A & S Distributing Co., Inc. v. Providence Pile Fabric Corp.

• Decision Date: 19 December 1977
• Docket Number: No. 19326,19326
• Citation: 563 S.W.2d 281
• Parties: A & S DISTRIBUTING COMPANY, INC., Appellant, v. PROVIDENCE PILE FABRIC CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 281

563 S.W.2d 281

A & S DISTRIBUTING COMPANY, INC., Appellant, v. PROVIDENCE PILE FABRIC CORPORATION, Appellee.

No. 19326.

Court of Civil Appeals of Texas, Dallas.

Dec. 19, 1977.

Rehearing Denied March 2, 1978.

Philip R. Russ, Dallas, for appellant.

Dennis N. Ryan, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellee.

GUITTARD, Chief Justice.

In this suit on a New York judgment, the trial court rendered summary judgment for plaintiff. Defendant appeals on the ground that the validity of the New York judgment is not established by competent summary-judgment evidence. We hold that the authenticated copy of the New York judgment attached to plaintiff's motion raises a presumption of validity shifting to defendant the burden to show lack of personal jurisdiction or other grounds of invalidity, and that defendant failed to present summary-judgment evidence raising a fact issue in this respect. Consequently, we affirm.

Defendant's first point asserts that the summary judgment was erroneous because the motion on which it was based was not supported by summary-judgment proof by way of affidavits or other extrinsic evidence. We hold that no such proof was required. Under authority of the full faith and credit clause of the United States Constitution, article IV § 1, the Congress long ago enacted a statute, now designated 28 U.S.C. § 1738, which prescribes the manner of proving the records of judicial proceedings of other states and also provides that copies of such proceedings, when authenticated as so prescribed, "shall have and the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." Under this statute, when a judgment of another state is authenticated as prescribed and appears to be a record of a court of general jurisdiction, the court's jurisdiction over the cause and the parties is presumed unless disproved by extrinsic evidence or by the record itself. Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 159, 96 L.Ed. 146 (1951); Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649 (1938); Thomas v. Frosty Morn Meats, 266 N.C. 523, 146 S.E.2d 397, 400 (1966). The judgment in question appears to be within this rule. The copy of the judgment attached to the motion for summary judgment is authenticated as prescribed by § 1738. It is regular on its face and appears to be a judgment of the supreme court of the state of New York, which we judicially know to be a court of general jurisdiction. See Perrenoud v. Perrenoud, 206 Kan. 559, 480 P.2d 749, 760 (1971) (general civil jurisdiction of California superior court judicially noticed). Consequently, no affidavit or extrinsic summary-judgment proof is required.

Defendant contends also that there is no summary-judgment proof that the judgment is final, valid, and subsisting, that it has not been vacated or set aside, or that plaintiff is the owner and holder of it. We hold that such proof is not required because of the presumption applicable to a foreign judgment when authenticated as prescribed by § 1738. Such an authenticated copy is sufficient in itself to establish a prima facie case, and the burden is on the defendant to show that the judgment is not final or subsisting or that the court did not have jurisdiction to render it. Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975); Country Clubs, Inc. v. Ward, 461 S.W.2d 651, 655 (Tex.Civ.App. Dallas 1970, no writ). Although on this appeal from a summary judgment all questions of fact must be resolved against the trial court's ruling, the foreign judgment sued on is nevertheless entitled to all the presumptions arising from the full faith and credit clause and 28 U.S.C. § 1738. Accordingly, defendant's attack on the foreign judgment is in the nature of an affirmative defense, on which defendant has the burden to offer some summary-judgment proof raising a fact issue. Hungate v. Hungate, 531 S.W.2d 650, 653 (Tex.Civ.App. El Paso 1975, no writ); L. C. Russell Co. v. Pipeguard Corp., 504 S.W.2d 596, 640 (Tex.Civ.App. Beaumont 1973, no writ); Thomas v. Frosty Morn Meats, Inc., 266 N.C. 523, 146 S.E.2d 397, 400 (1966). Cf. Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1959) (when plaintiff's summary-judgment proof establishes elements of claim, defendant has burden to show fact issue on affirmative defense).

Moreover, it has been held that when the plaintiff named in a foreign judgment brings suit on it in this state, he is not required to show that he is the owner and holder of the judgment, as if he were suing on a promissory note in which he is named as payee. L. C. Russell Co. v. Pipeguard Corp., supra at 600.

Defendant further contends that any presumption in favor of the New York judgment has been rebutted by his verified pleadings and summary-judgment proof challenging the jurisdiction of the New York court. The pleadings, of course, raise no fact issue in themselves, since pleadings, even if sworn, are not competent summary-judgment proof. Hidalgo v. Surety Savings & Loan Ass'n, 462 S.W.2d 540 (Tex.1971). Defendant relies also, however, on an affidavit of the defendant's president filed in response to the motion for summary judgment. This affidavit denies that defendant had subjected itself to the jurisdiction of the New York courts and also denies that defendant had ever had any business transactions with plaintiff's agent, Quaker Fabric Corporation, in the state of New York.

We conclude that this affidavit is insufficient to raise a fact issue. The statement that defendant has never subjected itself to the jurisdiction of the New York court is not competent summary-judgment proof because it is no more than a legal conclusion. Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215 (1956). Neither is a fact issue raised by the denial that defendant had had any business transactions with plaintiff's agent, Quaker Fabric Corporation, in the state of New York. In this connection, defendant argues that New York has "no substantial interest" in granting relief between a Texas corporation (defendant) and a Massachusetts corporation (plaintiff). This argument is untenable because in this case personal jurisdiction does not depend on defendant's participation in business transactions in New York, but on defendant's alleged voluntary agreement to submit any dispute arising out of its contracts with plaintiff to arbitration in the state of New York. The judgment recites that it is rendered pursuant to an arbitration award. The sworn petition alleges that plaintiff and defendant had entered into a series of contracts by which plaintiff sold to defendant certain goods, and that each of these contracts contained a provision that all controversies under them "shall be settled by arbitration in New York in accordance with the Rules of the American Arbitration Association." The petition further alleges that arbitration proceedings under these contracts were originally instituted by defendant, as shown by an attached demand for arbitration by defendant against Quaker Fabric Corporation. Exhibits attached to the petition further show that plaintiff had answered this demand for arbitration, stating that Quaker was its sales agent, and that plaintiff had counterclaimed for monies alleged to be due to it under its contracts with defendant. The petition states that both plaintiff and defendant were represented by counsel at a hearing in New York before the arbitrators, who made an award in favor of plaintiff. Finally, the petition prays for recovery of the amount of the award.

According to New York law, an agreement to arbitrate a commercial dispute in New York, such as is alleged in the New York petition, constitutes a voluntary submission to the jurisdiction of the New York courts. N.Y. Civ.Prac. Law and Rules § 7501 (McKinney 1963); S. M. Wolff Co. v. Tulkoff,9 N.Y.2d 356, 214 N.Y.S.2d 374, 174 N.E.2d 478 (1961); Terminal Auxiliar Maritima v. Cocotos S.S. Co., 11 Misc.2d 697, 178 N.Y.S.2d 298 (Sup.Ct. 1957). Consequently, the allegations of the New York petition present a ground of jurisdiction of the New York court that does not depend on any other contacts by the defendant with the state of New York. In view of the presumption of regularity of the New York judgment created by the authenticated copy of the New York proceedings under 28 U.S.C. § 1738, defendant had the burden, in response to plaintiff's motion for summary judgment, to present summary-judgment proof negating the ground of jurisdiction recited in the New York judgment and alleged in the petition before the New York court. Since the defendant failed to offer any summary-judgment proof raising a fact issue as to whether defendant did, in fact, submit itself to the jurisdiction of the New York court by agreeing to submit to arbitration in New York disputes arising out of contracts with plaintiff or its agent, we hold that the presumption of regularity supported the summary judgment for plaintiff in enforcing the New York judgment.

Defendant insists that the law of New York has not been properly pleaded and proved, and, consequently, that we must presume that New York law is the same as Texas law. The record shows, however, that plaintiff filed in support of its motion for summary judgment a memorandum of authorities citing the pertinent New York law, including the authorities cited herein for voluntary submission to the jurisdiction of the New York courts and the validity of service by mail. The records shows that this memorandum was filed and a copy was furnished to counsel for ...