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Oceanics Schools3/14/2003
Barbour contends that when the trial court allowed the plaintiff to assert the OSC judgment against a non-party, i.e., Barbour, it improperly permitted the plaintiff to utilize a doctrine not recognized in Tennessee - offensive non-mutual collateral estoppel - against him. Barbour also claims that the trial court erred when it refused to permit him to assert defenses of no debt due the plaintiff from OSC, due process, laches and the fact that the OSC judgment was based upon an in rem proceeding in Portugal and was not based upon in personam jurisdiction over OSC. He also argues that there was a failure of proof on the part of the plaintiff in that it failed to prove applicable Panamanian law.
Barbour's multi-faceted attempt to upset the OSC judgment and thereby bar its imposition upon him misses the mark and misconstrues what this litigation is about and, more importantly, what it is not about. Barbour's other self - OSC - had ample due process and a full opportunity to litigate the pertinent issues, first in the protracted litigation in Portugal and, later, as to the Portuguese judgment in the domestication action in circuit court. We now have before us a final and enforceable Tennessee judgment against OSC. Since the trial court has determined that Barbour is OSC's other self and since we find no error in that finding, there is now in place a final and enforceable Tennessee judgment against Barbour. He is not a legally separate entity from OSC. See Matthews, 796 S.W.2d at 694. See also Passalacqua, 608 F. Supp. at 1264 (". . . the corporation and those who have controlled the corporation are treated as one entity.").
We find no merit in Barbour's assertion that Panamanian law is relevant on the question of whether the corporate veil can be pierced in this case. We are dealing now with a Tennessee judgment. The law of Tennessee is applicable in determining the efficacy and parameters of the piercing of the corporate veil theory.
We also find no merit in Barbour's argument that the plaintiff unreasonably delayed in pursuing the domestication of the Portuguese judgment and the filing of the instant action against Barbour. He makes this argument in support of his assertion that the present action should be barred by the doctrine of laches. The record supports the following assertion of the plaintiff:
The passage of time complained of at length in Barbour's Brief can be attributed to Barbour himself. From the date of the judgment obtained by [the plaintiff] in Portugal through 1993, OSC and [the plaintiff] were involved in post-judgment litigation initiated by OSC in the Portuguese courts. OSC appealed the judgment to the Supremo Tribunal de Justica in Lisbon, the highest court in Portugal, which dismissed the appeal with prejudice against OSC on April 29,1993. From 1993 to 1995, the judgment in the Azores went through a process to become a final Portuguese judgment and was being consularized for domestication in Tennessee. [The plaintiff] then filed its Complaint to domesticate the judgment in the Circuit Court for Knox County, Tennessee.
We find the issue of laches adverse to Barbour.
Barbour raises a number of issues pertaining to the exclusion, in whole or in part, of certain exhibits. Suffice it to say that we find no error in the trial court's rulings with respect to these exhibits. Certainly, we cannot say that any of these rulings, viewed singularly or in a cumulative manner, even if erroneous, involve a substantial right that more probably than not affected the outcome of this case. See Tenn. R. App. P. 36 (b).
VIII.
Finally, Barbour claims that the plaintiff is guilty of unclean hands in failing to advis
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