Cantwell MacHinery v. BALLARD AGENCY

583 So. 2d 73, 1991 La. App. LEXIS 1861, 1991 WL 108396
CourtLouisiana Court of Appeal
DecidedJune 21, 1991
Docket22536-CA
StatusPublished
Cited by2 cases

This text of 583 So. 2d 73 (Cantwell MacHinery v. BALLARD AGENCY) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cantwell MacHinery v. BALLARD AGENCY, 583 So. 2d 73, 1991 La. App. LEXIS 1861, 1991 WL 108396 (La. Ct. App. 1991).

Opinion

583 So.2d 73 (1991)

CANTWELL MACHINERY COMPANY, Plaintiff-Appellee,
v.
The BALLARD AGENCY, INC., Defendant-Appellant.

No. 22536-CA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 1991.

*74 McLeod, Swearingen, Verlander, Dollar, Price & Noah, Monroe, by John C. Laird, for defendant-appellant.

Nesser, King & LeBlanc, New Orleans, by Liane C. King, for plaintiff-appellee.

Before PRICE, BALLARD and CLARK (Ad Hoc), Judges.

PRICE, Judge.

This is an appeal from the judgment rejecting an application for an order to stay the enforcement of a foreign judgment which had been recognized and made executory in this state under the provisions of LSA-R.S. 13:4241 et seq. Having found no error in the judgment appealed, we affirm.

PROCEDURAL BACKGROUND

In July, 1988, Cantwell Machinery Company, an Ohio company, sued appellant, Ballard Agency, Inc., of Monroe, Louisiana, in the court of Common Pleas of Franklin County, Ohio, alleging that Ballard had wrongfully terminated an insurance binder affording extended warranty coverage on machinery sold by Cantwell. Ballard received notice and a copy of the complaint by certified mail at its Monroe office on August 3, 1988. As no responsive pleadings were filed by Ballard in the Ohio court, a default judgment against it was rendered on April 21, 1989.

Pursuant to the "Enforcement of Foreign Judgments Act", LSA-R.S. 13:4241, the Fourth District Court for Ouachita Parish, on August 8, 1989, ordered the judgment of the Ohio court in the amount of $60,170.61 be recognized and made executory in Louisiana.

On September 6, 1989, Ballard filed a rule to stay execution of the Ohio judgment and obtained an order staying execution pending further orders of the court. Trial of this rule was not until May 30, 1990, at which time the trial court rejected the motion to stay the execution of the Ohio judgment based on its finding that the court was required to give full faith and credit to the judgment of another state if it was shown that the other state had jurisdiction over the parties. The court found that Ballard had not borne the burden of showing that it was not subject to the jurisdiction of the Ohio court.

Although the trial court rejected Ballard's application for a judgment ordering the stay of execution of the April 21, 1989 Ohio judgment, it did continue the ex parte stay order obtained by Ballard pending any application for and disposition of writs to this court.

On this appeal, Ballard contends the trial court erred in two respects. First, that the court was in error in finding sufficient minimum contacts to have existed by Ballard in the State of Ohio making it subject to personal jurisdiction in that state. Secondly, that the trial court erred in its August 8, 1989 ex parte ruling making an April 21, 1981 Ohio court judgment executory when there was no copy of such judgment authenticated in accordance with an Act of Congress or this state introduced with the ex parte petition as required by LSA-R.S. 13:4242.

In answer to Ballard's appeal, Cantwell points out that there was an obvious typographical error in the order of August 8, 1989 making an April 21, 198 1 judgment of the Ohio court executory whereas the copy of the judgment attached to the petition and all references to said judgment in the petition showed it to be an April 21, 198 9 judgment that was asked to be recognized. This is the basis of Ballard's second assignment of error. Cantwell therefore asks that this error be ordered corrected to reflect the correct date of April 21, 1989 in the order appealed.

Cantwell also complains of the trial court delaying its right to execution of the judgment which had been recognized by continuing the initial ex parte stay order pending a decision of the Court of Appeal on any application for supervisory writs that might be filed by defendant, Ballard. This complaint has now become moot as the application for writs by Ballard has been denied by an order of the Court of Appeal in No. 22,330-CW, filed on November 20, *75 1990. Since the stay order has expired by its own terms, we see no reason to consider Cantwell's request for a modification of the trial court's judgment because of the alleged error in granting such a stay of execution.

Therefore, the issues presented for our determination are whether the Ohio court had personal jurisdiction over Ballard to entitle its judgment rendered on April 21, 1989, the protection of the full faith and credit provided by Article 4, Section 1 of the United States Constitution and whether the ex parte judgment of the Ouachita Parish court recognizing the judgment should be amended to correct its erroneous reference to a judgment dated "April 21, 1981" instead of "April 21, 1989".

Was There Personal Jurisdiction Over Ballard?

The factual background giving rise to Ballard's contacts with the State of Ohio as shown in the record is as follows.

In 1986 and 1987, Mr. John O. Ballard, president and owner of The Ballard Agency, Inc., began to investigate the feasibility of entering an additional insurance field to the usual commercial casualty and property coverage the agency then pursued. He felt there was a national market for extended warranty coverage and he began seeking an insurance company to underwrite such coverage for this market. After considerable searching, he obtained an agency contract for this purpose with Pelican State Insurance Company in Louisiana.

Ballard knew a Georgia agent and broker, T.M. Smith Company, that had engaged in writing this type coverage through American Universal Insurance Group and had learned that this insurer had recently ceased writing this coverage.

Through negotiation with T.M. Smith, Ballard obtained a list of customers for which this coverage had previously been written by Smith. To take advantage of this potentially ready-made market, Ballard prepared a number of insurance binders committing Pelican State to provide this coverage for the customers on the list given Ballard by Smith. The binders were mailed by Smith to the various customers along with a letter explaining that this coverage was now being written through the Ballard Agency in Monroe, Louisiana with Pelican State as the insurer. One of the binders was sent to Cantwell Machinery Company in the State of Ohio. Cantwell was a previous customer of Smith. This binder was received by Cantwell sometime in November, 1987. In March, 1988, Pelican State ordered Ballard to cancel all binders that had been issued committing Pelican to extended warranty coverage. Ballard wrote Cantwell a letter advising that this coverage was cancelled insofar as Pelican State was concerned but solicited Cantwell's continued business if another insurer could be obtained. In July, 1988, Cantwell filed suit against Ballard, Pelican State, T.M. Smith Company and American Universal Insuror Group in the Court of Common Pleas, Franklin County, Ohio. As against Ballard, the complaint was that the binder issued by Ballard through Pelican State was wrongfully cancelled and that Cantwell had been damaged because of this.

Ballard was notified of this action by certified mail on August 3, 1988. As no appearance or filing had been made by Ballard in the Ohio court, on April 21, 1989, a default judgment was rendered against Ballard in response to a motion by Cantrell. The validity of this judgment which was subsequently made executory in Ouachita Parish is the basis of this proceeding.

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583 So. 2d 73, 1991 La. App. LEXIS 1861, 1991 WL 108396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cantwell-machinery-v-ballard-agency-lactapp-1991.