The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 22, 2004 Session
SEILLER & HANDMAKER, L.L.P. and GLEN COHEN v. KELLY
FINNELL
An Appeal from the Circuit Court for Shelby County
No. 306486TD Kay S. Robilio, Judge
No. W2002-02593-COA-R3-CV - Filed October 27, 2004
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.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J. and DAVID
R. FARMER , J., joined.
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
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 (“Finnell”), 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 $3,800 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.
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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 our 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 Finnell. 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
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argument and enrolled Cohen’s Kentucky judgment against Finnell. 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., 206 S.W.2d 806 (Tenn. App. 1946), and maintains that Cohen’s claim against Finnell would be
permitted in Tennessee.1 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. Ct. App.
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
1
Finnell contends that, in light of section 27.1, Lackey is no longer good law.
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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. August 3, 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 their
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 “promote[s] 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.
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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 Finnell, 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 Finnell, 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
Finnell, for which execution may issue if necessary.
___________________________________
HOLLY M. KIRBY, JUDGE
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