Opinion
No. CV10 6016432S
July 21, 2011
MEMORANDUM OF DECISION
FACTS
On December 9, 2010, the plaintiff, Ahmad, Zavitsanos Anaipakos, P.C., a Texas law firm, filed a six-count complaint against the defendants, Chadwick Dawson and Mike Criscio. In count one of its complaint, the plaintiff alleges that it brought a legal action against Dawson in the District Court of Harris County, Texas in September 2009 to obtain unpaid professional fees rendered under a contract with Dawson. The plaintiff alleges that Dawson was served in accordance with Texas law and that the Texas court had personal jurisdiction over him. On April 19, 2010, after Dawson failed to appear in that action, the Texas court entered a default judgment against him in the amount of $49,897.52. The plaintiff asserts that the Texas judgment is entitled to full faith and credit under the United States constitution and that this court should enforce the judgment against Dawson.
On March 15, 2011, the plaintiff withdrew counts three, four, five and six of the complaint.
In count two, the plaintiff alleges an identical claim against Criscio, but asserts that the default amount entered against him is $45,962.98 and that it was entered on December 10, 2009. In an answer filed on February 18, 2011, both defendants deny that they were served with process according to Texas law and deny that the Texas court had personal jurisdiction over them. Additionally, both defendants deny that the Texas judgment is entitled to full faith and credit.
On March 8, 2010, the plaintiff filed the present motion for summary judgment asserting that it is entitled to judgment as a matter of law on counts one and two of the complaint. It also submitted a memorandum of law, along with several exhibits. On May 23, 2011, before the plaintiff's motion was heard on the short calendar and before the defendants filed an objection to the motion for summary judgment, the defendants filed a motion for permission to file special defenses. The court granted the defendants' motion on June 7, 2011. The plaintiff filed a supplemental memorandum in support of its motion for summary judgment on May 26, 2011, and the defendants filed an objection to the motion for summary judgment on May 27, 2011. This matter was heard at the May 31, 2011 short calendar.
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
In its memorandum in support of the motion for summary judgment, the plaintiff asserts that it brought this action pursuant to General Statutes § 52-607. The plaintiff argues that trial courts have granted motions for summary judgment enforcing foreign judgments obtained by default "when there were no grounds for questioning the foreign court's jurisdiction." In support of its motion, the plaintiff submits: (1) an affidavit of John Zavitsanos, a partner in the plaintiff law firm; (2) two affidavits regarding service on Criscio; (3) an affidavit regarding service on Dawson; (4) a certified copy of the order entered against Criscio from the District Court of Harris County, Texas; (5) a certified copy of the order entered against Dawson from the District Court of Harris County, Texas; and (6) an affidavit of Bruce Matzkin, the plaintiff's counsel in the present matter.
On May 23, 2011, the defendants filed a motion for permission to file special defenses, which the court granted on June 7, 2011. In their first special defense, the defendants allege that they "were not subject to the personal jurisdiction of the Texas court and the judgment obtained by default is void per lack of personal jurisdiction." In their second special defense, the defendants allege that: "The plaintiff's action is barred by the due process clause of the 14th Amendment of the United States Constitution because the Texas court, where the default judgment for failure to appear was obtained, lacked personal jurisdiction over the defendants . . . because the Texas court failed to make an explicit finding that the Texas court had personal jurisdiction."
After the defendants filed their motion for permission to file special defenses, the plaintiff filed a supplemental memorandum of law. In that memorandum, the plaintiff refutes the defendants' special defenses. The plaintiff argues that its exhibits establish that the defendants were properly served and that the Texas court had jurisdiction over them. Moreover, the plaintiff argues that it did not have to serve the defendants under the Texas long arm statute. Rather, the plaintiff asserts that service of process was permissible and accomplished through personal service under Texas Rules of Civil Procedure 108 and 106.
In their memorandum in opposition to the motion for summary judgment, the defendants argue that there are a number of material facts in dispute that prevent the court from granting the plaintiff's motion for summary judgment. First, the defendants assert that they dispute the plaintiff's claim for legal fees and argue that both the Connecticut appellate courts and the United States Supreme Court have not enforced foreign judgments "when there exists a fundamental dispute about the claim and the claim has not been tried on the merits." The defendants cite Maltas v. Maltas, 298 Conn. 354, 2 A.3d 902 (2010), and J. Corda Construction, Inc. v. Zaleski Corp., 98 Conn.App. 518, 911 A.2d 309 (2006), in support of this proposition. Second, the defendants assert that the Texas court failed to make "an explicit finding of jurisdiction over" them. Third, the defendants note that Criscio disputes that service was ever made on him. Finally, the defendants argue that "the granting of summary judgment . . . would be a fundamental [deprivation] of the due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution . . ." In support of their memorandum in opposition, the defendants submit: (1) a copy of their motion for permission to file special defenses; (2) a copy of section 17.044 of the Texas Civil Practice Remedies Code, which governs substituted service on the secretary of state; and (3) an affidavit of Michael Criscio, Jr.
In his affidavit, Criscio attests, inter alia: "Chad Dawson and myself were never provided with legal bills claiming the amount of damages in the amount of $38,962.92, as provided in the plaintiff's motion for summary judgment . . . I dispute the amount or debt claimed by the plaintiff . . . The plaintiff indicated an affidavit of service signed by Michael Walton that Mike Criscio was served on November 6, 2009 at 3:05 p.m. at the XL Center in Hartford, Connecticut whereby a Caucasian male with brown hair, age 40, 6'2, and 255 pounds was served. I did not receive service as indicated in Michael Walton's affidavit. Furthermore, at that time and date I was 6 ft. tall and weight 270 . . . I was never served the underlying matter in Texas according to the default judgment obtained in Texas. I desire to be heard on the merits of this case."
"Under appropriate circumstances, General Statutes § 52-607 authorizes a foreign judgment creditor to seek the enforcement of a judgment in this state even if that judgment was entered by default in the foreign state." Regents of the University of California v. Golf Marketing, LLC, 92 Conn.App. 378, 379, 885 A.2d 201 (2005). General Statutes § 52-607 provides: "The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52-604 to 52-609, inclusive, remains unimpaired."
General Statutes §§ 52-604 through 52-609 are known as the Uniform Enforcement of Foreign Judgments Act. Section 52-604 provides: "As used in sections 52-604 to 52-609, inclusive, `foreign judgment' means any judgment, decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state, except one obtained by default in appearance or by confession of judgment." General Statutes § 52-605 governs the filing of foreign judgments not obtained by default in appearance, and General Statutes § 52-606 governs the grounds for stay of enforcement.
The validity of a foreign judgment in Connecticut implicates the full faith and credit clause of the United States constitution. "The full faith and credit clause of the United States constitution provides in relevant part that `Full Faith and Credit shall be given in each State to the judicial Proceedings of every other State . . .' U.S. Const., art. IV, § 1." Business Alliance Capital Corp. v. Fuselier, 88 Conn.App. 731, 736, 871 A.2d 1051 (2005). "As a general principle, the full faith and credit clause of the United States constitution permits a creditor who has obtained a judgment in one state to enforce that judgment in this state." Id., 732-33. "Only in a select few situations may courts set aside their obligation to afford full faith and credit to final judgments of foreign courts. In particular, a debtor who seeks to challenge the validity of a foreign judgment that has been registered properly in this state may do so only by raising [c]onstitutionally permissible defenses that . . . destroy the full faith and credit obligation owed to a foreign judgment." (Internal quotation marks omitted.) Id., 736. "A party can therefore defend against the enforcement of a foreign judgment on the ground that the court that rendered the judgment lacked personal jurisdiction, unless the jurisdictional issue was fully litigated before the rendering court or the defending party waived the right to litigate the issue." Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 56, 570 A.2d 687 (1990).
In Maltas v. Maltas, 298 Conn. 354, 367, 2 A.3d 902 (2010), the Connecticut Supreme Court concluded that a trial court erred in granting a plaintiff's motion for summary judgment brought under § 52-607 to enforce a default judgment entered in Alaska. The defendant argued that the Alaska court lacked personal jurisdiction over him. Id. 363. In reaching its conclusion that the trial court erred in granting summary judgment, the court stated: "[T]he defendant, in opposing the plaintiff's motion for summary judgment, would have been obligated to come forward with evidence only if the plaintiff first had made out a prima facie case that the Alaska court properly had exercised personal jurisdiction. We conclude that the plaintiff failed to present evidence to eliminate any factual dispute in that regard and, therefore, that the trial court improperly shifted the burden to the defendant to produce evidence to show that an issue of fact existed.
"The trial court apparently concluded that the plaintiff had eliminated any factual dispute over whether personal jurisdiction attached simply by proving that the defendant properly had been served with process. Although adequate service of process is necessary for a state to obtain jurisdiction over an out-of-state party, it is not sufficient . . . This is because the due process clause of the fourteenth amendment to the United States constitution places additional limits on the power of the states to assert personal jurisdiction over nonresident defendants . . .
"The question of whether another state's court properly exercised personal jurisdiction is determined with reference to the law of that state." (Citations omitted.) Id., 367. After analyzing whether the Alaska court's exercise of personal jurisdiction comported with Alaska law, the court stated: "Here, the plaintiff provided no evidence to demonstrate that some portion of Alaska's long arm statute unquestionably had been satisfied or that the Alaska court's exercise of jurisdiction otherwise complied with the foregoing due process requirements. Accordingly, the defendant was under no obligation to produce countervailing evidence in order to survive summary judgment . . .
"The trial court apparently concluded that, because as a general matter, foreign judgments are presumed valid and the burden of proving that the foreign court lacked jurisdiction lies with the assailant . . . it was necessary for the defendant, at this stage of the proceedings, to satisfy that burden. We disagree with that determination. Rather, the burden of proof on a motion for summary judgment remains with the moving party even when, as here, the nonmoving party will bear the burden of persuasion at trial. Although the burden of setting aside [a foreign default] judgment rests upon the party against whom it is sought to be enforced . . . where the personal jurisdiction issue is resolved on summary judgment, it is the moving party's burden to establish that there is no genuine issue of material fact, and an entitlement to prevail as a matter of law." (Citations omitted; internal quotation marks omitted.) Id., 369-70.
In the present matter, the court is faced with the validity of a foreign judgment brought under § 52-607. As in Maltas, the plaintiff in the present matter seeks to enforce a default judgment on a motion for summary judgment, and the defendants challenge the foreign state's personal jurisdiction. Under Maltas, the court must determine whether the Texas court properly exercised jurisdiction under Texas law.
"[S]ervice under [Texas Rule of Civil Procedure] 108 does not, by itself, confer jurisdiction over non-resident defendants. However, Rule 108 is a valid procedural alternative to service under the long-arm statute . . . [Additionally,] [s]o long as the allegations confronting [a non resident defendant are] sufficient to satisfy due process requirements, the trial court [has] jurisdiction to render judgment by default against [a non resident defendant]. The only question, then, is whether the jurisdictional allegations in the petitions were sufficient, under the Constitution of the United States, to require [the non resident defendant] to answer." (Citations omitted.) Paramount Pipe Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 495-96 (Tex. 1988).
In the present matter, the parties dispute whether service is proper under Texas Rules of Civil Procedure 108 and 106, or whether the plaintiff was required to serve the defendants under the Texas long arm statute. According to Paramount Pipe, service under Texas Rule of Civil Procedure 108 is a "valid procedural alternative to service under the long-arm statute." Paramount Pipe also stands for the proposition that valid service is not enough to establish personal jurisdiction. To satisfy constitutional due process requirements, Texas law requires that the pleadings establish a sufficient jurisdictional basis. In the present matter, although the plaintiff submits affidavits attesting to service on the defendants, as well as certified copies of the orders entered against the defendants, the plaintiff fails to submit the underlying petition from the Texas action. Without this information, the court cannot conclude that the jurisdictional allegations in the petition were sufficient under the United States constitution, as required by Texas law, for the defendants to answer. As a result, material issues of fact remain, and the court denies the plaintiff's motion for summary judgment.
It appears that Texas Rule of Civil Procedure 106 is also a valid alternative to service under the long arm statute. See generally Heth v. Heth, 661 S.W.2d 303, 305 (Tex.App. 1983).
CONCLUSION
For all of the foregoing reasons, the court denies the plaintiff's motion for summary judgment.