Whipple v. JSZ Financial Co., Inc.

885 So. 2d 933, 2004 Fla. App. LEXIS 15892, 2004 WL 2387727
CourtDistrict Court of Appeal of Florida
DecidedOctober 27, 2004
Docket4D03-153, 4D03-3332, 4D03-3537
StatusPublished
Cited by7 cases

This text of 885 So. 2d 933 (Whipple v. JSZ Financial Co., Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whipple v. JSZ Financial Co., Inc., 885 So. 2d 933, 2004 Fla. App. LEXIS 15892, 2004 WL 2387727 (Fla. Ct. App. 2004).

Opinion

885 So.2d 933 (2004)

Claire WHIPPLE, Appellant,
v.
JSZ FINANCIAL COMPANY, INC., Appellee.

Nos. 4D03-153, 4D03-3332, 4D03-3537.

District Court of Appeal of Florida, Fourth District.

October 27, 2004.
Rehearing Denied November 24, 2004.

*935 Michael A. Pfundstein of Tripp Scott, P.A., Fort Lauderdale, for appellant.

J.H. Zidell of J.H. Zidell, P.A., Miami Beach, for appellee.

SHAHOOD, J.

This is a consolidation of three appeals. In the first appeal, Claire Whipple (Whipple) appeals an adverse final judgment enforcing a default judgment entered against her in favor of JSZ Financial Company, Inc. (JSZ) by a Texas court. She also appeals a final judgment ordering her to pay costs to JSZ. The third appeal is by JSZ from an order denying its motion for attorney's fees.

This case began on June 14, 1996 in Dallas County, Texas, when JSZ obtained a default judgment against Whipple in the amount of $18,566.45. JSZ subsequently recorded the judgment in Broward County, Florida, in October of that same year, and mailed notice to Whipple. In November, JSZ filed motions in the Broward County Circuit Court, seeking to enforce the judgment by having one of Whipple's bank accounts garnished.

Whipple filed a motion to dissolve the writ of garnishment arguing, among other things, that the Texas judgment was void and of no force because she was not properly served in that action and was, therefore, not subject to the jurisdiction of the Texas court. She also filed a counterclaim against JSZ asserting the failure of service of process and the invalidity of the foreign judgment. In a supporting affidavit, Whipple stated that she first learned of the Texas action and resulting judgment when she was notified by her bank of the garnishment proceedings. The court denied Whipple's motion for summary judgment on her counterclaim as well as JSZ's motion to strike the counterclaim.

After JSZ obtained a Writ of Execution authorizing the seizure of Whipple's personal property, namely her Mercedes Benz, she satisfied the judgment with a cashier's check in the amount of $20,045.60, which included interest and the sheriff's cost. The court then granted JSZ's motion to dismiss after filing satisfaction of judgment. The motion was first granted without prejudice and later with prejudice, with Whipple's counterclaim being dismissed as well. This court reversed that order, holding that because the judgment was satisfied under the threat of levy of execution, the satisfaction was not voluntary and Whipple did not waive her rights to proceed with her challenge to the validity of the Texas judgment. Whipple v. JSZ Fin. Co., 717 So.2d 608, 609 (Fla. 4th DCA 1998).

On remand, following a hearing, the trial court entered final judgment in favor of JSZ, based on the following findings:

[T]he Dallas Court had jurisdiction over the Defendant and the Judgment it entered was valid. The Court finds good service when the method employed is reasonably calculated to put a party on notice. The Defendant had the indicia of residence in Texas. The Defendant admitted receiving mail at her Texas address that she chose not to open, but put in a box and brought to Florida. The burden is on the Defendant to show that the Texas Judgment is invalid, and this she has failed to do. The thirty-day time period to appeal the Texas Judgment has long expired.

Accordingly, the trial court entered final judgment in favor of JSZ, noting that the judgment had been previously satisfied. *936 In addition, the court entered a judgment for costs against Whipple, ordering her to pay JSZ costs in the amount of $3,407.91, plus post-judgment interest. JSZ's motion for attorney's fees pursuant to a prior offer of judgment was denied. For the following reasons, we reverse both the final judgment and the judgment on costs against Whipple, and affirm the order denying JSZ's motion for attorney's fees.

In the trial court below, Whipple contested the validity of the final judgment of default on the ground that service of process in Texas was not properly effectuated. Prior to addressing the merits of this claim, we first address JSZ's arguments that Whipple waived this issue by either failing to appeal the Texas judgment or failing to contest the default judgment when it was recorded in Florida. Neither argument has merit.

We are mindful of the fact that judgments of foreign courts are to be given full faith and credit of the law by courts in every jurisdiction. See Art. IV, § 1, U.S. Const. An exception to this requirement, however, occurs when the foreign court lacked either personal or subject matter jurisdiction. See In re Estate of O'Keefe, 833 So.2d 157, 160 (Fla. 2d DCA 2002).

The issue of whether a foreign court had jurisdiction is res judicata and not subject to collateral attack if it was previously addressed in the foreign court and the defendant had a full and fair opportunity to litigate the issue in the foreign court. See Baker v. Bennett, 633 So.2d 91 (Fla. 4th DCA 1994). If, however, the defendant did not have the opportunity to contest jurisdiction, he may raise the issue subsequently in a proceeding brought to enforce the judgment. See Wellington v. Dep't of Revenue, 708 So.2d 1040 (Fla. 4th DCA 1998)(where foreign judgment was entered by default and defendant had no prior opportunity to answer or contest jurisdiction, he could litigate that issue in Florida court); accord Best Form, Inc. v. Richards Prods., Inc., 631 So.2d 1123, 1124 (Fla. 4th DCA 1994).

In this case, there is no dispute that the Texas judgment was entered against Whipple by default. Whipple argues that her failure to respond was because she was not properly served and therefore had no notice. The case of Archbold Health Services, Inc. v. Future Tech Business Systems, Inc., 659 So.2d 1204 (Fla. 3d DCA 1995), upon which JSZ relies, is distinguishable. In Archbold Health Services, the Third District Court of Appeal upheld a foreign default judgment where, although the defendant did not appear at the default hearing, the Georgia trial court considered the defendant's jurisdictional arguments which had been made in a previously filed motion to dismiss the complaint. Id. at 1205. That is not the case here. It is undisputed that Whipple did not physically attend the default hearing in Texas and did not file any pleadings, arguments, evidence, or memoranda which the trial court considered before entering the judgment. Thus, Whipple did not litigate the issue of the validity of the service of process either in person or otherwise.

JSZ's second argument in support of waiver is that Whipple failed to object to the foreign judgment within thirty days after it was recorded in Florida; therefore, pursuant to section 55.509, Florida Statutes (1995), the issue has been waived. Section 55.509, "Stay of enforcement of foreign judgment," states:

(1) If, within 30 days after the date the foreign judgment is recorded, the judgment debtor files an action contesting the jurisdiction of the court which entered the foreign judgment or the validity *937 of the foreign judgment and records a lis pendens directed toward the foreign judgment, the court shall stay enforcement of the foreign judgment and the judgment lien upon the filing of the action by the judgment debtor.

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885 So. 2d 933, 2004 Fla. App. LEXIS 15892, 2004 WL 2387727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whipple-v-jsz-financial-co-inc-fladistctapp-2004.