Coffee v. National Equipment Rental, Limited

• Decision Date: 06 March 1969
• Docket Number: No. 1,CA-CIV,1
• Citation: 9 Ariz.App. 249,451 P.2d 329
• Parties: M. Everett COFFEE, Appellant, v. NATIONAL EQUIPMENT RENTAL, LTD., Appellee. 569.
• Court: Arizona Court of Appeals

Page 329

451 P.2d 329

9 Ariz.App. 249

M. Everett COFFEE, Appellant, v. NATIONAL EQUIPMENT RENTAL, LTD., Appellee.

No. 1 CA-CIV 569.

Court of Appeals of Arizona.

March 6, 1969.

MacKenzie, Scott, Gasser, Bolze & Weltsch, by Duane W. Bolze and Julian F. Weltsch, Phoenix, for appellant.

Wilson & McConnell, by Beverly J. McConnell, Phoenix, for appellee.

CAMERON, Judge.

The defendant, M. Everett Coffee, appeals from a summary judgment granted in favor of the plaintiff, National Equipment Rental, Ltd., hereinafter referred to as National. The complaint filed in the Maricopa County Superior Court against Coffee was based on a judgment obtained by National against Coffee on 11 April 1966 in the Supreme Court of the State of New York, County of Nassau. Both parties moved for summary judgment and National's We are called upon to determine whether the New York court had jurisdiction to enter the judgment. In viewing the evidence most favorably to the person against whom the summary judgment was granted, Mermis v. Weeden & Co., 8 Ariz.App. 166, 444 P.2d 524 (1968), the following facts are necessary for a determination of this matter on appeal.

motion was granted and Coffee's denied.

National and Coffee entered into an equipment lease agreement on 27 March 1963 whereby Coffee was to lease certain equipment from National. The lease agreement, a printed document, consisted of two pages of fine print containing 19 separate clauses which covered the terms of the lease. Paragraph 19 provided:

'19. The agreement shall be deemed to have been made in Nassau County, New York, regardless of the order in which the signatures of the parties shall be affixed hereto, and shall be interpreted, and the rights and liabilities, of the parties here determined, in accordance with the laws of the State of New York, and as a part of the consideration for the Lessors executing this lease, Lessee hereby agrees that all actions or proceedings arising directly or indirectly from this lease shall be litigated only in courts having situs within the State of New York, and Lessee hereby consents to the jurisdiction of any local, State or Federal court located within the State of New York, And waives the personal service of any and all process upon the Lessee herein, and consents that all such service of process may be made by certified or registered mail, return receipt requested, directed to the Lessee at the address hereinabove indicated that the equipment leased hereunder is to be kept; and service so made shall be complete two (2) days after the same shall have been posted as aforesaid.' (emphasis ours)

Thereafter on 26 November 1965 National instituted an action in the Supreme Court of the State of New York, County of Nassau, against Coffee and Mullen-Form Corporation (not a party to this action). On 11 April 1966 the Supreme Court of the State of New York, County of Nassau, rendered the judgment in favor of National and against Coffee in the sum of $3,487.13 with interest, plus costs of $40. The judgment in that action recited:

'The summons and complaint in the above entitled action having been personally served upon the defendants M. Everett Coffee and Mullen-Form Corporation on the 26th day of November 1965 and the time for defendants to appear, answer or raise an objection to the complaint and point of law having expired and said defendants not having appeared, answered or raised an objection to the complaint in point of law,

'NOW, upon the summons and complaint, proof of service thereof, the affidavit of Harry M. Weisberg sworn to the 7th day of April 1966 and upon motion of Harry M. Weisberg, 1 Plainfield Ave., Elmont, N.Y., attorney for the plaintiff it is,

'ADJUDGED that the plaintiff, National Equipment Rental Ltd. of 1 Plainfield Ave., Elmont, N.Y. do recover of the defendant M. Everett Coffee, 233 E. Camelback, Phoenix, Arizona, the sum of $3,487.13, the amount claimed with interest and that the plaintiff have execution therefore (sic), * * *.' (emphasis ours)

On 27 June 1966 National instituted an action in the Maricopa County Superior Court based on the New York judgment. The defendant in his answer alleged that the New York court was without jurisdiction over the subject matter and over the defendant by reason of insufficient service of process. Defendant's affidavit in opposition to National's motion for summary judgment stated:

'EVERETT M. COFFEE, upon oath, deposes and says:

'1. That he has been a continuous resident of the State of Arizona for the past five years.

'2. That the lease attached to Plaintiff's Motion for Summary Judgment was executed by him in Phoenix, Arizona.

'3. That at no time since the execution of said lease has this affiant been in the State of New York.

'4. That affiant has never been served with a copy of the Summons and/or Complaint in the matter of NATIONAL EQUIPMENT RENTAL, LTD. vs. M. EVERETT COFFEE, et al, cause No. 14406/65, Superior Court of the State of New York, County of Nassau, either in person or by mail of any nature.

'5. That affiant never received notice, of any nature, that an action had been commenced against him in the State of New York prior to the Complaint filed herein.

'6. That affiant was not receiving any mail at 1311 East Cameblack Road, Phoenix, Arizona, on or about November 29, 1965; that said address was an address used by a corporation, to-wit; MULLEN-FORM CORPORATION, however, said address had been abandoned by the corporation prior to November 29, 1965.'

Article IV, Section 1, of the Constitution of the United States provides:

'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.'

Congress has implemented the full faith and credit clause by 28 U.S.C. § 1738 which provides for the mode of attestation and authentication of the records of courts in one state to entitle them to recognition in the courts of another state. A judgment of a court of general jurisdiction of a sister state duly authenticated is prima facie evidence of the jurisdiction of the court to render it and of the right which it purports to adjudicate. Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82 (1944).

A defendant is not without some rights, however, and generally a suit upon a foreign judgment may be attacked on the following grounds:

A. Lack of jurisdiction over

1. The person

2. The subject matter

Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940), rehearing denied 312 U.S. 712, 61 S.Ct. 548, 85 L.Ed. 1143 (1941).

B. Lack of due process.

Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946), Wetmore v. Karrick, 205 U.S. 141, 27 S.Ct. 434, 51 L.Ed. 745 (1907).

C. Incompetency of foreign court.

Thompson v. Whitman, 85 U.S. 457, 18 Wall 457, 21 L.Ed. 897 (1873).

D. Extrinsic fraud.

Stephens v. Thomasson, 63 Ariz. 187, 160 P.2d 338 (1945).

E. Invalid or unenforceable judgment.

Public Works v. Columbia College, 84 U.S. 521, 17 Wall 521, 21 L.Ed. 687 (1873), Article IV, § 1, United States Constitution.

There appears to be no question as to the competency of the New York court, of extrinsic fraud, or that the judgment was invalid or unenforceable in New York, this latter point not being raised in the Arizona court. The question before this Court is whether the New York court had personal jurisdiction over the defendant. It is the opinion of this Court that the New York court lacked jurisdiction over the person of the defendant because of (1) lack of personal service and (2) the failure of National to follow the provisions of the contract in the attempted service of the summons and complaint.

PERSONAL SERVICE

The contract itself states that the defendant 'waives the personal service of any and all process upon the lessee herein and consents that all such service of process may be made by certified or registered mail, return receipt requested * * *.' It would thus appear that under the contract the New York court could obtain jurisdiction by (1) personal service or (2) by certified or registered mail, return receipt requested. The judgment sued upon shows clearly that the court relied upon personal...