Colson v. Thunderbird Bldg. Materials

• Decision Date: 31 October 1979
• Docket Number: No. 9058,9058
• Parties: James COLSON, Appellant, v. THUNDERBIRD BUILDING MATERIALS, A Division of L & W Supply Corp., A Delaware Corporation, Appellee.
• Court: Texas Court of Appeals

Page 836

589 S.W.2d 836

James COLSON, Appellant, v. THUNDERBIRD BUILDING MATERIALS, A Division of L & W Supply

Corp., A Delaware Corporation, Appellee.

No. 9058.

Court of Civil Appeals of Texas, Amarillo.

Oct. 31, 1979.

Rehearing Denied Nov. 28, 1979.

Brock, Waters & Pigg, Harold H. Pigg, Lubbock, for appellant.

Crenshaw, Dupree & Milam, Don C. Dennis, Lubbock, for appellee.

COUNTISS, Justice.

This suit on an Arizona default judgment requires this court to determine whether there was compliance with the statutory method of service utilized in the Arizona suit. We hold that the Arizona court did not acquire in personam jurisdiction of appellant James Colson because appellee Thunderbird Building Materials did not satisfy the requirements of the Arizona service statute it utilized. Consequently, we reverse the judgment of the trial court and render judgment for Colson.

James Colson, a resident of Lubbock, Texas, engaged in work as a subcontractor in the state of Arizona in 1974. A dispute arose related to his construction activity and appellee Thunderbird sued Colson "and Jane Doe Colson, his wife" and others in the Superior Court of Maricopa County, Arizona. Thunderbird utilized Rule 4(e)(2)(a) of the Arizona Rules of Civil Procedure to obtain service by mail on the Colsons in Texas.

Copies of the Arizona summons and complaint were sent by registered mail, return receipt requested, to James Colson and to "Jane Doe Colson" at the Lubbock address where Mr. and Mrs. Colson resided. Mrs. Colson accepted both letters from the postman and signed the return receipts "Mrs. James Colson." She showed the letters to Mr. Colson either that day or the following day. He consulted an attorney about the matter but took no further action on the case until suit was filed in Texas. The Arizona court subsequently entered a default judgment against the Colsons. This suit against them, seeking to enforce the Arizona judgment, was then filed in Texas.

Following a jury trial, the trial court entered judgment against Mr. Colson for the amount due under the Arizona judgment, plus interest and costs. ¹ In this court, Colson presents several points of error. Our disposition of the case requires us to consider only Colson's contention that the Arizona court never acquired jurisdiction of his person because of faulty service.

The acquisition of in personam jurisdiction of a non-resident defendant was, for many years, grounded on the doctrine of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878) which held, Inter alia, that a money judgment against a non-resident was void unless there was either personal service of process within the forum state or voluntary appearance of the defendant in the suit. The realities of a mobile, urban population eventually led to the modification of that rule ² by the "minimum contacts" standard stated in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945):

(D)ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice."

There is now no doubt that "(i)n personam jurisdiction may constitutionally be acquired by extraterritorial service of process on natural persons as in the case of corporations." Mitchim v. Mitchim, 518 S.W.2d 362, 365 (Tex.1975).

The doctrines announced in International Shoe Co. v. Washington, supra, McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228 (1958) are the foundation for the long arm statutes exemplified by Rule 4(e)(2) of the Arizona Rules of Civil Procedure and Article 2031b of the Texas Revised Civil Statutes Annotated. See McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965).

Since Article IV, Section I of the United States Constitution requires each state to give full faith and credit to the judicial proceedings of every other state, an individual sued on a final judgment of a sister state cannot litigate, in the suit to enforce the foreign judgment, the merits of the controversy that led to the judgment. The merits have been determined in the foreign proceeding and are constitutionally entitled to full faith and credit. However, the full faith and credit clause does not prohibit a test of the jurisdiction of the foreign forum because a judgment rendered without jurisdiction is void, not entitled to recognition in any forum and subject to collateral attack. See Country Clubs, Inc. v. Ward, 461 S.W.2d 651 (Tex.Civ.App. Dallas 1970, writ ref'd n. r. e.); Jackson v. Randall, 544 S.W.2d 439 (Tex.Civ.App. Texarkana 1976, no writ). The jurisdictional defense is usually centered on the contention that there was no personal jurisdiction over the defendant in the foreign forum because (1) the defendant did not have sufficient minimal contacts with the foreign forum to trigger that forum's long arm statute (I. e., lack of due process) or (2) the steps required by the long arm statute were not followed. Mitchim v. Mitchim, supra, at p. 365.

In evaluating the jurisdictional defense, there are certain principles that must be applied. The long arm statute must not exceed the " minimal contacts" standard, ³ must provide a procedure that is "reasonably calculated to inform non-resident defendants of the pending proceedings" and must not deny them an opportunity to be heard in defense of their interest. Hanson v. Denckla, supra, at pp. 245, 257, 78 S.Ct. 1228.

Texas courts will, upon proper motion as in this case, follow the substantive interpretations of the foreign statute by its courts. However, certain principals and presumptions of Texas law are applicable at the outset. Thus, when a judgment of a sister state regular on its face and authenticated in accordance with 28 U.S.C. § 1738 is introduced in evidence, a prima facie case is established and Texas law presumes that the foreign forum had jurisdiction over the cause and the parties "unless disproved by extrinsic evidence or by the record itself." A & S Distributing Co. v. Providence Pile, Etc., 563 S.W.2d 281, 283 (Tex.Civ.App. Dallas 1977, writ ref'd n. r. e.). There is language in several Texas cases that this presumption does not exist if the foreign judgment is a default judgment such as we have in this case. See, e. g., Jackson v. Randall, 544 S.W.2d 439 (Tex.Civ.App. Texarkana 1976, no writ); Country Clubs, Inc. v. Ward, supra. We believe, however, that the proper view was signaled by Mitchim v. Mitchim, supra, and clearly enunciated in A & S Distributing Co. v. Providence Pile, Etc., supra, where the court stated that the rule of no presumption "cannot be properly applied to a foreign default judgment in view of the full faith and credit clause and 28 U.S.C. § 1738, since in a suit brought in this state, an attack on the foreign judgment is a collateral attack, and the presumption of regularity applies." ⁴

Also, when a procedure for giving notice and obtaining jurisdiction is statutorily established, that method is generally exclusive and the form prescribed must be followed with reasonable strictness. See Scucchi v. Woodruff, 503 S.W.2d 356, 360 (Tex.Civ.App. Fort Worth 1973, no writ); Clayton v. Newton, 524 S.W.2d 368, 372 (Tex.Civ.App. Fort Worth 1975, no writ). This is particularly true when dealing with long arm statutes because they exist on the outer fringes of permissible constitutional acquisition of personal jurisdiction. Thus, when there is a specific statute that sets out the steps that must be taken, the inquiry is not whether the defendant had actual knowledge of the proceeding against him; rather, the question is whether that knowledge was conveyed to him in the manner required by the statute. See Clayton v. Newton, supra; Scucchi v. Woodruff, supra.

The portion of the Arizona long arm statute, Rule 4(e)(2), utilized in this case, reads as follows:

(a) Registered mail. When the whereabouts of a defendant outside the state is known, the serving party may deposit a copy of the summons and complaint in the post office, registering it with a return receipt requested. Upon return through the post office of the registry receipt, he shall file an affidavit with the court showing the circumstances warranting the utilization of the procedure authorized under Section 4(e)(1); and (a) that a copy of the summons and complaint was dispatched to the party being served; (b) that it was in fact received by the party as evidenced by the attached registry receipt; (c) that the genuine receipt thereof is attached; and (d) the date of the return thereof to the sender. This affidavit shall be prima facie evidence of personal service of the summons and complaint and service shall be deemed complete and time shall begin to run for the purposes of Section 4(e)(4) of this Rule thirty (30) days after the filing of the affidavit and receipt.

16 A.R.S. Rules of Civil Procedure, Rule 4(e)(2). The purpose of Rule 4(e)(2) was stated by the Arizona Supreme Court in Houghton v. Piper Aircraft Corporation, 112 Ariz.App. 365, 542 P.2d 24, 26 (1975): "Arizona's long arm statute is contained in Rule 4(e)(2) of the Arizona Rules of Civil Procedure and is intended to give Arizona residents the maximum privileges permitted by the Constitution of the United States." Colson had sufficient minimum contact with Arizona to trigger its long arm statute, and he does not contend otherwise.

Colson does contend, however, that the steps required by Rule 4(e)(2)(a) were not followed; thus, the Arizona court never obtained jurisdiction over him and its judgment is void. Specifically, Colson points to that portion of the statute that states: "(b) that it was in fact received by the party as evidenced by the attached registry receipt." He contends that the "attached registry receipt" presented...