Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc.

Citation734 F.2d 639
Decision Date18 June 1984
Docket NumberNo. 83-8337,BORG-WARNER,83-8337
PartiesACCEPTANCE CORP., a Delaware Corporation, Plaintiff-Appellee, Cross-Appellant, v. LOVETT & THARPE, INC., a Georgia Corporation, Defendant-Appellant, Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

James Stanley Smith and Francis M. Lewis, Dublin, Ga., for defendant-appellant, cross-appellee.

Michael L. Wetzel, Atlanta, Ga., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Georgia.

Before RONEY and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

Borg-Warner Acceptance Corporation (BWAC), a Delaware corporation, filed suit against Lovett & Tharpe, Inc., a Georgia corporation, in a Missouri state court in 1982. Lovett & Tharpe received notice of the suit but failed to appear and defend. The Missouri court subsequently entered a default judgment in favor of BWAC after concluding that Lovett & Tharpe had conducted sufficient business in Missouri to subject it to in personam jurisdiction. The present diversity action began several months later when BWAC filed suit against Lovett & Tharpe in the District Court for the Southern District of Georgia in an attempt to domesticate and collect the Missouri judgment. Lovett & Tharpe opposed a motion for summary judgment by BWAC on the grounds that the Missouri court lacked in personam jurisdiction, rendering the default judgment void and unenforceable. The district court, 560 F.Supp. 905, concluded that the Missouri judgment acted as res judicata to any dispute concerning in personam jurisdiction and granted summary judgment against Lovett & Tharpe. We reverse and remand for the following reasons.

Both parties to this action mistakenly relied on an ambiguous footnote in a recent opinion in arguing that this issue is one of first impression. In Fehlhaber v. Fehlhaber, 681 F.2d 1015 at n. 27 (Former fifth Cir.1982), cert. denied --- U.S. ----, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983), a panel of our court stated that "[t]he res judicata effect of a default judgment on jurisdictional defects is an unsettled question ...." This statement, although dicta and not binding in any event, obviously refers to the lack of national uniformity on the issue of whether a default judgment is open to collateral attack for alleged jurisdictional defects. The question was settled in this jurisdiction in a decision of the former fifth Circuit. See Bonner v. City of...

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