Butler Fence Co. v. Acme Fence & Iron Co.

852 S.W.2d 826, 42 Ark. App. 30, 1993 Ark. App. LEXIS 286
CourtCourt of Appeals of Arkansas
DecidedMay 12, 1993
DocketCA 92-256
StatusPublished
Cited by4 cases

This text of 852 S.W.2d 826 (Butler Fence Co. v. Acme Fence & Iron Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler Fence Co. v. Acme Fence & Iron Co., 852 S.W.2d 826, 42 Ark. App. 30, 1993 Ark. App. LEXIS 286 (Ark. Ct. App. 1993).

Opinion

James R. Cooper, Judge.

This is an appeal from a summary judgment granted in favor of the appellee, Acme Fence & Iron Company, Inc., against the appellant, Butler Fence Company. The appellee obtained a default judgment against the appellant on February 22,1991, in the District Court of Cleveland County, Oklahoma, in the total amount of $61,659.30, plus interest. The appellee subsequently sought registration of the foreign judgment in Arkansas. The appellant objected on the grounds that the Oklahoma court lacked both in personam and subject matter jurisdiction. The appellee moved for summary judgment, and the trial court granted the motion.

Summary judgment is an extreme remedy which should be granted only when it is clear that there is no genuine issue of fact to be decided. Purser v. Corpus Christi State National Bank, 258 Ark. 54, 522 S.W.2d 187 (1975). In appeals from the granting of summary judgment, we need only decide if the granting of summary judgment was appropriate based on whether the evidence presented by the moving party in support of the motion left a material question of fact unanswered. Harvison v. Charles E, Davis & Assocs., 310 Ark. 104, 835 S.W.2d 284 (1992). All proof submitted must be viewed in the light most favorable to the party resisting the motion and any doubts and inferences must be resolved against the moving party. Id.

The Uniform Enforcement of Foreign Judgments Act, Ark. Code Ann. § 16-66-602 to -608 (Supp. 1991), provides a summary procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found, thereby enabling the judgment creditor to obtain relief in an expeditious manner. McDermott v. Great Plains Equip. Leasing Corp., 40 Ark. App. 8, 839 S.W.2d 547 (1992). The Uniform Act requires only that the foreign judgment be regular on its face and duly authenticated to be subject to registration. Id.

Under the Full Faith and Credit Clause of the United States Constitution, art. IV, § 1, a foreign judgment is as conclusive on collateral attack, except for defenses of fraud in the procurement or want of jurisdiction in the rendering court, as a domestic judgment would be. See, e.g., Strick Lease, Inc. v. Juels, 30 Ark. App. 15, 780 S.W.2d 594 (1989). These judgments are presumed valid; an answer asserting lack of jurisdiction is not evidence of the fact and the burden of proving it is on the one attacking the foreign judgment. Strick Lease, supra; Dolin v. Dolin, 9 Ark. App. 329, 659 S.W.2d 954 (1983).

The appellee contends that because the Oklahoma judgment was rendered by default, overturning it in Arkansas is governed by Ark. R. Civ. P. 55(c) for setting aside default judgments. The United States Constitution, art. IV, § 1, overrides the local regulation of access to the procedures of state courts for the purpose of enforcing foreign judgments. Therefore, foreign judgments, regardless of whether entered by default, are protected against collateral attack by the full faith and credit clause unless the previously stated defenses can be established.

Our initial inquiry, therefore, is whether the appellant has shown that there are genuine issues of material fact concerning the Oklahoma judgment’s validity. On appeal, the appellant argues that there are two genuine issues of material fact to be resolved: (1) whether there was proper service of process upon the appellant, and (2) whether Oklahoma had sufficient contacts with the subject matter of the lawsuit to give that state jurisdiction over the appellant.

For its first argument, the appellant contends that there was no evidence of proper service on the appellant and that, therefore, the Oklahoma court did not have in personam jurisdiction.

Service of process under Oklahoma law may be made:

(3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the petition to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process ....

Okla. Stat. Ann. tit. 12 § 2004(C)(1)(c) (West Supp. 1993). Section 2004(E)(2) provides that when the exercise of jurisdiction is authorized by Oklahoma’s long arm statute, service of process may be made:

(a) by personal delivery in the manner prescribed for service within this State (Oklahoma) or
(b) in the manner prescribed by law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction.

Proof of service shall be made by the person serving the process to the Court, but failure to make proof of service does not affect the validity of the service. § 2004(G)(1). Subsection (G)(2) requires that the return set forth the name of the person served and the date, place and method of service.

In Oklahoma, statutes concerning service of process must be substantially complied with in order to vest a court with jurisdiction. Graff v. Kelly, 814 P.2d 489 (Okla. 1991); VanNort v. Davis, 800 P.2d 1082 (Okla. Ct. App. 1990). Serviceof process is sufficient if it informs the defendant that he has been sued, the nature of the proceedings against him, his interest therein and of the court where the hearing will be held. VanNort, supra.

In support of the summary judgment motion, the appellee included an affidavit of Charles Wise, a deputy sheriff with the Miller County Sheriff’s Department, which stated that on September 10, 1990, he personally served a person at Butler Fence Company authorized by law to accept service. The affidavit of service did not identify the person with whom the documents were left or that person’s relationship to the appellant.

Jay Lucas Schniederjan, an attorney for the appellee, stated in her affidavit that she had received a telephone call from a man identifying himself as the son of Mr. Butler of Butler Fence Company, in which he told her that he had received the papers and that their attorney would be calling her regarding the lawsuit. However, actual notice cannot by itself be sufficient to establish in personam jurisdiction. Graff, supra.

The appellant bases its argument that it was not properly served on the contention that the affidavit of personal service did not reflect service upon a legal entity and that it did not identify the person served or that person’s relationship to Butler Fence Company. Wylie Butler, in his affidavit, stated that Butler Fence Company is an assumed name and not a corporation.

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Bluebook (online)
852 S.W.2d 826, 42 Ark. App. 30, 1993 Ark. App. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-fence-co-v-acme-fence-iron-co-arkctapp-1993.