Diadan Holdings, Ltd v. Shawn A. Driscoll

• Court: Court of Appeals of Kentucky
• Decided: February 4, 2021
• Docket: 2020 CA 000664
• Status: Unknown

Opinion

RENDERED: FEBRUARY 5, 2021; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0664-MR

DIADAN HOLDINGS, LTD APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE ACTION NO. 19-CI-002769

SHAWN A. DRISCOLL APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, COMBS, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: DiaDan Holdings, Ltd appeals from an order of the

Jefferson Circuit Court which denied its motion seeking summary judgment and

confirmation of a foreign judgment. Finding no error, we affirm. FACTS AND PROCEDURAL BACKGROUND

On September 24, 2009, Appellant issued a promissory note to

Appellee Shawn A. Driscoll. The note stated that Appellee promised to pay

Appellant $10,000, plus interest. The note also stated that payments were to be

made at Appellant’s office in Halifax, Nova Scotia. Further, the note stated that it

“shall be construed in accordance with the laws of the Province of Nova Scotia and

shall be treated in all respects as a Nova Scotia contract.” Finally, the note ended

the following way: “DATED at Halifax, Nova Scotia, this 24th day of September,

2009.” On September 5, 2012, Appellant issued another promissory note to

Appellee. This one was for $38,220, plus interest. This note also stated that

payments were to be made at Appellant’s office in Nova Scotia, that it was to be a

Nova Scotia contract, and that it was to be construed pursuant to Nova Scotia laws.

It too stated that it was “DATED at Halifax, Nova Scotia.” Both notes were signed

by Appellee. Appellee claims in an affidavit contained in the record that he has

never been to Nova Scotia. He also claims that he signed the first note in

Louisville, Kentucky and the second note in Los Angeles, California. Appellee is

currently a resident of Jefferson County, Kentucky. 1

1 At the time the notes were executed, Appellee was friends with the owner of Appellant. It is not clear from the record what kind of business Appellant is, nor is it clear that Appellant loans people money as a regular part of its business.

-2- Appellee received the funds contemplated by the notes, but he made

no payments on either note. On October 18, 2016, Appellant instituted a collection

action in Nova Scotia against Appellee. Appellee accepted service of the Nova

Scotia complaint in January of 2017.2 Despite being aware of the action, Appellee

ignored it and made no appearance in the Nova Scotia action. On April 21, 2017,

Nova Scotia’s Supreme Court entered an order granting default judgment to

Appellant in the amount of $61,377.39.3

On May 6, 2019, Appellant filed a Complaint to Domesticate Foreign

Judgment in the Jefferson Circuit Court. Appellant requested that the court deem

the Nova Scotia judgment valid and enforce it against Appellee. Appellee filed an

answer in which he raised multiple defenses, including that the default judgment is

void because the Nova Scotia court lacked personal jurisdiction.

On February 14, 2020, Appellant filed a motion for summary

judgment and confirmation of the foreign judgment. Appellee responded to the

motion and again raised the issue of lack of personal jurisdiction. On May 8, 2020,

the trial court entered an order denying the motion. The court held that the Nova

2 Appellee was somewhere in the United States when he accepted service of process, but the record is not clear as to where he was specifically. 3 This amount included the principal amount of the notes and the interest that had accrued.

-3- Scotia court did not have personal jurisdiction over Appellee. This appeal

followed.4

ANALYSIS

The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. . . . “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Summary “judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Consequently, summary judgment must be granted “[o]nly when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor[.]”

Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citations omitted). In

addition, “[t]he question of jurisdiction is ordinarily one of law, meaning that the

standard of review to be applied is [de novo].” Appalachian Regional Healthcare,

Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky. 2007) (citations omitted).

Before we examine Appellant’s argument on appeal, we will first

discuss how a foreign judgment is enforced in Kentucky.

A copy of any foreign judgment authenticated in accordance with the Act of Congress or the statutes of 4 Generally, an order denying a motion for summary judgment is interlocutory and not appealable. Ford Motor Credit Co. v. Hall, 879 S.W.2d 487, 489 (Ky. App. 1994). The exception to this rule is when the order adjudicated the issues on the merits as a matter of law. Id. That exception applies here. The order denying Appellant’s motion for summary judgment denied Appellant the opportunity to enforce the foreign judgment and essentially dismissed its complaint.

-4- this state may be filed in the office of the clerk of any court of competent jurisdiction of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of any court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a court of this state and may be enforced or satisfied in like manner.

Kentucky Revised Statutes (KRS) 426.955. “In KRS 426.950 to 426.975 ‘foreign

judgment’ means any judgment, decree, or order of a court of the United States or

of any other court which is entitled to full faith and credit in this Commonwealth.”

KRS 426.950. “The law in Kentucky is that a sister state’s judgment is entitled to

full faith and credit and to registration if the judgment is valid under that state’s

own laws.” Sunrise Turquoise, Inc. v. Chemical Design Co., Inc., 899 S.W.2d 856,

857-58 (Ky. App. 1995) (citation omitted). There is no argument here that the

Canadian judgment cannot be enforced in Kentucky, and the parties agree that the

above laws regarding foreign judgments apply. To summarize, the Nova Scotia

judgment can be enforced against Appellee in Kentucky if it was valid under Nova

Scotia’s laws.

Appellant’s argument on appeal is that the trial court applied the

incorrect analysis when determining the Nova Scotia judgment was invalid for lack

of personal jurisdiction. The trial court discussed how personal jurisdiction is

obtained in Canada by citing to Morguard Investments Ltd. v. De Savoye, [1990] 3

S.C.R. 1077 (Can.), and Harbert Distressed Investment Master Fund Ltd. v.

-5- Calpine Canada Energy Finance II ULC, (2005) 235 N.S.R. 2d 297 (Can. N.S.

S.C.). The court then discussed Kentucky’s long-arm statute and the personal

jurisdiction rules required by the Due Process Clause of the Fourteenth

Amendment. Appellant claims that Morguard and Harbert are outdated and the

rule in Van Breda v. Village Resorts Ltd., [2012] 1 S.C.R. 572 (Can.), should be

followed. Appellant also argues that there were sufficient contacts with Nova

Scotia to satisfy due process. We disagree with Appellant and believe the trial

court made no error.

A brief history of Canada’s personal jurisdiction jurisprudence is

required. In Morguard, 3 S.C.R 1077 at ¶ 51, the Supreme Court of Canada held

that personal jurisdiction of a foreign defendant is allowed if that defendant has a

“real and substantial connection” to the jurisdiction where the case was filed. The

“real and substantial connection” test was then expanded upon by courts in Canada

and a set of factors was developed to help a court decide if there were real and

substantial connections to a jurisdiction. In Harbert, 235 N.S.R. 2d at 297 ¶ 82,

the Nova Scotia Supreme Court listed the following factors to consider when

determining real and substantial connections:

(1) The connection between the forum and the plaintiff’s claim;

(2) The connection between the forum and the defendant;

(3) Unfairness to the defendant in assuming jurisdiction;

-6- (4) Unfairness to the plaintiff in not assuming jurisdiction;

(5) The involvement of other parties to the suit;

(6) The Court’s willingness to recognize and enforce an extra-provincial judgment rendered on the same jurisdictional basis;

(7) Whether the case is interprovincial or international in nature; and

(8) Comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere.

Additionally, “none of the above factors are [sic] determinative and [] all relative

factors should be considered and weighed together.” Id. at ¶ 83.

Van Breda, supra, which Appellant argues should have been used to

make a determination, was then rendered in 2012. There, the Supreme Court of

Canada held that when considering tort actions, there are four presumptive factors

showing a connection to the jurisdiction.

[I]n a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

(a) the defendant is domiciled or resident in the province;

(b) the defendant carries on business in the province;

(c) the tort was committed in the province; and

(d) a contract connected with the dispute was made in the province.

-7- Van Breda, supra at ¶ 90.

The presumption of jurisdiction that arises where a recognized connecting factor . . . applies is not irrebuttable. The burden of rebutting the presumption of jurisdiction rests, of course, on the party challenging the assumption of jurisdiction. That party must establish facts which demonstrate that the presumptive connecting factor does not point to any real relationship between the subject matter of the litigation and the forum or points only to a weak relationship between them.

Id. at ¶ 95.

We will begin with Appellant’s interpretation of Canadian personal

jurisdiction law. As stated above, Appellant argues that the trial court should have

used the Van Breda factors instead of the Harbert factors. This argument was not

raised before the trial court. Appellant did not mention Van Breda in any

pleadings before the Jefferson Circuit Court. In fact, Appellant relied solely on

Morguard and Harbert when making its argument for summary judgment. As this

issue was not raised below, it is not preserved for our review. “The Court of

Appeals is without authority to review issues not raised in or decided by the trial

court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)

(citations omitted); see also Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky.

App. 1996). “[E]rrors to be considered for appellate review must be precisely

preserved and identified in the lower court.” Skaggs v. Assad, by and through

Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citation omitted).

-8- Arguendo, even if this argument had been preserved, we find it

unpersuasive. Van Breda indicated that the four new real and substantial

connecting factors were only to be considered for tort cases. Van Breda, 1 S.C.R.

572 at ¶ 90. Appellant cites to no cases from Nova Scotia or the Supreme Court of

Canada showing that the Van Breda factors are to be used for contractual issues.

This Court’s own research into this issue also found no case law to support

Appellant’s position. We therefore conclude that the trial court’s utilization of the

Harbert factors was appropriate.

We will now apply the Harbert factors to this case. The first factor is

the connection between the forum and the plaintiff’s claim. Here, the notes state

that they are to be interpreted as Nova Scotia contracts and shall be interpreted

according to Nova Scotia law. They further provide the payments were to be made

in Nova Scotia. The notes also seem to indicate that they were executed in Nova

Scotia by the “Dated at Halifax, Nova Scotia” language. Appellant also claims that

the money came from a Nova Scotia bank, but there is no evidence in the record to

support that claim.

Next, we look at the connection between the forum and the defendant.

Appellee is a resident of Jefferson County, Kentucky, and he stated via affidavit

that he has never been to Nova Scotia. Appellee also stated via affidavit that the

-9- notes were executed in the United States. There is also no evidence in the record

that Appellee has ever conducted any business in Canada.

As for the third factor, the unfairness to the defendant in assuming

jurisdiction, Nova Scotia is far away from his residence, over 1,500 miles.

Additionally, the notes were executed in the United States, the money was received

in the United States, and all evidence regarding their execution would seem to be

in this country.

As for the unfairness to the plaintiff in not assuming jurisdiction, the

notes clearly contemplated any action seeking recovery would occur in Nova

Scotia.

The fifth factor, the involvement of other parties to the suit, does not

apply in this case.

As for the sixth factor, the Canadian court’s willingness to recognize

and enforce an extra-provincial judgment rendered on the same jurisdictional basis,

it is likely, based on the discussion of Canadian jurisdictional case law above, that

a Nova Scotia court would not enforce a judgment that was based on similar facts

as we have here: a contract executed outside of the jurisdiction of the enforcing

court, a defendant who has never been to the enforcing court’s jurisdiction, and a

defendant who has never conducted business in the enforcing court’s jurisdiction.

-10- The seventh factor, whether the case is interprovincial or

international, would weigh in Appellee’s favor as it would be very inconvenient for

Appellee to travel internationally and most of the evidence regarding these

transactions would be in the United States.

As for the eighth factor, the standards of jurisdiction, recognition, and

enforcement prevailing elsewhere, we will have to examine jurisdictional

requirements of Kentucky. In Kentucky

the proper analysis of long-arm jurisdiction over a nonresident defendant consists of a two-step process. First, review must proceed under KRS 454.210 to determine if the cause of action arises from conduct or activity of the defendant that fits into one of the statute’s enumerated categories. If not, then in personam jurisdiction may not be exercised. When that initial step results in a determination that the statute is applicable, a second step of analysis must be taken to determine if exercising personal jurisdiction over the non-resident defendant offends his federal due process rights.

Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 57 (Ky. 2011).

KRS 454.210, Kentucky’s long-arm jurisdiction statute, states in

pertinent part:

(2) (a) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person’s:

1. Transacting any business in this Commonwealth;

2. Contracting to supply services or goods in this Commonwealth;

-11- 3. Causing tortious injury by an act or omission in this Commonwealth;

4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth, provided that the tortious injury occurring in this Commonwealth arises out of the doing or soliciting of business or a persistent course of conduct or derivation of substantial revenue within the Commonwealth;

5. Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when the seller knew such person would use, consume, or be affected by, the goods in this Commonwealth, if he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;

6. Having an interest in, using, or possessing real property in this Commonwealth, providing the claim arises from the interest in, use of, or possession of the real property, provided, however, that such in personam jurisdiction shall not be imposed on a nonresident who did not himself voluntarily institute the relationship, and did not knowingly perform, or fail to perform, the act or acts upon which jurisdiction is predicated;

7. Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;

8. Committing sexual intercourse in this state which intercourse causes the birth of a child when:

-12- a. The father or mother or both are domiciled in this state;

b. There is a repeated pattern of intercourse between the father and mother in this state; or

c. Said intercourse is a tort or a crime in this state; or

9. Making a telephone solicitation, as defined in KRS 367.46951, or a charitable solicitation as defined in KRS 367.650 via telecommunication, into the Commonwealth.

As for federal due process, in order for a court to have personal

jurisdiction over a defendant, that defendant must have minimum contacts with the

jurisdiction sufficient enough that “the maintenance of the suit does not offend

‘traditional notions of fair play and substantial justice.’” International Shoe Co. v.

State of Washington, Office of Unemployment Compensation and Placement, 326

U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945) (citations omitted).

The three-pronged test for minimum contacts . . . requires that: (1) defendant has purposely availed itself of the privilege of acting within the state; (2) the cause of action must arise from defendant’s activities; and (3) enough connections to the state must exist so that jurisdiction would be reasonable. In terms of a due process analysis, the defendant’s connection must be such “that he should reasonably anticipate being haled into court there.”

Sunrise Turquoise, 899 S.W.2d at 858 (citations omitted).

-13- Here, if Appellant were a resident of Kentucky and the notes had been

executed by Appellee in Nova Scotia, Appellant could not bring suit in Kentucky

against Appellee because none of the KRS 454.210 factors applies. Furthermore,

while the notes state that the contract should be construed as a Nova Scotia

contract, we do not believe that alone is sufficient to satisfy the minimum contacts

requirement of federal due process.

CONCLUSION

After examining the eight Harbert factors, Kentucky’s long-arm

statute, and federal due process, we conclude that the trial court correctly denied

Appellant’s motion for summary judgment and confirmation of the foreign

judgment. The Harbert factors determining personal jurisdiction in Nova Scotia

weigh more heavily in favor of Appellee. The only fact in Appellant’s favor is that

the notes state they are to be construed as Nova Scotia contracts. Appellee

executed the notes in the United States, has never set foot in Nova Scotia, does not

do business in Nova Scotia, and any evidence regarding the execution of the notes

would seem to be in the United States. There is no evidence in the record

regarding who drafted the notes, how Appellee acquired the notes, whether the

money was solicited by Appellee or offered by Appellant, or where the money

given to Appellee came from. Based on the foregoing, we affirm the judgment of

the Jefferson Circuit Court.

-14- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Matthew F. Coogle T. Morgan Ward, Jr. Patrick T. Eavenson Bethany A. Breetz Louisville, Kentucky Louisville, Kentucky

-15-