Opinion
14-P-1023
07-13-2015
SCHWEBEL BAKING COMPANY v. THOMAS J. KINCH.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Thomas J. Kinch appeals from the entry of summary judgment in favor of Schwebel Baking Company (Schwebel) on Schwebel's complaint for enforcement of an Ohio judgment against Kinch and his company, Skeye Systems, Inc. (Skeye). We affirm.
Background. The summary judgment record reflects the following undisputed material facts. Schwebel sued Kinch and Skeye in the Mahoning County, Ohio, Common Pleas Court, for the return of $399,987 it had paid to them. Kinch appeared and defended himself in that suit. On March 11, 2011, Schwebel obtained a judgment against the defendants in the amount of $369,987 (the Ohio judgment). Kinch filed a notice of appeal from the judgment one day beyond the thirty days allowed under Ohio App. R. 4(A). Neither defendant paid the Ohio judgment.
On July 18, 2011, Schwebel filed a complaint in Middlesex County Superior Court for enforcement of the Ohio judgment. On July 21, 2011, Kinch filed a voluntary petition for bankruptcy in the Massachusetts District of the United States Bankruptcy Court. On August 23, 2011, Schwebel filed an adversary proceeding in Kinch's bankruptcy action, objecting to the dischargeability of the debt to Schwebel. On September 6, 2011, the Seventh Appellate District of the Ohio Court of Appeals dismissed Kinch's appeal from the Ohio judgment for failure to file a timely notice of appeal.
The Court of Appeals later vacated this dismissal because it was done while Kinch's bankruptcy petition was pending, in violation of the automatic stay imposed pursuant to 11 U.S.C. § 362.
On March 13, 2012, Schwebel requested a stay of the Middlesex Superior Court proceedings pending resolution of the adversary proceeding in Bankruptcy Court. On May 2, 2013, the Bankruptcy Court granted Schwebel relief from the automatic stay. Schwebel again moved in the Ohio Court of Appeals for dismissal of Kinch's appeal from the Ohio judgment. On May 29, 2013, the Court of Appeals allowed the motion, and Kinch's appeal was dismissed. On August 29, 2013, the Bankruptcy Court ruled that the debt to Schwebel was nondischargeable.
On March 3, 2014, Schwebel moved in Superior Court for summary judgment on its complaint for enforcement of the Ohio judgment. On April 2, 2014, after hearing, the motion was allowed, and judgment entered for Schwebel in the amount of $369,987, plus interest in the amount of $120,180.94 and costs. Kinch timely appealed.
Because the motion judge determined that nothing in the record suggested that Skeye was served or appeared in the Middlesex County action, Schwebel proceeded only against Kinch on its motion for summary judgment (although the judgment that was entered named both defendants.) In any event, only Kinch filed a notice of appeal.
Discussion. "In the absence of certain defenses directed at the validity of a final judgment of a sister State, Massachusetts will recognize and enforce that judgement." First Natl. Bank of Houma v. Bailey, 29 Mass. App. Ct. 193, 197 (1990). Indeed,
"[t]here is no question that the full faith and credit clause of the United States Constitution, art. IV, § 1, requires Massachusetts courts to recognize a final judgment obtained in another State as long as the judgment-rendering State possessed personal jurisdiction over the parties and jurisdiction over the subject matter of the action in which the judgment was rendered."Bishins v. Richard B. Mateer, P.A., 61 Mass. App. Ct. 423, 428 (2004). See 28 U.S.C. § 1738.
Kinch makes no argument that the Ohio court lacked personal or subject matter jurisdiction, and the duly authenticated record of judgment from the Ohio court provides prima facie evidence of that court's jurisdiction. Makorios v. H.V. Greene Co., 256 Mass. 598, 599 (1926). Instead, Kinch argues that summary judgment was inappropriate because his appeal from the Ohio judgment was pending when Schwebel filed its complaint in Middlesex Superior Court. However, the record shows that the Seventh District of the Court of Appeals of Ohio determined that Kinch's notice of appeal from the Ohio judgment was not timely under Ohio App. R. 4(A), and that Kinch did not submit a memorandum demonstrating that appellate jurisdiction had been properly invoked. The Ohio Court of Appeals therefore lacked jurisdiction to hear Kinch's appeal, In re H.F., 120 Ohio St. 3d 499, 505 (2008), and the Ohio judgment became final before Schwebel filed its complaint in Massachusetts. See Ohio Rev. Code § 2505.02 (B)(1) ("An order is a final order . . . when it . . . affects a substantial right in an action that in effect determines the action and prevents a judgment"). There being no dispute regarding these material facts, the Ohio judgment is entitled to full faith and credit, and summary judgment properly entered.
While Kinch argues that he did not receive notice of the proceedings on appeal from the Ohio judgment, he does not argue that that court lacked jurisdiction in the first instance. Instead, "[t]he record [shows] that the defendant appeared, pleaded, and [the] issue was joined," therefore, "the presumption of regularity stands." Makorios, supra at 599-600.
Judgment affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 13, 2015.