{ "id": 8527824, "name": "JERRY REINWAND, Plaintiff v. M. DALE SWIGGETT and M. DALE SWIGGETT d/b/a GREAT MISTAKES, Defendants", "name_abbreviation": "Reinwand v. Swiggett", "decision_date": "1992-10-06", "docket_number": "No. 9115SC756", "first_page": "590", "last_page": "595", "citations": [ { "type": "official", "cite": "107 N.C. App. 590" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "326 U.S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "weight": 2, "year": 1945, "opinion_index": 0, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "96 L.Ed. 146", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1951, "opinion_index": 0 }, { "cite": "342 U.S. 126", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 641503 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/us/342/0126-01" ] }, { "cite": "71 L.Ed.2d 558", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 11307431 ], "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/us/455/0691-01" ] }, { "cite": "445 U.S. 691", "category": "reporters:federal", "reporter": "U.S.", "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "375 U.S. 106", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11717859 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/375/0106-01" ] }, { "cite": "302 S.E.2d 790", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707437 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0488-01" ] }, { "cite": "331 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "278" }, { "page": "278" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 621", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526509 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0621-01" ] } ], "analysis": { "cardinality": 510, "char_count": 11203, "ocr_confidence": 0.76, "pagerank": { "raw": 1.2944214923034268e-07, "percentile": 0.6206545246460314 }, "sha256": "d7048d7214e991fa1389018a84c270455a1243669d7b72cb8549da3bc14dc246", "simhash": "1:4d1d4c3523f81a77", "word_count": 1819 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Eagles and Parker concur." ], "parties": [ "JERRY REINWAND, Plaintiff v. M. DALE SWIGGETT and M. DALE SWIGGETT d/b/a GREAT MISTAKES, Defendants" ], "opinions": [ { "text": "JOHNSON, Judge.\nOn 29 February 1990, plaintiff-appellee, Jerry Reinwand, received a default judgment against defendant-appellant, M. Dale Swiggett, in the Superior Court for the State of Alaska, First Judicial District at Juneau, in the amount of $81,925.36 plus post judgment interest accruing at the rate of $23.57 per day from 29 February 1990. The default judgment was made final in Alaska and was filed on 29 February 1990, with the public office of the Alaska trial courts in Juneau.\nPlaintiff, a resident of Alaska, had filed the original suit in Alaska on 17 January 1990, claiming defendant, a resident of North Carolina, had sold him defective goods. The summons was served on defendant 22 January 1990. Under Alaska law, defendant had twenty days to respond, but failed to do so. Default by the clerk was entered on 14 February 1990.\nOn 22 February 1990, defendant filed a motion to dismiss for lack of jurisdiction, which was filed pro se in the Third Judicial District at Anchorage, Alaska which was the improper district. Because the motion was not filed in the proper district, the clerk in Alaska was unaware that defendant had responded to the complaint filed against him, and therefore entered a default judgment against him on 29 February 1990. The court, upon receiving the motion, considered it as a motion to set aside entry of default. On 24 June 1990, Judge Duane Craske of the Superior Court of Alaska, First Judicial District at Juneau, held in a memorandum of decision and order on motion to dismiss for lack of jurisdiction, that the court properly exercised personal jurisdiction over Defendant M. Dale Swiggett. A court official certified that a true copy of the memorandum decision was served upon defendant.\nThe court relied upon the affidavit of Jerry Reinwand, which states that defendant undertook extensive efforts, including sending samples to Alaska and making numerous telephone calls to Alaska, to induce plaintiff to purchase a van load of clothing to be shipped to Alaska. The court determined that this action constituted \u201cpurposeful availment\u201d of the privilege of doing business in Alaska. The court further concluded that defendant\u2019s sale of goods to plaintiff and making arrangements to ship them to Alaska satisfied the Alaska Long-arm Statute.\nIn his memorandum of decision, the judge in Alaska expressly provided:\n[Defendant may file a motion under Civil Rule 77 to set aside entry of default on other grounds within twenty days of the date of distribution of this order. The failure to file a motion under Civil Rule 77 will mean that the default judgment will continue to be valid and enforceable.\nDefendant did not file a motion to set aside entry of default within the twenty days allowed, or at any time thereafter.\nOn 6 December 1990, plaintiff filed in Alamance County Superior Court, the default judgment entered against M. Dale Swiggett in the Superior Court for the State of Alaska, and sent defendant notice of the filing pursuant to the Uniform Enforcement of Foreign Judgments Act. See N.C. Gen. Stat. \u00a7\u00a7 1C-1701-08 (1989). The copy of the default judgment filed in superior court was certified as authentic by the Alaska courts. Further, an affidavit from plaintiff\u2019s counsel in the Alaska court contained sworn testimony that the judgment was final and filed in the proper place.\nIn response to this action, defendant filed a motion for relief from judgment on 2 January 1991 in superior court. Defendant claimed that the Alaskan judgment was void because the Alaskan court did not have personal jurisdiction over him. Defendant also claimed that the judgment could not be enforced against him individually because the only liability, if any, was owed by Great Mistakes, Inc. and proceedings against Great Mistakes, Inc. were stayed by its filing for reorganization under Chaper 11 of the United States Bankruptcy Code.\nOn 16 January 1991, in response to defendant\u2019s motion for relief from judgment, plaintiff filed a motion to enforce the foreign judgment. Attached to the motion was a certified copy of the 29 February 1990 default judgment, a certified copy of the Alaska court\u2019s memorandum decision, an affidavit of plaintiff\u2019s Alaska counsel stating that both of these Alaskan court documents are full, true, and accurate copies of the records on file in the Alaska trial courts, and an affidavit of Jerry Reinwand which was attached to the memorandum decision.\nA hearing on the motion to enforce the Alaskan judgment was held on 25 February 1991. The court, after hearing arguments of counsel, ordered that plaintiff\u2019s motion to enforce foreign judgment be allowed and that defendant\u2019s motion for relief from judgment be denied. The court ordered that the default judgment from Alaska be given full faith and credit as a judgment of this State. Defendant appeals.\nOn appeal, defendant brings forth one assignment of error. Defendant argues that the trial court erred in determining that plaintiff met his burden of proving that a judgment of the state courts of Alaska was entitled to full faith and credit pursuant to N.C. Gen. Stat. \u00a7 lC-1705(b) (1989). North Carolina General Statute \u00a7 lC-1705(b) provides in pertinent part that \u201c[t]he judgment creditor shall have the burden of proving that the foreign judgment is entitled to full faith and credit.\u201d\nDefendant further argues that the Alaska court\u2019s determination that it had jurisdiction over him is conclusive only if the issue was fully and fairly litigated in Alaska. Defendant, therefore, seeks to attack the Alaska court\u2019s judgment on the basis that the issue of jurisdiction was not fully and fairly litigated.\nIn Webster v. Webster, 75 N.C. App. 621, 331 S.E.2d 276 (1985), this Court held that a Texas decree entering a default judgment for the wife in a divorce action seeking payment of arrears under a divorce decree, was entitled to full faith and credit in North Carolina. The Webster Court opined that \u201c[a] judgment of another state may be attacked in this state only on grounds of fraud, public policy, or lack of jurisdiction.\u201d Id. at 622, 331 S.E.2d at 278.\nOur review of the jurisdiction of a court rendering a judgment is limited to determining if the issues were indeed fully and fairly litigated. Boyles v. Boyles, 308 N.C. 488, 302 S.E.2d 790 (1983). Upon a finding that the issue of jurisdiction was fully and fairly litigated, constitutional federal principles preclude their relitigation elsewhere. Durfree v. Duke, 375 U.S. 106, 11 L.Ed.2d 186 (1963). See Underwriters Assur. v. North Carolina Life, 445 U.S. 691, 706, 71 L.Ed.2d 558, 572 (the principles of res judicata apply to questions of jurisdiction as well as other issues, and a judgment is entitled to full faith and credit, as to questions of jurisdiction, when the reviewing court\u2019s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court that rendered the original judgment).\nIn Cook v. Cook, 342 U.S. 126, 96 L.Ed. 146 (1951), the Supreme Court held that for full faith and credit purposes, appearing specially to contest jurisdictional issues constitutes litigation of those issues. The Webster Court noted that this rule of law \u201cleaves non-resident parties the unenviable choice of not appearing at all in the foreign state or appearing to contest jurisdiction and, if unsuccessful, submitting to jurisdiction over the merits.\u201d 75 N.C. App. at 622, 331 S.E.2d at 278.\nIn the instant case, defendant was given the opportunity to litigate the issue of personal jurisdiction. Subsequent to the filing of the default judgment in the First Judicial District at Juneau, the court considered defendant\u2019s motion to dismiss for lack of jurisdiction, which was improperly filed pro se in the Third Judicial District at Anchorage, Alaska. The motion stated that defendant was appearing specially and pleading that the Alaska court did not have jurisdiction over him. The Alaska court treated the motion as a motion to set aside entry of default on grounds of improper exercise of jurisdiction.\nOn 24 June 1990, the Alaska Superior Court held in a memorandum of decision that the court properly exercised personal jurisdiction over defendant. The court specifically held that the Alaska court properly exercised personal jurisdiction over defendant under section 09.05.015(5)(E) of the Alaska Long-arm Statute, which affords jurisdiction in an action which relates to goods actually received in Alaska, without regard to where delivery was made to the carrier. The Alaska court also found the proper exercise of personal jurisdiction under the Federal Constitution. Constitutional minimum contacts, as defendant correctly contends are required by International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95 (1945), were found because defendant actively promoted the transaction by making numerous phone calls to plaintiff in Alaska and by sending representative merchandise to Alaska, and because this claim was directly related to the contacts.\nDefendant was also given an opportunity to contest jurisdiction after he entered the special appearance. A copy of the memorandum decision was served on defendant and provided that \u201cdefendant may file a motion under Civil Rule 77 to set aside entry of default on other grounds within twenty days of the date of distribution of this order. The failure to file a motion under Civil Rule 77 will mean that the default judgment will continue to be valid and enforceable.\u201d Defendant did not file a motion to set aside the entry of default nor did he appeal the Alaska default judgment. The aforementioned facts considered, we conclude that the issue of personal jurisdiction was fully and fairly litigated in the Alaska court and defendant is, therefore, precluded from relitigating the issue in the courts of North Carolina.\nDefendant also argues that \u201ca certified copy of the Alaskan judgment..., as a practical matter, seems to be the only admissible evidence brought forth by the plaintiff to prove that the judgment is entitled to full faith and credit,\u201d since the other documents introduced in support of the judgment were hearsay. We have considered this argument but find it meritless.\nThe decision of the trial court is\nAffirmed.\nJudges Eagles and Parker concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ ".Poyner & Spruill, by Eric P. Stevens, for plaintiff-appellee.", "Mathew E. Bates for defendant-appellant." ], "corrections": "", "head_matter": "JERRY REINWAND, Plaintiff v. M. DALE SWIGGETT and M. DALE SWIGGETT d/b/a GREAT MISTAKES, Defendants\nNo. 9115SC756\n(Filed 6 October 1992)\nConstitutional Law \u00a7 145 (NCI4th)\u2014 Alaska business solicited from North Carolina \u2014 goods shipped from North Carolina to Alaska \u2014 jurisdictional issue fully litigated \u2014Alaska judgment entitled to full faith and credit\nThe trial court did not err in determining that plaintiff met his burden of proving that a judgment of the state courts of Alaska was entitled to full faith and credit pursuant to N.C.G.S. \u00a7 lC-1705(b), since the issue of jurisdiction was fully and fairly litigated.\nAm Jur 2d, Constitutional Law \u00a7 860.\nAPPEAL by defendant from judgment entered 25 February 1991 by Judge J. B. Allen, Jr., in ALAMANCE County Superior Court. Heard in the Court of Appeals 25 August 1992.\n.Poyner & Spruill, by Eric P. Stevens, for plaintiff-appellee.\nMathew E. Bates for defendant-appellant." }, "file_name": "0590-01", "first_page_order": 618, "last_page_order": 623 }