Taylor v. Landsman

• Decision Date: 30 June 1981
• Docket Number: No. 3-1280A395,3-1280A395
• Parties: Hugh TAYLOR, Appellant-Defendant, v. Ronald A. LANDSMAN, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 403

422 N.E.2d 403

Hugh TAYLOR, Appellant-Defendant, v. Ronald A. LANDSMAN, Appellee-Plaintiff.

No. 3-1280A395.

Court of Appeals of Indiana, Third District.

June 30, 1981.

John R. Frechette, Gildea, Long & Frechette, Professional Corp., Elkhart, for appellant-defendant.

Donald E. Esmont, Doran, Manion, Boynton, Kamm & Esmont, South Bend, for appellee-plaintiff.

STATON, Judge.

Hugh Taylor appeals the granting of summary judgment in favor of Ronald A. Landsman in an action commenced by Landsman to enforce a default judgment rendered by an Illinois state court.

On appeal, Taylor raises the following issues for review:

(1) Did the trial court err in granting Landsman's motion for summary judgment?

(2) Did the trial court err in denying Taylor's motion for summary judgment?

Reversed.

In 1976, Landsman, an Illinois resident, filed a breach of contract action against Taylor, an Indiana resident, in the Circuit Court of Cook County, Illinois. The clerk of the Illinois court issued an alias summons which was to be served upon Taylor by the Sheriff's Department of St. Joseph County, Indiana. The summons was returned as having been served. After Taylor failed to respond to Landsman's complaint, the Illinois court entered a default judgment against Taylor. Landsman thereafter filed a complaint to enforce the unsatisfied default judgment against Taylor in the Superior Court of St. Joseph County, Indiana. The Indiana trial court summarily disposed of the complaint in Landsman's favor. From that entry of summary judgment, Taylor commenced this appeal. ¹

The ultimate issue that must be resolved eventually is whether the Indiana trial court should have given full faith and credit to the default judgment rendered by the Illinois court. The Full Faith and Credit Clause of the United States Constitution, Art. IV, § 1, requires that "(a) judgment entered in one State must be respected in another provided that the first State had jurisdiction over the parties and the subject matter." Nevada v. Hall (1979), 440 U.S. 410, 421, 99 S.Ct. 1182, 1189, 59 L.Ed.2d 416, 425. The jurisdictional prerequisites to affording full faith and credit to a foreign judgment were recognized by this Court when it stated that "a judgment rendered in one state can be collaterally attacked in a second state when the original court was lacking in jurisdiction of either the subject matter or the person." Podgorny v. Great Central Insurance Co. (1974), 160 Ind.App. 244, 246, 311 N.E.2d 640, 643. This appeal presents a collateral attack upon the Illinois judgment recovered by Landsman in 1976.

Taylor attacks the Illinois judgment on the basis that the Illinois court did not obtain personal jurisdiction over him before rendering the default judgment. Taylor contends personal jurisdiction was lacking because he was not served with notice of the Illinois suit commenced by Landsman. Taylor's argument consists of a two-pronged attack: (1) he was not served personally with notice of the suit, and (2) Landsman's attempted use of the substituted service of process provision of the Illinois Civil Practice Act, which permits extraterritorial service of process upon a member of a nonresident-defendant's family at the defendant's out-of-state residence, ² was defective. The Indiana trial court rejected Taylor's argument and found that the Illinois judgment was "entitled to full faith and credit by the courts of this state."

While the full faith and credit issue must be resolved eventually, the sole inquiry at this point of the appeal must be directed toward a narrower legal issue. This Court must determine whether the trial court's grant of Landsman's motion for summary judgment and its denial of Taylor's motion for summary judgment were proper. The trial court's judgment must be evaluated in accordance with the following rules regarding a Trial Rule 56 motion for summary judgment:

"A summary judgment is a procedure for applying the law to the facts, when there is no factual controversy. It is not a procedure for trying the facts and for determining the preponderance of the evidence... The party seeking a summary judgment has the burden of establishing that there are no genuine issues as to any material fact. Any doubt must be resolved against the movant... Even if the facts are not in dispute, a summary judgment is not appropriate when the information before the court discloses a good faith dispute as to the inferences to be drawn from these facts...

In determining whether to grant a motion for summary judgment, the court considers the facts set forth in the non-moving party's affidavits as true and construes the products of discovery liberally in his favor... Pleadings, evidence, and inferences are to be viewed in a light most favorable to the party against whom the summary judgment is sought... Only if no issue as to a material fact is raised, may the court grant a summary judgment. To defeat such a motion, the opposing party only needs to show that a material fact is genuinely in issue...." (citations omitted)

Poxon v. General Motors Acceptance Corp. (1980), Ind.App., 407 N.E.2d 1181, 1183-84.

I. Landsman's Motion

Taylor contends the trial court erred in granting Landsman's motion for summary judgment because a genuine issue of material fact existed as to whether Taylor was effectively served with notice of the Illinois suit commenced by Landsman. In support of his contention, Taylor relies upon conflicting affidavits which evidence a factual dispute regarding the manner of service employed by Landsman to give Taylor notice of the Illinois suit. This factual dispute, Taylor contends, was prematurely resolved when the trial court granted Landsman's motion for summary judgment.

An affidavit submitted by Taylor indicated that the first time he learned of the Illinois suit was when he received notice of the Indiana suit filed in the St. Joseph Superior Court by Landsman to enforce the default judgment that he recovered in Illinois. Taylor further stated that he did not find at his residence a copy of the alias summons issued by the clerk of the Illinois court, nor did he receive a copy of the alias summons through the mail. An affidavit submitted by Taylor's wife attested to the same facts stated in Taylor's affidavit. The facts set forth in the Taylor's affidavits were contradicted by an affidavit submitted by Patrolman Tom Sherron of the St. Joseph County Sheriff's Department. Sherron stated that on August 31, 1976, he served Mrs. Taylor with legal notice of the Illinois suit commenced by Landsman. The service took place at the Taylors' residence in Osceola, Indiana, and Mrs. Taylor was informed of the contents of the notice. Sherron further stated that he mailed a copy of the alias summons to Taylor after Sherron had served Mrs. Taylor. ³

The conflicting affidavits clearly evidence a factual dispute that was before the trial court for its resolution. However, as stated previously, a summary judgment motion is an improper vehicle for the resolution of conflicting facts. A genuine issue of material fact whether service of process was effected remained in dispute. The facts set forth in Taylor's affidavit, which must be considered as true when evaluating Landsman's motion for summary judgment, indicated that Taylor did not receive notice of the Illinois suit. This fact alone precluded the trial court from summarily disposing of Landsman's complaint. Thus, the trial court erred in granting Landsman's motion for summary judgment.

The conclusion reached by this Court is supported by Podgorny, supra, in which this Court, in a scholarly opinion written by Judge Garrard, addressed a legal issue identical to that in the present case. In Podgorny, an Indiana resident challenged the granting of summary judgment in favor of an Illinois resident on a complaint to enforce a default judgment recovered by the Illinois resident in an Illinois state court. The Indiana resident contended that the Illinois court failed to obtain personal jurisdiction over him because the extraterritorial service of process was not effected in accordance with the provisions of Ill.Rev.Stat. ch. 110, §§ 16 and 13.2, of the Illinois Civil Practice Act. An affidavit, similar to that filed by Taylor in the present case, was filed by the Indiana resident in Podgorny. The Indiana resident stated that he received no notice of the Illinois suit. The trial court rejected the Indiana resident's contention and entered summary judgment in favor of the Illinois resident. In reversing the trial court's grant of summary judgment, this Court stated:

"(I)n the summary judgment proceeding before us, Podgorny's affidavit that he received no notice must be taken as true. His lack of actual notice then supports an inference that the provisions for substituted service were not properly complied with, since the whole concept of substituted service constituting personal rather than constructive service, is that if the provisions for substituted services are met, the party is so reasonably likely to receive actual notice that the requirements of due process are fulfilled.

"Thus, when we construe these answers liberally in his favor and resolve all doubt against Great Central, as we must also do, we must conclude that the issue is presented as to whether, in fact, substituted service was properly made. The record does not affirmatively demonstrate that it was, and summary judgment was therefore erroneous." (emphasis original)

160 Ind.App. at 255-56, 311 N.E.2d at 648. The similarity between Podgorny and the present case necessitates that the same conclusion be reached in both cases. Therefore, this Court concludes the trial court erred in granting Landsman's motion for summary judgment.

II. Taylor's Motion

Taylor contends the trial court erred in denying his motion for summary judgment because the Illinois judgment was not entitled to full faith and credit as a matter of law. Taylor supports his...