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Oceanics Schools3/14/2003
I.
This is a case with a long, interesting and unusual, factual background and procedural history. In the current litigation, the trial court limited the issues before it to the sole issue of whether Barbour was the alter ego of OSC. This case was tried against the background of its long history, which history was set forth by us in some detail in connection with an earlier appeal of the underlying litigation between the plaintiff and OSC. The pertinent portion of this history, as excerpted from our opinion in that case, is as follows:
[Barbour] formed , under the laws of Panama in 1965 for the purpose of acquiring ownership of, repairing, and operating the sailing vessel "Antarna." Barbour owned 100 percent of the shares of OSC, which purchased the sailing ship in 1967 and extensively repaired and restored it. In 1971, [the plaintiff] chartered the Antarna from for use as a school ship in exchange for [the plaintiff's] providing repairs and supplies to make the vessel operational.
[The plaintiff] invested approximately $630,000 in repairs and supplies for the Antarna and began using the vessel in its school program. In March 1972 reclaimed possession of the vessel in the Panama Canal Zone and subsequently sold the Antarna to a third party, who sailed the ship out of Panamanian waters to the Azores, Portugal. The proceeds of that sale were paid by to Barbour in repayment of "a portion of the loans to the corporation by [Barbour]."
[The plaintiff] filed suit against and the vessel by Writ of Attachment in the District Court of Ponta Delgada, Azores, Portugal, for breach of contract and obtained a judgment against for $929,815.55 plus interest. That Court then issued a Rogatory Letter to the Circuit Court for Knox County, Tennessee for seizure of properties of or any other persons as may be liable for the obligations of , and apparently identifying [Barbour], Dorothy Drake Barbour and David Barbour as directors and managers of .
[The plaintiff] filed its Complaint in Knox County Circuit Court to domesticate the Portuguese Judgment, and served summons on [Barbour] on May 15, 1995, through his attorney, Michael Fitzpatrick, who answered in this manner:
Both the Complaint and the Rogatory Letter attached thereto leave the impression that the domestication is against not only the named defendant, but also three individuals including [Barbour]. The judgment does not purport to do so. To the extent that the Complaint attempts to do so, the Judgment is void and of no force or effect for the failure to serve process; comply with due process; or to name [Barbour] as a party in the final judgment.
By Order of the Circuit Court for Knox County, the Portuguese Judgment against was domesticated on March 26, 1997. However, upon execution of that judgment, no assets of were found. After discovery by [the plaintiff] submitted to and answered by , [the plaintiff] filed a "Motion for Issuance of Writ of Execution or, Alternatively, to Amend the Complaint to Add a Party Defendant," on December 1, 1998, asking the Circuit Court to issue a writ of execution against the real and personal property of [Barbour] or allow [the plaintiff] to amend the domestication Complaint to add Barbour as a party-defendant. For grounds, [the plaintiff] alleged that Barbour owned 100 percent of the shares of , that he was at all times a director and secretary/treasurer of that corporation, that he failed to adequately capitalize the corporation, and that he made personal loans to the corporation to gain an unlawful preference as a purported creditor over future creditors such as [the plaintiff]. Further, [the plaintiff] alleged that
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