn. Code Ann. § 66-3-302.

The second element required for a conveyance to be deemed fraudulent under Tenn.Code Ann. § 66-3-305 is that the conveyance must be made without fair consideration. Dr. Plunk argues that the payment of the accounts receivable from Lifesigns 1 to his bank account was fair consideration because he was paying himself his salary. Tennessee Code Annotated § 66-3-304 (1993) defines fair consideration as “in exchange for such property, or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied.” While there was testimony at trial that it was customary for Lifesigns 1 to pay Dr. Plunk’s salary from the account receivables, when there was money available, there was also testimony given by Dr. Plunk that questions whether the exchange was made in good faith. Dr. Plunk testified that his payments from the accounts receivable were not consistent. He would take out some here and there and pay Lifesigns l’s monthly expenses. Dr. Plunk further testified, in his deposition, that in early 1999, Lifesigns 1 transferred its assets to Lifesigns 4. He later testified that Lifesigns 1 did not transfer any assets to Lifesigns 4. But instead, Dr. Plunk took $100,000 from Lifesigns l’s accounts receivable and deposited it into his personal bank account. This transfer coincides with the dates that Dr. Plunk testified that Lifesigns 1 did not have any assets. As a result, Dr. Plunk’s liquidation of Lifesigns l’s remaining assets would have been done during the litigation, which resulted in a judgment being entered against Lifesigns 1. The trial court found the nature and timing of these transactions confusing and we concur in that assessment. Based upon this testimony and the credibility of Dr. Plunk, the trial court concluded that these transactions were fraudulent. We also believe that Dr. Plunk’s complete liquidation of the remaining assets of Life-signs 1 during the litigation was not done in good faith as it is enumerated in Tenn. Code Ann. § 66-B-304. Accordingly, we affirm the finding of the trial court that Lifesigns 1 made a fraudulent conveyance.

Conclusion

In light of the foregoing, we affirm the decision of the trial court assessing the $32,610.33 against Dr. Plunk, personally. Costs of this appeal are taxed to the Appellant, Otis A. Plunk, M.D., and his surety, for which execution may issue if necessary.

      . While appellant’s brief states that injunctive relief was granted against Dr. McGehee, the interim and final judgment, entered March 26, 2001 and May 22, 2001, along with the record as a whole, do not support such a resolution.

      . The 1993 version of the statute will be applied in this case as the trial occurred before the effective date of the amendment, July 1, 2003. See Tenn.Code Arm. § 66-3-305 (2003) (amendments).

      . Dr. Plunk also argues that the conveyance should not be deemed fraudulent because it did not violate Tenn.Code Ann. § 66-3-101 (1993). We will not address this argument because a conveyance can be deemed fraudulent under either Tenn.Code Ann. § 66-3-101 or § 66-3-305.

      . While the statute uses the word "person,” the statute's definition of insolvency is also applicable to corporations. See Hyde Props, v. McCoy, 507 F.2d 301, 307 (6th Cir.1974).

      . Dr. Plunk does not raise the issue of whether the trial court could have assessed the judgment against Dr. Plunk, personally, upon the finding of a fraudulent conveyance, as defined by Tenn.Code Ann. § 66-3-101 or § 66-3-305, so we do not reach the propriety of that action.


text:
    SEILLER & HANDMAKER, L.L.P. and Glen Cohen v. Kelly FINNELL.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    June 22, 2004 Session.
    Oct. 27, 2004.
    Application for Permission to Appeal Denied by Supreme Court March 28, 2005.

      Mark Vorder Bruegge, Jr. and Scott B. Ostrow, Memphis, Tennessee, for the appellant, Kelly Finnell.
    Wendell L. Jones, Louisville, Kentucky, for the appellees, Seiller & Handmaker, L.L.P."and Glen Cohen.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which ALAN E. HIGHERS, J. and DAVID R. FARMER, J., joined.

This is an action to enroll a foreign judgment. A Tennessee resident was represented by a Kentucky lawyer in a Kentucky lawsuit. When the Kentucky lawyer pursued collection of his fees, the Tennessee client filed a bar complaint against him in Kentucky. The bar complaint was dismissed, and the Kentucky lawyer filed a malicious prosecution lawsuit in Kentucky against the client, and obtained a judgment. In this action, the Kentucky lawyer seeks to enroll the Kentucky judgment against the Tennessee client. The client asserts that the judgment should not be enrolled in Tennessee because it falls under the public policy exception to the full faith and credit clause of United States Constitution. The client bases this argument on Tennessee Supreme Court Rule 9, section 27.1, which prohibits any lawsuit based on a bar complaint, asserting that the enrollment of a foreign judgment based on this cause of action would violate Tennessee public policy. The trial court held that the Kentucky judgment was entitled to full faith and credit and domesticated the judgment. We affirm the decision of the trial court, finding that the enrollment of the foreign judgment does not violate Tennessee public policy.

Plaintiff/Appellee Glen Cohen (“Cohen”) is a Kentucky attorney associated with the Kentucky law firm Seiller & Handmaker LLP. Cohen and his law firm represented Defendant/Appellant Kelly Finnell (“Fin-nell”), a Tennessee resident and a licensed Tennessee attorney, in a 1993 Kentucky lawsuit. After a successful outcome, a dispute arose regarding Cohen’s legal fees, totaling $3,800, and Finnell refused to pay.

In late November 1997, Cohen filed a lawsuit in Kentucky against Finnell for collection of his attorney’s fees. In early December 1997, Finnell sent Cohen a letter demanding that Cohen voluntarily dismiss the collection lawsuit and enclosing a proposed bar complaint against Cohen,- alleging unethical conduct. In the letter, Finnell told Cohen that he would refrain from filing the bar complaint and save Cohen the “embarrassment” of responding to it if Cohen would dismiss the collection lawsuit. Cohen did not dismiss the collection lawsuit, and Finnell filed the bar complaint against Cohen with the Kentucky authorities.

Finnell’s bar complaint against Cohen was dismissed. Cohen then amended his Kentucky collection lawsuit against Finnell by adding a claim of malicious prosecution, asserting that the purpose of Finnell’s bar complaint was to intimidate and harass Cohen into dropping his claim for fees against Finnell. Finnell then filed a second bar complaint against Cohen in Kentucky. The second complaint was likewise dismissed.

Although Finnell filed an answer in Kentucky to Cohen’s original collection lawsuit, no answer was filed to the amended complaint alleging malicious prosecution. Cohen filed a motion for default judgment, and Finnell failed to appear at the hearing on the motion. Consequently, in May 1998, a default judgment was entered against Finnell, with a hearing on damages set for later that month.

Prior to the hearing on damages, Finnell paid Cohen’s original $8,800 claim for attorney’s fees, plus interest. After the hearing on damages, in August 1998, the Kentucky trial court entered an order making the following findings:

4. Cohen sent a bill for $3800.00 in attorney fees and $400.00 in mediation expenses.... [T]he court finds such fees and expenses reasonable....
5. Finnell never paid the fee. On November 21, 1997, the law firm filed this lawsuit seeking compensation. On December 2, 1997, Finnell sent a proposed bar complaint against Cohen with a letter demanding Cohen voluntarily dismiss the action against him. The court finds the sole purpose of this letter and proposed bar complaint was to intimidate and harass Cohen and the law firm. Finnell followed the letter with a telephone call on December 15, 1997, again seeking to persuade Cohen to dismiss the lawsuit. Finnell testified that he anticipated Cohen would be embarrassed by the bar action.
6. Cohen testified that as a result of the initial complaint, as well as an amended complaint filed on February 6, 1998 after the first one was dismissed, he was upset and embarrassed.
7. Again Finnell testified that the purpose of the second bar complaint, and the court so finds, was to cause Cohen to change his intentions of pursuing the fee litigation. The second complaint is more egregious than the first. While it is not uncommon for clients to complain about fees, to question the ethics of an attorney goes to the very heart of oui' profession. As a licensed attorney who completes the necessary ethics courses to keep his license, Finnell knew, or should have known, of the impact on an attorney’s reputation when such allegations are made.
9. One of the primary purposes of punitive damages is to deter further harmful conduct by a party. It is clear from Finnell’s conduct, toward Cohen and before the Kentucky Bar Association and this court, that he has little regard for the practice of law, reputation of lawyers and orders of the courts of Kentucky. Finnell was willing to destroy an attorney’s reputation for a mere $3800.00 fee.

Based on these findings, in addition to the $3800 in attorney’s fees already paid by Finnell, the Kentucky trial court awarded Cohen $20,000 for economic loss for the time spent defending against Finnell’s bar complaints, $25,000 for emotional distress, humiliation and embarrassment, and $25,000 in punitive damages.

Finnell filed a motion to alter or amend, which was denied. Finnell then appealed the judgment to the Kentucky Court of Appeals. In February 2001, the Kentucky Court of Appeals affirmed the trial court’s order. Finnell appealed to the Kentucky Supreme Court, and permission for his appeal was denied in August 2001.

Cohen filed a petition in the Shelby County Circuit Court in Tennessee to enroll the Kentucky judgment against Fin-nell. Finnell sought to prevent the enrollment of the judgment under the public policy exception to the Full Faith and Credit Clause of the U.S. Constitution. Finnell cited Tennessee Supreme Court Rule 9, section 27.1, which enforces the Code of Professional Responsibility, which states:

Communications to the board, hearing committee members or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceeding shall be absolutely privileged, and no civil lawsuit predicated thereon may be instituted against any complainant or witness

Tenn. S.Ct. R. 9, § 27.1. Finnell argued that this rule expresses a Tennessee public policy against permitting a lawyer to file a lawsuit against one who. files an ethics complaint against the lawyer. To permit the enrollment in Tennessee of a foreign judgment predicated on such a lawsuit, Finnell contended, would violate the public policy of Tennessee. The Tennessee trial court rejected this argument and enrolled Cohen’s Kentucky judgment against Fin-nell. From this order, Finnell now appeals.

The facts of this case are undisputed. The trial court’s legal conclusions are reviewed de novo with no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996).

Finnell argues that the Kentucky judgment should not be enforced because the underlying cause of action, malicious prosecution for filing a bar complaint, violates Tennessee public policy. Finnell argues that Tennessee Supreme Court Rule 9, section 27.1 grants absolute immunity from suit for one who files a bar complaint in Tennessee against a lawyer. Finnell maintains that this Rule was adopted to ensure that those utilizing the services of Tennessee lawyers will not hesitate to report unethical conduct or fear reprisal for doing so. Permitting enrollment of the Kentucky judgment, Finnell contends, would allow a Tennessee court to be used to punish a Tennessee resident for filing a bar complaint with the Kentucky Bar Association, in violation of the public policy embodied in section 27.1.

In response, Cohen argues that Tennessee permits a malicious prosecution action arising out of a false and malicious bar complaint against an attorney, citing Lackey v. Metropolitan Life Ins. Co., 30 Tenn.App. 390, 206 S.W.2d 806 (1946), and maintains that Cohen’s claim against Finnell would be permitted in Tennessee. In the alternative, Cohen contends, even if section 27.1 is an absolute grant of immunity to one who files a bar complaint against a Tennessee lawyer, it does not rise to the level of a public policy which would prohibit giving full faith and credit to the Kentucky judgment.

Finnell correctly states the rule of law that “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.CtApp. Sept.30, 1993). Finnell acknowledges, however, that a party who invokes the public policy exception must identify the public policy that is offended by the foreign judgment and has a “ ‘stern and heavy’ burden.” Id. (quoting Biogen Distrib., Inc. v. Tanner, 842 S.W.2d 253, 256 (Tenn.Ct.App.1992)).

Tennessee public policy is found in its “constitution, statutes, judicial decisions, and common law.” Alcazar v. Hayes, 982 S.W.2d 845, 851 (Tenn.1998). “Although the determination of public policy is primarily a function of the legislature, the judiciary may determine public policy in the absence of any constitutional or statutory declaration.” Id. (quoting Crawford v. Buckner, 839 S.W.2d 754, 759 (Tenn.1992)).

Finnell cites In re Riggs as an example of a foreign judgment denied full faith and credit by Tennessee courts based on the public policy exception. In re Riggs, 612 S.W.2d 461 (Tenn.Ct.App.1980). In Riggs, a child was born out of wedlock. The mother released her parental rights so that the child could be adopted, and falsely denied any knowledge of the father’s name or his whereabouts. Consequently, the biological father did not receive notice of the child’s adoption by a couple in Georgia. The adoptive couple moved to Tennessee, and in Tennessee proceedings the biological father sought custody of the child, arguing that the Georgia adoption decree should not be given full faith and credit in Tennessee because the father had no notice and no right to a hearing before his parental rights were terminated. The Tennessee Court of Appeals refused to honor the Georgia judgment terminating the father’s parental rights because it was repugnant to “Tennessee’s interest in sustaining the father-child relationship and protecting the family unit.” Aqua Sun Inv., Inc., 1993 WL 382230 (Tenn.Ct.App.1993) (citing In re Riggs, 612 S.W.2d 461 (Tenn.Ct.App.1980)). Finnell asserts that Tennessee Supreme Court Rule 9, section 27.1 evidences the public policy of protecting the integrity of the legal system, and that Tennessee’s interest in protecting its legal system is as important as the interests underlying the public policy found in Riggs.

Indeed, in In re Estate of Davis, No. M2003-02614-COA-R3-CV, 2004 WL 1950729 (Tenn.Ct.App. Sept. 2, 2004), this Court refused to honor an antenuptial agreement executed in Florida because the agreement violated Tennessee public policy. In Tennessee, an antenuptial agreement is enforceable only if it was entered into “freely, knowledgeably and in good faith without exertion of duress or undue influence upon either spouse.” Id. at *3 (citing Tenn.Code Ann. § 36-3-501 (2001)). Thus, the parties to an antenuptial agreement must fully and fairly disclose their financial condition prior to execution of the agreement if the agreement is later to be enforced, regardless of whether the marriage ends by divorce or by the death of one of the spouses. In contrast, under Florida law, full and fair disclosure of both parties’ financial circumstances is required only if the marriage ends in divorce. If the marriage ends by the death of one of the spouses, under Florida law, the parties to the antenuptial agreement are not required to give full and fair disclosure of them financial condition prior to execution of the agreement in order for the agreement to be enforceable in the probate court. Id. at *4 (citing Fla. Stat. Ann § 732.702 (2002)). In Davis, the surviving spouse signed an antenuptial agreement that waived the elective share of her husband’s estate even though, at the time the agreement was executed, she was not aware of his financial condition. Id. at *7. After he died, the Tennessee probate court held that the antenuptial agreement was enforceable. This Court reversed, and held that the requirement of full and fair disclosure for antenuptial agreements rises to the level of public policy due to the “unique and confidential nature of the marital relationship” and that this policy “promotefs] the highest degree of fiduciary duty between spouses.” Id.

Thus in Davis, the husband’s heirs sought to enforce an antenuptial agreement in derogation of the wife’s historic statutory elective share. The Tennessee legislature enacted a statute providing that, in order to enforce such an agreement, the parties to the agreement must have fulfilled their fiduciary duty to one another to fully disclose their circumstances. Thus, this Court found that, given the unique nature of the marital relationship, the statute enacted by the Tennessee legislature rose to the level of a statement of public policy. Likewise, in Riggs, given the fundamental nature of the parental relationship, enforcing a judgment that terminated the father’s parental rights with no notice and no right to a hearing was repugnant to the State’s strong interest in protecting the father-child relationship.

Finnell argues that the Supreme Court Rule represents public policy because the Tennessee Legislature empowered the Tennessee Supreme' Court to make rules governing the practice of law in Tennessee. In response, the Supreme Court promulgated the Rules of Disciplinary Enforcement to enforce the code of professional responsibility. However, in Crews v. Buckman Labs., the Tennessee Supreme Court specifically declined to rule “that every provision of the Code of Professional Responsibility reflects an important public policy.” Crews v. Buckman Labs., 78 S.W.3d 852, 865 (Tenn.2002). As such, Finnell must meet the burden of showing why section 27.1 reflects public policy.

Certainly, both Tennessee and Kentucky have a strong interest in protecting the integrity of their respective legal systems. Both states have regulations that govern immunity from prosecution related to bar complaints. Tenn. S.Ct. R. 9 § 27.1; Ky. Sup.Ct. Rule 3.160. However, the relevant Tennessee rule is much broader in scope than the corresponding Kentucky rule, which obviously permits the filing of a malicious prosecution lawsuit against one who files a bar complaint against an attorney. The mere recognition of a Kentucky judgment, which is based on a law more narrow in scope than the Tennessee counterpart, does not in and of itself violate Tennessee public policy. Indeed, the facts of this case illustrate the competing interests sought to be balanced by both Tennessee and Kentucky. As noted by Fin-nell, permitting an attorney to respond to a bar complaint against him by filing a malicious prosecution lawsuit may deter one with a legitimate complaint from filing it, for fear of reprisal. As demonstrated by Finnell’s conduct, however, such immunity could be utilized by one with impure motives to file a false and malicious bar complaint against a lawyer, leaving the lawyer with no recourse. Thus, in balancing the competing interests, Tennessee and Kentucky have found the balance in differing disciplinary rules. Moreover, the interests involved, while important indeed, do not, as in Davis, involve an interest such as the fiduciary duty between spouses at the heart of the marital relationship, or the parental rights of a biological father. Therefore, assuming arguendo that section 27.1 would prohibit in Tennessee the malicious prosecution claim filed by Cohen against Finneil, we must nevertheless conclude that enrollment of the Kentucky judgment does not violate Tennessee public policy.

This Court has previously held that “a state court must give full faith and credit to a monetary judgment rendered in a court of another state, even though the enforcing forum might not recognize the underlying cause of action.” Mirage Casino-Hotel v. Pearsall, No. 02A01-9608-CV-00198, 1997 WL 275589, at *5 (Tenn.Ct.App. May 27, 1997). The facts of this case fall squarely under this holding.

The decision of the trial court is affirmed. Costs are taxed against Defendant/Appellant Kelly Finneil, for which execution may issue if necessary.

        . Finnell contends that, in light of section 27.1, Lackey is no longer good law.