Crosby v. Wenzoski

• Decision Date: 14 October 1982
• Docket Number: No. 63858,63858
• Citation: 296 S.E.2d 162,164 Ga.App. 266
• Parties: CROSBY v. WENZOSKI et al.
• Court: Georgia Court of Appeals

Page 162

296 S.E.2d 162

164 Ga.App. 266

CROSBY v. WENZOSKI et al.

No. 63858.

Court of Appeals of Georgia.

Oct. 14, 1982.

Mark V. Spix, Spencer J. Krupp, Atlanta, for appellant.

Woodrow W. Vaughan, Jr., David N. Schaeffer, Atlanta, for appellees.

SHULMAN, Presiding Judge.

This appeal is from the trial court's grant of summary judgment in favor of appellees in this action to domesticate a California default judgment against appellant in the amount of $101,022,365. Appellant also seeks review of the denial of his motion for judgment on the pleadings and of the trial court's dismissal of his counterclaim based upon alleged fraud in the procurement of the California judgment.

On or about March 15, 1979, appellant's secretary received in appellant's law office in Atlanta a certified letter containing a summons, amended and supplemental complaints, two copies of a notice and acknowledgment of receipt form, and a self-addressed return envelope, all of which pertained to a class action instituted against appellant and other defendants in the Superior Court of California for Marin County. Appellees sought damages in the amount of $74,367,002.97 and accrued interest in the amount of $24,382,791.03. The summons, admittedly received in appellant's office on March 15, 1979, provided in part: "To the Defendant: A civil complaint has been filed by the plaintiff against you. If you wish to defend this lawsuit, you must, within 30 days after this summons is served on you, file with this court a written response to the complaint. Unless you do so, your default will be entered on application of the plaintiff, and this court may enter a judgment against you for the relief demanded in the complaint ..." The notice and acknowledgment of receipt provided in part: "This summons and other document(s) indicated below are being served pursuant to Section 415.30 of the California Code of Civil Procedure. Your failure to complete this form and return it to me within 20 days may subject you ... to liability for the payment of any expenses incurred in serving a summons on you in any other manner permitted by law ... this form must be signed by you personally or by a person authorized by you to acknowledge receipt of summons. Section 415.30 provides that this summons and other document(s) are deemed served on the date you sign the acknowledgment of receipt below, if you return this form to me."

Appellant took no action to answer or otherwise formally respond to the California action. He did speak by telephone with appellee's California counsel shortly after receipt of the summons. He stated in an affidavit filed with the trial court that the language contained in the notice and acknowledgment of receipt form led him to believe that he was not legally bound to sign the acknowledgment and that his execution of the acknowledgment was a prerequisite to effective service.

California counsel for appellees filed with the Superior Court of Marin County on March 20, 1979, a proof of service form stating that service of the "Summons, Complaint & Acknowledgment of Receipt" on appellant had been perfected by registered mail and, pursuant to California Code § 415.40, attached the return receipt to the proof of service. A default judgment against appellant was issued by the Superior Court of Marin County on September 13, 1979. The judgment included the principal and pre-judgment interest stated above and $2,272,571 in additional accrued interest.

On December 17, 1979, appellant filed in the Superior Court of Marin County a motion to vacate default and set aside the judgment of September 13, 1979. The motion was based "on the grounds that the defendant ... has not been properly served and consequently a default cannot be entered against him." Appellees opposed the motion, relying in part on the interpretations of Cal.Code §§ 415.30 and 415.40 in Shoei Kako Co. v. Superior Court, 33 Cal.App.3d 808, 109 Cal.Rptr. 402; and M. Lowenstein & Sons v. Superior Court, 80 Cal.App.3d 762, 145 Cal.Rptr. 814. On February 14, 1980, the Superior Court of Marin County issued an order without opinion denying appellant's motion to vacate and set aside. The record before this court does not indicate that any appeal was taken from the latter order.

Appellees subsequently filed this action seeking to domesticate the September 13, 1979, judgment. The trial court granted appellees' motion for summary judgment, denied appellant's motion for judgment on the pleadings, and dismissed appellant's counterclaim. Appellant charges on appeal that the trial court erred in granting appellees' motion for summary judgment on the following grounds: (1) the California judgment was procured by fraud and is, therefore, not entitled to full faith and credit in Georgia; (2) the California judgment is null and void due to lack of personal jurisdiction over appellant; and (3) the California judgment, allegedly procured by fraud, without personal jurisdiction over appellant, and in contravention of Georgia public policy, constitutes a denial of due process. Appellant charges that the trial court erred in denying his motion for judgment on the pleadings, since the California procedures for obtaining personal jurisdiction employed in his case allegedly contravene Georgia public policy. Finally, appellant attacks the trial court's dismissal of his counterclaim allegedly based on fraud.

1. Appellant initially argues that he can now successfully attack the California judgment because it was procured by means of extrinsic fraud on the part of appellees' California counsel in connection with service of the complaint and summons on appellant. He argues that, although the complaint was allegedly served pursuant to Cal.Code § 415.30, California counsel for appellees represented to the court that service on appellant had been perfected pursuant to Cal.Code § 415.40. In other words, he argues that he was "misled" into believing that proper service had not been effected while the court was "misled" into believing that proper service had been effected.

Cal.Code § 415.40 provides: "A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by any form of air mail requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing." It is undisputed that appellant received a copy of the complaint and summons by certified mail with a return receipt. Consequently, it appears clear that appellant was served in accordance with the express terms of § 415.40, as represented to the court by appellees' California counsel. However, appellant argues that he was actually served pursuant to § 415.30, which provides that a copy of a complaint and summons may be served on the defendant by first class mail or air mail and accompanied by two copies of a notice of service and acknowledgment of receipt of summons containing language identical to that contained in the notice and acknowledgment of receipt form actually received by appellant on March 15, 1981, and quoted in the statement of facts above. He now contends that the appellees' conflicting representations to him and the court, respectively, constitute fraud in the manner in which service, and ultimately the judgment, was procured thus permitting the judgment to be ignored by Georgia courts. We disagree.

Even assuming that appellant has stated facts sufficient to support an allegation of extrinsic fraud in the service of the California complaint and summons, which we do not believe appellant has done, we fail to see how the present attempt to attack collaterally the California judgment differs substantially from the attempt to attack collaterally the Tennessee judgment in Gordon v. Gordon, 237 Ga. 171, 227 S.E.2d 53. In that action, the mother attempted to attack collaterally a Tennessee judgment awarding custody of her child to the child's father. The attack was based on the ground that service of process in the Tennessee court was obtained through fraud. The Supreme Court rejected an attack on the judgment based on alleged fraud and lack of jurisdiction. "Under the full faith and credit clause of the United States Constitution, a judgment of a foreign court will be enforced by the courts of this state. However, that judgment may be collaterally attacked where the court lacked jurisdiction of the person or subject matter or where the judgment was procured by fraud. Schowe v. Amster, 236 Ga. 720, 225 S.E.2d 289 (1976); Boggus v. Boggus, 236 Ga. 126, 223 S.E.2d 103 (1976); Barnett v. Barnett, 191 Ga. 501, 13 S.E.2d 19 (1941); but see Wood v. Wood, 200 Ga. 796 (1), 38 S.E.2d 545 (1946). In the case before us the mother attempts to attack collaterally the Tennessee judgment. However, these same jurisdictional issues were raised and decided against her in the Tennessee court, and therefore the Tennessee judgment must be given full faith and credit not only as to the change of custody but also as to the finding of jurisdiction. Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963); Green Acres Discount v. Freid & Appell, 135 Ga.App. 816, 219 S.E.2d 39 (1975)." Gordon v. Gordon, supra, p. 171.

Specifically addressing the question of fraud, the court in Gordon stated that the "mother's allegations of a fraud in the procurement of the Tennessee judgment constitute only a characterization of the facts as to the manner by which the presence of the children and mother in Tennessee was procured, the means by which service of process was obtained, and the means by which jurisdiction was acquired ... [Consequently], [t]he same facts which now are alleged as constituting fraud were the basis of the challenge to the Tennessee court's jurisdiction." Id., p. 172. This was true, even though the record failed to disclose "that such fraud was expressly alleged in defense of the...