Opinion
No. CV 06 50006819
March 31, 2008
MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT (#122), MEMORANDUM IN OPPOSITION (#119) AND REPLY TO OBJECTION (#121)
Before this court is the plaintiff's Amended Motion for Summary Judgment, dated December 21, 2007 (#122), which was preceded by a Motion for Summary Judgment filed by the plaintiff on August 9, 2007 (#113); and a Memorandum in Opposition to the Motion for Summary Judgment filed by the defendant on December 12, 2007 (#119). The plaintiff also filed a Reply to the Defendant's Objection, dated December 26, 2007 (#121). The current Amended Motion for Summary Judgment incorporates the Memorandum of Law in Support of the original Motion for Summary Judgment.
FACTS
On October 16, 2006, the plaintiff Universal Steel Erectors, Inc., filed a nine-count complaint against the defendant, Willard Finkle, claiming breach of contract, conversion, embezzlement, larceny, obtaining property by false promise, statutory theft, tortious interference with business expectancy, a violation of CUTPA and negligence. The plaintiff amended the complaint on January 26, 2007, to add a tenth count seeking to enforce a New Hampshire judgment entered for the plaintiff on August 21, 2006. The plaintiff which is a New Hampshire corporation, had brought an action in New Hampshire against Nexus Payroll Services, Inc., and Finkle, who, the plaintiff alleges, is Nexus Payroll's president.
The New Hampshire court rendered a judgment against both defendants in the amount of $389,111.04, plus $191 in costs.
The defendant filed an answer on July 3, 2007, in which he asserts as a special defense that the New Hampshire judgment is invalid for lack of personal jurisdiction.
On August 9, 2007, the plaintiff filed a motion for summary judgment (#113) on the tenth count. This court, Lopez, J., partially granted the motion on the papers on September 14, 2007. The defendant then moved to open the judgment (#116) on October 30, 2007. The court, Lopez, J., granted the motion to open on November 27, 2007. The defendant then filed a memorandum of law in opposition to the motion for summary judgment. Finally, the plaintiff filed the amended motion for summary judgment that is now before the court. The matter was argued at short calendar on January 7, 2008.
The amended motion before the court, #122, differs from the first motion for summary judgment, #113, in the amount requested. The plaintiff asks that the judgment amount be changed to reflect a payment of $35,728.40 received and $51,627.35 in additional interest accrued, for an overall judgment of $405,199.99.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "[T]he 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
The plaintiff moves for summary judgment on count ten of the amended complaint on the ground that there are no genuine issues of material fact, and therefore, as a matter of law, it is entitled to judgment in its favor. In support of its motion, the plaintiff argues that the judgment rendered by the New Hampshire Superior Court is a valid, final judgment, unpaid by the defendant and owed to the plaintiff under the full faith and credit clause of the United States Constitution. The plaintiff offers a "certified copy of New Hampshire judgment," an affidavit of service, an affidavit of debt and an affidavit of interest as evidence. The plaintiff argues that these arc all sufficient to demonstrate that there are no genuine issues regarding the fact that the defendant was properly served according to the New Hampshire Longarm statute, and that the New Hampshire court entered a judgment for the plaintiff.
This document is a statement, dated May 25, 2007, from the clerk of the court (superior Court, Northern District of Hillsborough County, New Hampshire) certifying that the plaintiff recovered judgment in an action of debt against Nexus Payroll and Finkle. It does not indicate whether the judgment was obtained by default.
New Hampshire Revised Statutes Annotated section 510:4 provides in relevant part: "Service of process upon any person who is subject to the jurisdiction of this state, as provided in this section, may be made by leaving a copy thereof, with a fee of $10, in the hands or office of the secretary of state. Such service shall be of the same legal force and effect as if served on the defendant at his abode or place of business in the state or country where he resides and according to the law of that state or country, provided that notice thereof and a copy of the process is forthwith sent by registered mail, postage prepaid, by the plaintiff or his attorney to the defendant at his last known abode or place of business in the state or country in which the defendant resides. The defendant's return receipt and an affidavit of the plaintiff or his attorney of compliance with the section shall be appended to the process and entered therewith. In the event that the notice and a copy of the process are not delivered to or accepted by the defendant, the court may order such additional notice, if any, as justice may require." The plaintiff has included with the motion for summary judgment the affidavit of the plaintiff's attorney that service was made in compliance with the statute and a photocopy of the defendant's return receipt.
The defendant argues, in opposition, to the motion that because the New Hampshire judgment was rendered on default for failure to appear, he is entitled to collaterally attack the judgment for lack of personal jurisdiction. In support of his position, the defendant submits a memorandum of law and his own affidavit.
A judgment creditor may seek to enforce a foreign judgment in Connecticut under the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 to § 52-609. Section 52-604 excludes from the definition of "foreign judgments" those judgments which are based upon default of appearance. Thus, when a judgment is based upon default of appearance, the party seeking to enforce the judgment must proceed by way of an independent action on a judgment. See Regents of the University of California v. Golf Marketing, 92 Conn.App. 378, 379, 885 A.2d 201 (2005); Seaboard Surety Co. v. Waterbury, 38 Conn.Sup. 468, 471-72, 451 A.2d 291 (1982). This action on a judgment allows a debtor to collaterally attack the foreign judgment by establishing facts that would render the foreign judgment void. Seaboard Surety Co. v. Waterbury, supra, 38 Conn.Sup. 472.
General Statutes § 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 § 52-607 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."
The validity of the New Hampshire 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, 735 n. 1, 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).
"To determine whether a foreign court lacked jurisdiction, we look to the law of the foreign state." Business Alliance Capital Corp. v. Fuselier, supra, 88 Conn.App. 737. New Hampshire's longarm statute, N.H. REV. STAT. ANN. § 510:4 (2008), provides in relevant part: "Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above." "For jurisdictional purposes, a party commits a tortious act within the State when the injury occurs in New Hampshire even if the injury is the result of acts outside the State." Thomas v. The Telegraph Publishing Co., 151 N.H. 435, 437, 859 A.2d 1166 (2004).
"A defendant's claim that a foreign court lacked jurisdiction over it does not automatically preclude a summary judgment to enforce the foreign judgment . . . Connecticut law allows the court to look beyond a defendant's mere claim to ascertain if a genuine issue of material fact exists as to personal jurisdiction, and, if there is none, to enforce a foreign judgment." (Citation omitted; internal quotation marks omitted.) Tuition Finance Group, Inc. v. D L Tractor Trailer School, Superior Court, judicial district of New Haven, Docket No. CV 990432471 (August 16, 2000, Zoarski, J.).
In his affidavit, dated December 11, 2007, the defendant avers that he "personally conducted no business with the plaintiff in New Hampshire or anywhere else," ¶ 14; and "did not personally direct or authorize any activities in New Hampshire regarding the plaintiff's accounts or funds," ¶ 13; or "advise anyone within the state of New Hampshire to take any specific action in regard to the plaintiff's funds," ¶ 13. Furthermore, he states that he did not "authorize or approve any tortious conduct on the part of [Nexus Payroll]," ¶ 9; "authorize [Nexus Payroll] or any representative of it to make any false, inaccurate, or negligently inaccurate statement within the state of New Hampshire," ¶ 10; "make any personal representations of any kind to the Plaintiff herein," ¶ 11; "purposefully direct the actions of [Nexus Payroll] as concerned any actions of it toward the Plaintiff," ¶ 16; or "participate in any act of tortious conduct in the State of New Hampshire in connection with the named plaintiff at any time," ¶ 17. He also asserts that neither Nexus Payroll nor any of its employees acted as his personal agent in New Hampshire. ¶ 15.
"In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Johnson v. Atkinson, supra, 283 Conn. 253. Though there is no dispute that judgment was entered against the defendant by the New Hampshire court, the plaintiff has presented no facts or evidence to contradict the defendant's claims regarding his lack of contact with and/or conduct within New Hampshire. So, although the defendant's affidavit provides somewhat conclusory statements, viewed in the light most favorable to the defendant, his averments are enough to indicate the existence of a genuine issue of material fact as to whether or not the New Hampshire court could properly exercise jurisdiction over him.
Furthermore, the plaintiff has not established that the defendant is not entitled to challenge the New Hampshire court's jurisdiction in the present action. The plaintiff's argument that the defendant waived his right to raise jurisdictional challenges because service was proper in the New Hampshire action, and because he did not challenge it in New Hampshire is not persuasive. The New Hampshire Supreme Court has held that "[p]roper service of process is a necessary prerequisite to obtaining jurisdiction over an out-of-state defendant." South Down Recreation Assoc. v. Moran, 141 N.H. 484, 486, 686 A.2d 314 (1996). Moreover, "an objection to service or notice is waived when a party, by general appearance or otherwise, submits any other question, except the sufficiency of service or notice, to the court . . . [J]urisdictional issues will be deemed to have been waived unless they are fully litigated prior to the determination of any substantive issues." (Citations omitted; internal quotation marks omitted.) Druding v. Allen, 122 N.H. 823, 826, 451 A.2d 390 (1982). There is no evidence before this court suggesting that the defendant waived the issue of jurisdiction by submitting any question to the New Hampshire court.
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist." (Internal quotation marks omitted.) Dubinsky v. Citicorp Mortgage, Inc., 48 Conn.App. 52, 55, 708 A.2d 226 (1998). The defendant has shown the existence of a genuine issue of material fact as to whether the New Hampshire court had personal jurisdiction when it entered judgment against him. Accordingly, this court denies the plaintiff's motion for summary judgment on count ten of its amended complaint.