Fifth Third Bank v. Windhaven Shores, Inc. et al

Filing 59

MEMORANDUM AND ORDER: For the reasons stated herein, the Motion to Extend Judgment for an Additional Ten Years (Doc. No. 46 ) will be GRANTED. Accordingly, the Judgment in this case is hereby extended against Frances Williams, Jack Williams, and R alph Stevens for an additional ten years from the date of final judgment. The remaining Defendant against which Belay Capital seeks to extend the judgment is Windhaven Shores, Inc. Windhaven Shores, Inc. has not responded to the Motion. Accordingly, the Judgment in this case is also extended against Windhaven Shores, Inc. for an additional ten years. Signed by District Judge William L. Campbell, Jr on 4/26/2022. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(bs)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BELAY CAPITAL PARTNERS 1, LLC
as successor by assignment to FIFTH
THIRD BANK,
Plaintiff,
v.
WINDHAVEN SHORES, INC., et al.,
Defendants.

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NO. 3:10-cv-00034
JUDGE CAMPBELL
MAGISTRATE JUDGE HOLMES

MEMORANDUM AND ORDER
Pending before the Court is a Motion to Extend Judgment for Additional Ten Years
Pursuant to Fed. R. Civ. P. 69(A)(1) and Tenn. R. Civ. P. 69.04 filed by Plaintiff Belay Capital
Partners 1, LLC (“Belay Capital”), as successor by assignment to Fifth Third Bank. (Doc. No.
46). The Motion sought to extent the judgment as to Defendants Windhaven Shores, Inc., the
Estate of Phillip C. Saindon, Jr., Bonnie K. Saindon, the Estate of Ralph D. Stevens, the Estate
of Jack E. Williams, and Francis E. Williams (“Defendants”). (Id.). Plaintiff has since
withdrawn the motion as to the Estate of Phillip C. Saindon, Jr., and Bonnie K. Saindon. (Doc.
No. 54).
Francis Williams, on behalf of herself and as next of kin for Jack Williams, and Irene
Stevens, as next of kin to Ralph Stevens filed a response in opposition to extending the judgment
and a suggestion of death of Jack Williams and Ralph Stevens. (Doc. No. 49). Belay Capital
filed a Reply (Doc. No. 50). With leave of Court, Ms. Williams and Ms. Stevens filed a SurResponse (Doc. No. 57) and Belay Capital filed a Sur-Reply (Doc. No. 58).

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For the reasons stated herein, the Motion to Extend Judgment for an Additional Ten
Years (Doc. No. 46) will be GRANTED.
I.

BACKGROUND

On April 21, 2021, this Court entered Judgment in favor of Fifth Third Bank against
Windhaven Shores, Inc., Jerry D. Butler,1 Phillip C. Saindon, Jr., Bonnie K. Saindon, Ralph D.
Stevens, Jack Williams, and Francis E. Williams, jointly and severally, in the total amount of
Two Million One Hundred Eleven Thousand Nine Hundred Seventy Seven and 72/100
($2,111,977.72) (the “Judgment”). (Doc. Nos. 40, 41). On March 14, 2014, Fifth Third Bank
assigned the Judgment to Belay Capital.2
Belay Capital states that the Judgment in this case remains unsatisfied and requests the
Judgment be extended for an additional ten years under Tenn. R. Civ. P. 69.04.
II.

ANALYSIS

Rule 69(a)(1) of the Federal Rules of Civil Procedure provides that with regard to
judgments “the procedure on execution – and in proceedings supplementary to and in aid of
judgment or execution – must accord with the procedure of the state where the court is located,
but a federal statute governs to the extent it applies.” Fed. R. Civ. P. 69(a)(1). “Because there
is no specific federal statute of limitations on how long [a federal] judgment is effective, courts

1

Belay Capital executed a Partial Release of Judgment Lien releasing Jerry D. Butler from
Judgment in this case. See Doc. No. 46-3.

2

See Recorded Abstract of Judgment (Doc. No. 46-1 (June 27, 2011)); and Recorded Assignment
of Judgment (Doc. No. 46-2 (May 20, 2014)).

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look to state law.” Gibson Guitar Corp. v. Tokai Gakki Co., No. 3:04-cv-0449, 2019 WL
6332170, at *1 (M.D. Tenn. February 27, 2019).
In Tennessee, judgments last for ten years, but may be extended upon motion of the
judgment creditor. Tennessee Rule of Civil Procedure 69.04 provides:
Within ten years from the entry of a judgment, the creditor whose
judgment remains unsatisfied may file a motion to extend the judgment
for another ten years. A copy of the motion shall be mailed by the
judgment creditor to the last known address of the judgment debtor. If no
response is filed by the judgment debtor within thirty days of the date the
motion is filed with the clerk of court, the motion shall be granted without
further notice or hearing, and an order extending the judgment shall be
entered by the court. If a response is filed within thirty days of the filing
date of the motion, the burden is on the judgment debtor to show why the
judgment should not be extended for an additional ten years. The same
procedure can be repeated within any additional ten-year period.
Tenn. R. Civ. P. 69.04.
Belay Capital served a copy of the Motion to Extend Judgment on the Defendants. (See
Certificate of Service, Doc. No. 46 at 6). As stated above, Belay Capital does not seek to extend
the Judgment as to Jerry D. Butler, Bonnie D. Saindon, or the Estate of Phillip Saindon, Jr. (See
Doc. No. 46 at 2, n. 1 (Jerry D. Butler was released from the Judgment); Doc. No. 54
(withdrawing motion to extend judgment as to Bonnie D. Saindon and the Estate of Phillip
Saindon, Jr.)). Accordingly, the Court need only consider whether the judgment should be
extended as to the remaining Defendants – Windhaven Shores, Inc., Ralph D. Stevens, Jack E.
Williams, and Francis E. Williams.
Francis Williams, on behalf of herself and as next of kin for Jack Williams, and Irene
Stevens, as next of kin to Ralph Stevens filed a response in opposition to extending the judgment
and a suggestion of death of Jack Williams and Ralph Stevens. (Doc. No. 49). Williams and
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Stevens (hereinafter “Respondents”) argue that the judgment should not be extended because
the motion to extend the judgment is untimely. In addition, Respondents state that Jack
Williams and Ralph Stevens have died, and argue that the Judgment was extinguished
subsequent to their deaths.3 The Court considers these arguments, bearing in mind that the
burden to show why the judgment should not be extended is on the judgment debtors.
A. Timeliness
Respondents argue that the Motion to Extend Judgment is untimely because the date of
the judgment was not April 21, 2011, when the Court entered final judgment, but November
22, 2010, when the Court granted summary judgment. Belay Capital contends April 21, 2011,
is the correct date and that its motion, which was filed on March 18, 2021, is timely.
The course of events preceding entry of final judgment on April 21, 2011, is as follows.
On November 22, 2010, the Court Granted Plaintiff Fifth Third Bank’s Motion for Summary
Judgment. (Doc. No. 36). The Court ordered:
Plaintiff has established that there are no genuine issues of material fact
which would preclude summary judgment in its favor herein. Defendants
do not dispute that they owe this indebtedness.
Accordingly, Plaintiff’s Motion for Summary Judgment (Doc. No. 28) is
GRANTED, and judgment is entered against all Defendants except
Defendant Phillips in the amount of $2,013,925.85, plus interest accruing
at the rate of $1,255.73971 per day from September 27, 2010, until the
date of this Order.
The request for attorneys’ fees is DENIED without prejudice to being refiled in accordance with Rule 54.01(b) of the Local Rules of Court.

3

Respondents provided death certificates for Jack Williams and Ralph Stevens. (See Doc. Nos.
49 at PageID# 335-336).

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The bench trial set for May 10, 2011, and the pretrial conference set for
May 2, 2011, are canceled. Any other pending motions are denied as moot.
IT IS SO ORDERED.
(Doc. No. 36 at 3).
Plaintiff Fifth Third Bank thereafter moved for attorneys’ fees and expenses (Doc. No.
38), to alter or amend the judgment to add attorneys’ fees, and for entry of final judgment (Doc.
No. 39). On April 21, 2011, the Court Granted Plaintiff’s motion for attorneys’ fees and
expenses and amended the judgment to add $27,730.45 in fees and expenses. (Doc. No. 40). In
addition, specifically finding that there was “no just reason for delay,” the Court directed final
judgment be entered for Plaintiff as to all Defendants except Robert W. Phillips, Sr. (Id.). That
same day, the Clerk entered Judgment for purposes of Fed. R. Civ. P. 58(a) and/or 79(a) as to
all Defendants except for Robert Phillips Sr. (Doc. No. 41). On June 7, 2011, Plaintiff moved
to dismiss the claims against Robert Phillips Sr. (Doc. No. 42). Pursuant to this motion, the
Court dismissed Mr. Phillips without prejudice and directed the Clerk to close the file. (Doc.
No. 43).
The Parties agree that the “judgment” for purposes of Rule 69.04 of the Tennessee Rules
of Civil Procedure, is a final appealable order. This understanding comports with both the
Tennessee Rule of Civil Procedure 54.01, which defines a “judgment” to include “any decree
and any order from which an appeal lies,” and Federal Rule of Civil Procedure 54, which
includes “a decree and any order from which an appeal lies.”
The Federal Rules of Civil Procedure further provide that when an action has more than
one claim, or, as is the case here, multiple parties, “the court may direct the entry of a final

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judgment as to one or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). “Otherwise, any order
or other decision, however designated, that adjudicates fewer than all of the claims or the rights
and liabilities of fewer than all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.” Id.
Finally, with regard to the form of the judgment, the Rules require that, subject to
exceptions not applicable here, “[e]very judgment and amended judgment must be set out in a
separate document.”

“To satisfy the separate document requirement, a judgment must,

generally speaking, be a self-contained document, saying who has won and what relief has been
awarded, but omitting the reason for the disposition, which should appear in the court’s
opinion.” Manookian v. Flippin, No. 20-5979, 2021 WL 688841, at *2 (6th Cir. Jan. 5, 2021)
(quoting Local Union No. 1992 of Int’l Bhd. Of Elec. Workers v. Okonite Co., 358 F.3d 278,
284 (3d Cir. 2004)); see also, 12 Moore’s Federal Practice, § 58.05[4](a) (3d ed. 2000). Further,
to comply with the requirements of Rule 58, “the separate judgment should be as minimal as
possible” because “minimal judgments make clear when the time to appeal is at hand.” Id.
(quoting In re Cendant Corp. Sec. Litig., 454 F.3d 235, 245 (3d Cir. 2006)) and Okonite Co.,
358 F.3d at 284). Further, Rule 58 “should be interpreted to prevent the loss of the right of
appeal, not to facilitate loss.” Id. (citing Banker Trust Co. v. Mallis, 435 U.S. 381, 386 (1978)).
The Court’s November 22, 2010 Order is not a final appealable judgment because it did
not dispose of the rights and liabilities of all parties in the case – the claims against Robert W.
Phillips, Sr., who had filed for bankruptcy, remained unresolved. Accordingly, regardless of
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the outstanding issue of attorneys’ fees and expenses, the Court’s November 22, 2010 Order on
summary judgment did not entirely resolve the case and was not a final appealable order. It
was not until April 21, 2011, when the Court expressly found no cause for delay in entering
final judgment and directed the Clerk to enter final judgment, that judgment was final and
appealable for purposes of Fed. R. Civ. P. 58. Accordingly, Belay Capital’s Motion to Extend
Judgment, which was filed on March 18, 2021, is timely.
The case cited by Respondents, Ball v. McDowell, 288 S.W.3d 833 (Tenn. 2009), is
inapposite. Ball involved a curious situation in which the trial court entered two separate orders
of final judgment less than two weeks apart. Ball, 288 S.W.3d at 385. The second final
judgment was identical in substance to the first except that it included the signature of counsel
for the defendants. Id. at 837. The Ball court held that the first final judgment was final
appealable order and that the second final judgment, which did not affect the substantive rights
of the parties, did not restart the time to appeal. Id. at 838.
As discussed above, the Court’s November 22, 2010 Order was not an appealable
judgment because it did not dispose of all of the claims against all of the parties. Therefore, in
this case, the November 22, 2010 Order and the April 21, 2011 Order are not competing final
judgments. Only the April 21, 2011 Order is a final judgment and the time to extend the
judgment runs from that date. The Motion to Extend is, therefore, timely. Respondents’
objection to extending the judgment on grounds of untimeliness is without merit.
B. Extinguished by Death
Respondents assert that the judgments as to Jack Williams and Ralph Stevens expired
subsequent to their death and are “extinguished.” (Doc. No. 49 at 2). Belay Capital argues that
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the fact of Mr. Williams and Mr. Stevens passing does not extinguish the judgment against
them, noting that Tennessee law provides that a “judgment or decree may be revived by or
against the heirs of a deceased plaintiff or defendant.” Tenn. Code Ann. § 25-4-104.
Respondents next argue that they have complied with Federal Rule of Civil Procedure
25 and that the “causes of action were abated by their death.” The cited Rule applies to
substitution of parties in an ongoing action, and is inapplicable to issues surrounding
enforcement of the judgment.
Respondents also cite Tennessee statutes related to the continuity of actions pending at
the time of a person’s death and certain aspects of estate administration. (See Doc. No. 57 at 2
(citing Tenn. Code Ann. §§ 30-2-320, 30-2-306, 30-20-307)). These provisions are not relevant
to the issue now before the Court – whether the judgment should be extended. This case is no
longer “pending” and was not pending at the time of the deaths of Williams and Stevens. The
Tennessee law regarding continuity of pending actions is, therefore, inapplicable. Issues of
estate administration may be addressed by the probate court in the relevant jurisdiction.
Accordingly, the Court finds that the deaths of Ralph Stevens and Jack Williams are not
cause to deny Belay Capital’s Motion to Extend the Judgment.
III.

CONCLUSION

Respondents Frances Williams, for herself and as next of kin of Defendant Jack
Williams, and Irene Stevens, as next of kin to Defendant Ralph Stevens, have failed to show
that the judgment should not be extended for an additional ten years. Accordingly, the
Judgment in this case is hereby extended against Frances Williams, Jack Williams, and Ralph
Stevens for an additional ten years from the date of final judgment.
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The remaining Defendant against which Belay Capital seeks to extend the judgment is
Windhaven Shores, Inc.

Windhaven Shores, Inc. has not responded to the Motion.

Accordingly, the Judgment in this case is also extended against Windhaven Shores, Inc. for an
additional ten years.
It is so ORDERED.
___________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE

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