Summary
vacating Michigan default judgment, predicated on contract procured by fraud, because Sanwa, which tried to domesticate the judgment under O.C.G.A. § 9-12-130, failed to show that the Michigan court had personal jurisdiction over Hunt or his company
Summary of this case from Patray v. Northwest Pub., Inc.Opinion
A94A1703.
DECIDED OCTOBER 14, 1994.
Default judgment. Hall Superior Court. Before Judge Girardeau.
Walden G. Housman, Jr., for appellant.
Carey, Deal, Jarrard Walker, Tom Jarrard, for appellees.
Sanwa Leasing Corporation obtained a default judgment against Stan Hunt and Stan Hunt Construction Company, Inc. in Michigan. It then sought to domesticate that judgment in Hall County, Georgia, pursuant to OCGA § 9-12-130 et seq. Appellees moved to vacate or set aside the foreign judgment, alleging the Michigan court lacked jurisdiction over them and the judgments were predicated upon a contract procured by fraud. The trial court granted appellees' motion, and Sanwa brings this appeal.
We affirm. First, Sanwa's contention that the trial court based its grant of appellees' motion upon Sanwa's failure to respond is belied by the trial court's order, which states that the motion was considered by the court.
Second, addressing the merits of the appeal, when suit is brought to domesticate a foreign judgment, that judgment may be attacked collaterally on the ground that the foreign court in which the judgment was obtained lacked personal jurisdiction over the defendants. If the foreign judgment was obtained by default, no presumption of personal jurisdiction exists, and the burden is on the party seeking to domesticate the judgment to negate the defense of lack of jurisdiction. Brown v. U.S. Fidelity c. Co., 208 Ga. App. 834, 835 (2) ( 432 S.E.2d 256) (1993).
Sanwa states in its brief that its burden was satisfied by paragraph 18 of the lease contract on which the Michigan action was based. However, that contract is not a part of the record. The burden is on appellant to show error by the record; we cannot consider statements in the brief in lieu of the record. See Arnold v. Brundidge Banking Co., 209 Ga. App. 278, 279 ( 433 S.E.2d 388) (1993).
We note, however, that paragraph 18, as recited in Sanwa's brief, is not a "forum selection" clause such as has been held sufficient to negate lack of jurisdiction. See Regency Mall Assoc. v. G. W's Restaurant, 213 Ga. App. 225 ( 444 S.E.2d 572) (1994); Brown, supra. It is merely a "choice of law provision," providing that in case of conflict of laws, Michigan law must be used.
Since the record fails to reveal any evidence to the contrary, we must assume that the trial court's ruling was correct. Sycamore Pellet Systems v. Southeastern Steam, 196 Ga. App. 717, 718 (2) ( 397 S.E.2d 6) (1990).
Judgment affirmed. Pope, C. J., and McMurray, P. J., concur.