Van Buskirk v. Great American Bank of Broward County, 70301
| Decision Date | 11 June 1985 |
| Docket Number | No. 70301,70301 |
| Citation | 175 Ga.App. 101,332 S.E.2d 394 |
| Parties | VAN BUSKIRK et al. v. GREAT AMERICAN BANK OF BROWARD COUNTY. |
| Court | Georgia Court of Appeals |
Claude S. Beck, Blairsville, for appellants.
J. Carey Hill, Ellijay, for appellee.
The trial court, upon a hearing, domesticated a Florida judgment against Robert Van Buskirk and Darlene Van Buskirk, residents of Fannin County, Georgia, upon two commercial loans in the amounts of $235,359.07 and $110,343.88. The Florida judgment was a default judgment, taken after an attorney filed a notice of appearance in the Florida court on behalf of the Van Buskirks. An affidavit of the bank's attorney states that the Van Buskirks' attorney advised he would not be filing a response to the lawsuit. The lawsuit was filed with jurisdiction obtained under the Florida Long-Arm Statute (Fla.Statute § 48.193(1)(a) and (g)). Service was made upon the Van Buskirks by registered mail and by service upon the Florida Secretary of State, who then sent certified copies of the suit to the Van Buskirks in Georgia. The Florida court entered final judgment upon a specific finding that the Florida court had jurisdiction of the parties. The Van Buskirks' answer to the domestication suit denies that the Florida court had personal jurisdiction and contends personal service of process of the Florida suit had not been perfected.
The Georgia court specifically found that the Van Buskirks had knowledge of the lawsuit and retained counsel to represent them, that the Florida court had jurisdiction of the parties, that the issue of jurisdiction was specifically heard in Florida, and that that determination was conclusive and correct.
On appeal, the Van Buskirks contend the trial court erred in domesticating the judgment, in applying Florida law, and in denying a collateral attack, because the bank did not give notice pursuant to OCGA § 9-11-43 that it intended to rely upon the laws of Florida as to jurisdiction and service. Held:
The properly exemplified acts, records and judicial proceedings or copies thereof, shall have the same full faith and credit in every court within this state as they have by law or usage in the courts of the state from which they are taken. OCGA § 24-7-24; Mid-Ga. Bandag Co. v. Nat. Equip. Rental, 164 Ga.App. 68, 296 S.E.2d 391; Melnick v. Bank of Highwood, 151 Ga.App. 261, 259 S.E.2d 667. A collateral attack upon a petition to domesticate a foreign judgment, made on grounds that it was based on a lack of personal jurisdiction, is precluded in this state only if the defendant has appeared in the foreign court and has thus had an opportunity to litigate the issue. Borg-Warner Health Prods. v. May, 154 Ga.App. 482, 483, 268 S.E.2d 770. According to Georgia law, under which this collateral attack is made (see Ramseur v. American Mgt. Assn., 155 Ga.App. 340, 341, 270 S.E.2d 880, the defenses of lack of jurisdiction and insufficiency of process are waived where the defendant has notice of the suit and could have appeared to challenge personal jurisdiction, but elects to do nothing and suffers a default judgment. Echols v. Dyches, 140 Ga.App. 191, 230 S.E.2d 315. The defendants in this case did formally appear by attorney in the Florida court but did not challenge personal jurisdiction and service of process. Appellants had actual notice of the suit and could have appeared for the limited purpose of challenging...
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...Bandag Co. v. Nat. Equipment Rental, 164 Ga.App. 68, 69(2), 296 S.E.2d 391 (1982). See also Van Buskirk v. Great American Bank of Broward County, 175 Ga.App. 101, 102, 332 S.E.2d 394 (1985). We note that “[a] collateral attack based on lack of personal jurisdiction is precluded only when th......
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