Carothers v. Vogeler

• Citation: 532 A.2d 580,148 Vt. 316
• Decision Date: 07 August 1987
• Docket Number: No. 85-127,85-127
• Parties: Gary G. CAROTHERS, M.D. v. John G. VOGELER.
• Court: United States State Supreme Court of Vermont

Page 580

532 A.2d 580

148 Vt. 316

Gary G. CAROTHERS, M.D. v. John G. VOGELER.

No. 85-127.

Supreme Court of Vermont.

Aug. 7, 1987.

Kevin P. Dailey and Susan B. Dailey of Joseph J. O'Dea, P.C., Manchester, for plaintiff-appellant.

William C. Dagger of Dick, Hackel & Hull, Rutland, for defendant-appellee.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, ^* JJ.

GIBSON, Justice.

Plaintiff, an Ohio resident, appeals the dismissal of his complaint and the denial of his motion for summary judgment, by which he sought conferral of full faith and credit to a judgment awarded him by an Ohio court. We affirm.

Defendant, a Vermont resident, purchased and restored a 1960 Porsche Roadster, Model 356. Desiring to sell it, he placed an advertisement in the February/March 1982 issue of 356 Registry, a publication devoted to disseminating information about the 356 to Porsche enthusiasts in the United States, Canada and Mexico. The magazine is published bi-monthly by 356 Registry, Inc., a nonaffiliated, nonprofit corporation chartered in the State of Ohio.

Plaintiff saw the advertisement and, after communicating by telephone and mail with defendant, arranged to purchase the Porsche for $12,000. He initially mailed defendant $6,000 as a deposit and received the ownership papers in return. He then traveled to Vermont from Ohio to pay the remaining $6,000 in person. Plaintiff examined the car in Vermont, completed the purchase, and drove the Porsche back to his home in Ohio. Shortly thereafter, plaintiff became dissatisfied with the condition of the car and sought to rescind the transaction.

When attempts to resolve the dispute failed, plaintiff commenced a civil action in Ohio. Service of the complaint was made on defendant at his residence in Vermont. Defendant responded pro se in a letter addressed to plaintiff's counsel in Ohio, disputing plaintiff's allegations and challenging the Ohio court's jurisdiction. Defendant also sent a copy of the letter to the clerk of the Ohio court.

Plaintiff commenced discovery, serving by mail on the defendant two sets of interrogatories and a set of requests for admission. Defendant claims he never received the papers, and he did not respond to them; plaintiff subsequently filed a motion for summary judgment, which defendant also claims not to have received. When defendant failed to answer, the trial court granted the motion and awarded plaintiff $51,000. Plaintiff then sought to enforce the judgment in Vermont by filing a complaint in the Bennington Superior Court.

Defendant moved for summary judgment, claiming the Ohio court lacked personal jurisdiction over defendant, and that its order was an unenforceable foreign judgment. The Bennington court granted defendant's motion, and plaintiff appealed.

Plaintiff first contends that the defendant failed to preserve his jurisdictional claim for review by the Vermont trial court. Defendant's pro se response, filed with the Ohio court, set forth his jurisdictional attack, and was sufficient to preserve his claim. See O.R.C.P. 12(h). See also Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131 (D.C.Cir.1984) (party who has made no pre-answer motion may assert defense of lack of jurisdiction over the person in his answer, along with other defenses such as denials, affirmative defenses and counterclaims).

Plaintiff also claims that the Ohio court's jurisdiction could not be contested in the Vermont action that was brought only to enforce the judgment granted by the Ohio court. This Court has held, however, that the issue of jurisdiction of the rendering court is open to challenge in a collateral proceeding to enforce a judgment in a foreign state. In re Hanrahan's Will, 109 Vt. 108, 118, 194 A. 471, 476 (1937) (quoting Thompson v. Whitman, 18 Wall. 457, 469, 21 L.Ed. 897 (1873)). As was stated in Hanrahan, "this is the rule even when the inquiry necessitates disputing jurisdictional facts positively asserted in the judgment record." Id. at 119, 194 A. at 476.

Addressing the merits, plaintiff next argues that the judgment awarded in Ohio against defendant is entitled to full faith and credit in Vermont pursuant to Article IV of the United States Constitution. In considering the validity of plaintiff's claim, we must assess the applicability of the Ohio "long-arm" statute, Ohio Rev.Code Ann. § 2307.38.2 (Page 1982), to defendant, and determine whether the Ohio court correctly concluded that the defendant was within its reach, or whether, as the Vermont court held, that he was beyond its reach.

The United States Supreme Court requires that a nonresident defendant have certain minimum contacts with the forum state "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342-43, 85 L.Ed. 278 (1940)). The ...