Signet Bank/Virginia v. Tillis, A90A0668

• Decision Date: 03 July 1990
• Docket Number: No. A90A0668,A90A0668
• Citation: 196 Ga.App. 433,396 S.E.2d 54
• Parties: SIGNET BANK/VIRGINIA v. TILLIS.
• Court: Georgia Court of Appeals

Page 54

396 S.E.2d 54

196 Ga.App. 433

SIGNET BANK/VIRGINIA v. TILLIS.

No. A90A0668.

Court of Appeals of Georgia.

July 3, 1990.

Rehearing Denied July 16, 1990.

Certiorari Denied Nov. 15, 1990.

David G. Crockett, D. Ruth Primm, Atlanta, for appellant.

Finn, Cunningham & Hurtt, R. Scott Cunningham, Dalton, for appellee.

CARLEY, Chief Judge.

Appellant-plaintiff, a Virginia-based bank, extended an offer to issue appellee-defendant a credit card by mailing a pre-approved application form to appellee's address in Georgia. When an acceptance of its offer bearing appellee's purported signature was mailed to and received by it in Virginia, appellant issued the credit card in appellee's name and mailed it to his Georgia address. The credit card was thereafter used in Georgia and some payments were mailed to appellant in Virginia. When payments ceased, however, appellant brought suit against appellee in Virginia and obtained a default judgment against him. Appellant then initiated this action against appellee in Georgia, seeking to domesticate the Virginia default judgment. Appellee answered and raised, among his other defenses, the Virginia court's lack of personal jurisdiction over him. Appellant subsequently moved for summary judgment, supporting its motion by pleading and proving the Virginia judgment and the Virginia Long Arm Statute under which personal jurisdiction over appellee in Virginia was ostensibly predicated. In opposition to appellant's motion, appellee submitted his affidavit wherein he swore that the signature purporting to signify the acceptance of appellant's offer to issue him a credit card was not his and that he had neither received nor used the credit card that appellant had issued in his name.

On this evidence, the trial court not only denied appellant's motion for summary judgment, but, on its own motion, also granted summary judgment in favor of appellee. The trial court based its ruling on the following: "In the original Virginia action on the contract against the Georgia resident defendant, the Virginia court lacked personal jurisdiction over the defendant under the rules enunciated in Kendrick v. Parker, 258 Ga. 210 (1988). The Virginia judgment which plaintiff is seeking to domesticate in the instant case appears to be an unreasonable abuse of the Virginia Long Arm Statute. Therefore, the Virginia judgment is void and cannot be domesticated." It is from this order that appellant brings the instant appeal.

Appellant urges that the trial court erred in granting, on its own motion, summary judgment in favor of appellee based upon the affidavit that appellee had filed in opposition to appellant's motion for summary judgment. See Thompson v. Hurt, 159 Ga.App. 656, 657(3), 284 S.E.2d 671 (1981). However, the trial court apparently concluded that appellee was entitled to summary judgment, not on the basis of any facts that had been set forth in appellee's affidavit, but on the basis that, as a matter of law, the Virginia court nevertheless lacked personal jurisdiction over appellee even under the factual circumstances upon which appellant was relying to establish the existence of such jurisdiction. If the Virginia court lacked personal jurisdiction over appellee even though he had accepted appellant's offer to extend him credit, then certainly no genuine issue of material fact remained and the trial court correctly granted summary judgment notwithstanding appellee's failure to have moved for summary judgment in his favor. "[S]ummary judgment can be granted to a non-moving party provided that the grant is proper in all other respects. [Cit.]" (Emphasis supplied.) Golston v. Garigan, 245 Ga. 450, 451(1), 265 S.E.2d 590 (1980).

" 'The judgment of a court of one State, when sued on, pleaded, or introduced in evidence in another State, is entitled to receive the same full faith, credit, and respect that is accorded to it in the State where rendered. If it is valid and conclusive there, it is so in all other States. [Cits.]' [Cit.] However, neither the Full Faith and Credit Clause of the United States Constitution 'nor any act of Congress passed in pursuance thereof, forbids or prevents an inquiry into the jurisdiction of the court by which the judgment offered in evidence in another State was rendered.' [Cit.]" Masters v. ESR Corp., 150 Ga.App. 658, 659(1), 258 S.E.2d 224 (1979). "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties, or relations.' [Cit.].... 'Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, ... the defendant [must have] "purposefully directed" his activities at residents of the forum, [cit.], and the litigation [must result] from alleged injuries that 'arise out of or relate to' those activities. [Cit.]' [Cit.]" First United Bank of Miss. v. First Nat. Bank of Atlanta, 255 Ga. 505, 506-507, 340 S.E.2d 597 (1986). "[T]he constitutional touchstone [is] whether the defendant purposefully established 'minimum contacts' in the forum State ... '[that is, whether] the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.' [Cit.]" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). "[A]n individual's contract with an out-of-state party alone [cannot] automatically establish sufficient minimum contacts in the other party's home forum...." (Emphasis in original.) Burger King Corp. v. Rudzewicz, supra at 478, 105 S.Ct. at 2185. See also Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga.App. 892, 893(1), 380 S.E.2d 303 (1989). "[P]rior negotiations and contemplated future consequences, along...