Rosenstein v. Steele

• Decision Date: 22 December 1987
• Docket Number: No. 18155,18155
• Parties: Leonard ROSENSTEIN, Appellant, v. J. Rodman STEELE, Jr., Lewis F. Gould, Jr., and Harvey D. Fried, Steele, Gould & Fried, Respondents.
• Court: Nevada Supreme Court

Page 230

747 P.2d 230

103 Nev. 571

Leonard ROSENSTEIN, Appellant, v. J. Rodman STEELE, Jr., Lewis F. Gould, Jr., and Harvey D Fried, Steele, Gould & Fried, Respondents.

No. 18155.

Supreme Court of Nevada.

Dec. 22, 1987.

Lovell, Bilbray & Potter, Las Vegas, for appellant.

Jack G. Perry, Las Vegas, for respondents.

OPINION

PER CURIAM:

This is an appeal from an order of the district court denying appellant's motion to set aside and to stay the enforcement of a Pennsylvania default judgment. For the reasons set forth below, we affirm the order of the district court.

In July of 1986, respondents obtained the entry of a default judgment against appellant, a Nevada resident, in the Pennsylvania Court of Common Pleas, and thereafter duly registered the judgment in Nevada pursuant to the Nevada Uniform Enforcement of Foreign Judgments Act (UEFJA). See NRS 17.330-17.400. In December of 1986, appellant filed a motion in the Nevada district court seeking to set aside the judgment and to stay its enforcement pursuant the provisions of NRCP 55(b), NRCP 60(b)(1), and NRS 17.350. ¹ The court below entered an order denying appellant's motion on February 26, 1987. This appeal followed.

Appellant contends that the district court abused its discretion by denying his motion on the ground that appellant had failed to demonstrate excusable neglect under NRCP 60(b)(1). We need not consider appellant's contention in this regard. The full faith and credit clause of the United States Constitution requires that a final judgment entered in a sister state must be respected by the courts of this state absent a showing of fraud, lack of due process or lack of jurisdiction in the rendering state. See U.S. Const., art. IV, § 1; Morris v. Jones, 329 U.S. 545, 551, 67 S.Ct. 451, 455, 91 L.Ed. 488 (1947); Phares v. Nutter, 125 Ariz. 291, 609 P.2d 561 (1980); MILLER V. ELOIE FARMs, inc., 128 ARIZ. 269, 625 p.2D 332 (app.1980); Data Management Systems, Inc. v. EDP Corp., 709 P.2d 377 (Utah 1985). Consequently, the defenses preserved by Nevada's Uniform Enforcement of Foreign Judgments Act and available under NRCP 60(b) are limited to those defenses that a judgment debtor may constitutionally raise under the full faith and credit clause and which are directed to the validity of the foreign judgment. See Data Management Systems, Inc. v. EDP Corp., supra; Miller v. Eloie Farms, Inc., supra; cf. Farnham v. Farnham, 80 Nev. 180, 391 P.2d 26 (1964) (district court's refusal to enforce foreign money judgment was improper where foreign judgment was not challenged on grounds of fraud or lack of jurisdiction and where there was no merit to the debtor's due process challenge). Therefore, even assuming that appellant had sufficiently established below that his neglect was excusable under NRCP 60(b)(1), the district court would have been constitutionally precluded from setting aside the Pennsylvania judgment unless appellant had also demonstrated that the default judgment was invalid due to fraud, lack of jurisdiction or lack of due process in the rendering court. Having reviewed the record, we conclude that appellant's motion below did not demonstrate that the Pennsylvania judgment was invalid or otherwise subject to attack based upon fraud, lack of jurisdiction, or lack of due process.

First, we observe that appellant did not allege, nor do the facts suggest, that the default judgment was procured as a result of fraud upon the Pennsylvania court. Second, to the extent that appellant's motion below may have challenged enforcement of the Pennsylvania judgment on the ground of lack of jurisdiction, our review of the record reveals sufficient unrefuted evidence to establish that appellant was subject to the jurisdiction of the Pennsylvania court. See Union Nat. Bank of Pittsburgh v. L.D. Pankey, 284 Pa.Super. 537, 426 A.2d 624 (1980) (Pennsylvania may exercise in personam jurisdiction over non-resident defendant where (1) defendant purposefully availed himself of acting within the state; (2) the cause of action arises from defendant's activities within the forum; and (3) defendant has a substantial enough connection with Pennsylvania to make the exercise of jurisdiction reasonable). Specifically, we note that respondents presented an affidavit below from a member of respondents' firm. The affidavit set forth specific averments that appellant had orally promised respondents that he would pay the legal fees in question, that appellant visited the law firm in Pennsylvania on three occasions in connection with the litigation, that appellant remitted four checks to respondents totaling $14,000 as partial payment for their legal services, and that, for all practical purposes, appellant acted for the corporate client in conducting the litigation. Accordingly, respondents set forth sufficient evidence below to refute appellant's conclusory allegations respecting jurisdiction, and to establish that appellant's business activities within the forum subjected him to the jurisdiction of the Pennsylvania court. See 42 Pa. Cons. Stat.Ann. § 5322 (Purdon 1981); Union Nat. Bank of Pittsburgh v. L.D. Pankey, supra.

Third, our review of the record reveals no support for appellant's assertion that he was deprived of due process of law by...