Legum v. Brown

WILNER, Judge. The issue before us is whether, on this very sparse record, a plaintiff who recovered a money judgment against a Maryland decedent’s Estate from a Colorado court is entitled to have that judgment accorded full faith and credit in Maryland. The Circuit Court for Anne Arundel County said “no.” The Court of Special Appeals sent the case back for further proceedings. We shall say “yes.” In July, 2003, Shirley Brown, as personal representative of the Estate of her late husband, Thomas Brown, recovered from the District Court of El Paso, Colorado, a judgment by default for $60,000 against the Estate of Archie Brown.

Archie and Thomas Brown were brothers. Archie lived and died in Maryland; Thomas lived and died in Colorado. ¹⁴¹ On December 4, 2003, Shirley filed a petition in the Circuit Court for Anne Arundel County to “transfer” the Colorado judgment. A copy of the judgment, certified by the clerk of the Colorado court, was attached to the petition. The Clerk of the Circuit Court recorded the Colorado judgment and gave notice of the recording to petitioner, Alan Legum, as personal representative of the Estate of Archie Brown.

Mr. Legum filed a motion to strike the Colorado judgment on three grounds: (1) the Estate of Archie Brown had never been properly served with process in the Colorado case; (2) because Archie was neither a resident of Colorado nor conducted business there, the Colorado court had no jurisdiction over him; and (3) no claim had been filed by Shirley in the Orphans’ Court for Anne Arundel County within six months after the death of Archie. Ms. Brown, acting pro se, responded with a motion to “retain” the judgment, averring that the case was brought in Colorado because that is where “the injustice originated,” that Archie did do business and had hired a lawyer in Colorado, that his Colorado lawyer did not inform her of Archie’s death, and that the judgment was entitled to full faith and credit. After a hearing, the court entered a brief order striking the judgment. In a footnote in that order, the court stated that its order was based on “all the reasons stated by Defendant’s counsel in his written brief and through oral arguments,” but it found, specifically, that Ms. Brown failed to file her claim with the Estate of Archie Brown within six months of Archie’s death and that she failed to make proper service on the Estate.

Following a denial of her motion for reconsideration, Ms. Brown noted an appeal. The Court of Special Appeals concluded that the Circuit Court had erred in relying on either of the two grounds noted specifically in the order. It held that there was proper service on Legum under Colorado law and that the relevant issue was not whether a claim against the Estate had been timely filed but only whether the Colorado court had fully litigated the question of its subject matter and personal jurisdiction and, if not, whether such jurisdiction existed. To that end, the appellate court vacated the Circuit Court’s order striking the ¹⁴² judgment and remanded the case for the Circuit Court “to confirm that the jurisdictional issues were not fully litigated in Colorado, and, if they were not, to decide the issues, should they continue to be pressed by the Estate.” Brown v. Legum, 166 Md.App. 401, 413-14 , 890 A.2d 771, 779 (2006).

We granted Mr. Legum’s petition for certiorari and shall reverse the judgment of the Court of Special Appeals. We do not believe that any remand is necessary. The Legal Setting Article IV, § 1 of the United States Constitution requires that full faith and credit be given in each State to the public Acts, Records, and judicial Proceedings of every other State and authorizes Congress, by law, to prescribe the manner in which such Acts, Records, and Proceedings shall be proved. Congress has exercised that authority.

Title 28 U.S.C. § 1738 provides, in relevant part, that the records and judicial proceedings of a court “shall be proved or admitted in other courts within the United States ... by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.” Section 1738 continues that such judicial proceedings, “so authenticated,” shall have the same full faith and credit in every court within the United States as they have by law or usage in the State where they occurred. In its own partial implementation of the full faith and credit mandate, Maryland has adopted the Uniform Enforcement of Foreign Judgments Act, which appears in Maryland Code, §§ 11-801 through 11-807 of the Cts. & Jud. Proc. Article (CJP). 1 Section 11-802 requires that a foreign judgment over ¹⁴³ certain specified amounts that is “authenticated in accordance with an act of Congress or statutes of this State ” may be filed with the clerk of the Circuit Court, and that a foreign judgment so filed “has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed.” (Emphasis added).

The italicized language is important. CJP § 10-204(a) provides, in relevant part, that a copy of a public record or proceeding of any agency of the government of any State shall be received in evidence “if certified as a true copy by the custodian of the record ... or proceeding----” Section 10-204(c) provides that the certification shall include “[t]he signature and title of the custodian or other person authorized to make the certification, the official seal, if any, of the office, and a statement certifying that the copy is a true copy of the public record.” Unlike the Federal statute, 28 U.S.C. § 1738 , CJP § 10-204 does not require that a judge certify the propriety of the clerk’s attestation. The Order of Judgment that accompanied Ms. Brown’s petition contains what purports to be an original certificate by the clerk of the Colorado court that the document is “a true, and correct copy of the original in my custody” and a seal of the court, but it does not contain any certification of a judge that the clerk’s attestation was in proper form. The document would thus not pass muster under § 1738.

The case law makes clear, however, that the mode of authenticating State court records specified in § 1738 is not exclusive and that judicial documents from another State will be admitted into evidence and enforced in a forum State if they are attested or certified in a manner that complies with the law of the forum State. See General Acceptance Corporation v. Holbrook, 254 Miss. 78 , 179 So.2d 845, 846 (1965); State v. Wolfskill, 421 S.W.2d 193, 195 (Mo.1967); Price v. Price, 4 Ohio App.3d 217 , ¹⁴⁴ 447 N.E.2d 769, 772 (1982); Murphy v. Murphy, 581 P.2d 489, 492 (Okla.App.1978); Commonwealth v. Halteman, 192 Pa.Super. 379 , 162 A.2d 251, 254 (1960); United States v. Mathies, 350 F.2d 963 (3rd Cir.1965); Donald v. Jones, 445 F.2d 601 (5th Cir.1971), cert. denied, 404 U.S. 992 , 92 S.Ct. 537 , 30 L.Ed.2d 543 (1971). It is evident — and Legum has not disputed — that the copy of the judgment that accompanied Ms. Brown’s petition was attested in the manner required by CJP §§ 10-204 and 11-802 and that, at least in form, it was therefore eligible for being accorded full faith and credit. In Durfee v. Duke, 375 U.S. 106 , 84 S.Ct. 242 , 11 L.Ed.2d 186 (1963), the Supreme Court construed the Constitutional command of full faith and credit as a requirement that every State give the judgment of a court of another State “at least the res judicata effect which the judgment would be accorded in the State which rendered it.” Id. at 109 , 84 S.Ct. at 244 , 11 L.Ed.2d at 190 .

See also Underwriters Assur. Co. v. N.C. Guaranty Assn., 455 U.S. 691, 704 , 102 S.Ct. 1357, 1366 , 71 L.Ed.2d 558, 570 (1982). Consistent with that principle is the caveat, confirmed in both Durfee and Underwriters, that “a judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits — had jurisdiction, that is, to render the judgment.” Durfee, supra, 375 U.S. at 110 , 84 S.Ct. at 244 , 11 L.Ed.2d at 190 ; Underwriters, supra, 455 U.S. at 704 , 102 S.Ct. at 1366 , 71 L.Ed.2d at 570 . See also Matsushita Elec.

Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 386 , 116 S.Ct. 873, 884 , 134 L.Ed.2d 6, 25 (1996). That caveat allows the court in the forum State, when asked to give effect to the judgment of a court of another State, to “inquire into the foreign court’s jurisdiction to render that judgment.” Durfee, supra, 375 U.S. at 111 , 84 S.Ct. at 245 , 11 L.Ed.2d at 191 . See also Adam v. Saenger, 303 U.S. 59 , 58 S.Ct. 454 , 82 L.Ed. 649 (1938); Van Wagenberg v. Van Wagenberg, 241 Md. 154, 160-61 , 215 A.2d 812, 815 (1966), cert. denied, 385 U.S. 833 , 87 S.Ct. 73 , 17 L.Ed.2d 68 (1966); Imperial Hotel v. Bell Atlantic, 91 Md.App. 266, 270 , 603 A.2d 1371, 1373 (1992). ¹⁴⁵ An independent inquiry into the foreign court’s jurisdiction is not automatic, however, and, when undertaken in response to a jurisdictional attack, is subject to some limitations.

It has long been recognized that, when a foreign judgment is properly authenticated and it appears on the face of the judgment that the court was a court of record of general jurisdiction, “jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence or by the record itself.” Adam v. Saenger, supra, 303 U.S. at 62 , 58 S.Ct. at 456 , 82 L.Ed. at 651 ; Milliken v. Meyer, 311 U.S. 457, 462 , 61 S.Ct. 339, 342 , 85 L.Ed. 278, 282 (1940); Hanley v. Donoghue, 116 U.S. 1, 6 , 6 S.Ct. 242, 245 , 29 L.Ed. 535, 537 (1885). See also Mundy v. Jacques, 116 Md. 11, 20 , 81 A. 289, 292 (1911) (“While a court of one state can inquire into the jurisdiction of the court of another state, which has rendered a judgment sought to be enforced, the presumption is in favor of the jurisdiction, and, of course, an officer’s return to process.”). In support of that conclusion, the Mundy Court quoted with approval from 17 Am. & Eng. Ency. of Law, 1073: “A superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to have jurisdiction to give the judgment it renders until the contrary appears; and this presumption embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment is given, but of the parties also.

It will accordingly be presumed that all the facts necessary to give the Court jurisdiction to render the particular judgment were duly found.” Mundy v. Jacques, supra, 116 Md. at 20-21 , 81 A. at 292 . That principle was confirmed in Coane v. Girard Trust Co., 182 Md. 577, 580 , 35 A.2d 449, 451 (1944) (“In deference to the comity due from one state to another, we hold that an authenticated copy of the record upon which a judgment has been rendered is prima facie evidence of jurisdiction.”). It follows from that presumption, at least as a general rule, that, when a properly authenticated copy of a foreign judgment is presented for recording and enforcement, the burden is on a resisting party to establish that the rendering ¹⁴⁶ court lacked either subject matter or personal jurisdiction. See Sutton v. Leib, 342 U.S. 402, 408 , 72 S.Ct. 398, 402 , 96 L.Ed. 448, 455 , reh. denied, 343 U.S. 921 , 72 S.Ct. 674 , 96 L.Ed. 1334 (1952); Cook v. Cook, 342 U.S. 126, 128 , 72 S.Ct. 157, 159 , 96 L.Ed. 146 , 149 (1951); Packer Plastics, Inc. v. Laundon, 214 Conn. 52 , 570 A.2d 687, 690 (1990); Winston v. Millaud, 930 So.2d 144, 151 (La.App.2006); Davis v. Davis, 799 S.W.2d 127, 133 (Mo.App.1990); Commercial Coin Laundry Systems v. Enneking, 766 N.E.2d 433, 439 (Ind.App.2002); Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975); Driver v. Driver, 148 Vt. 560 , 536 A.2d 557, 559, n. 1 (1987).

There appears to be some difference of opinion whether that rule, placing the burden of showing an absence of jurisdiction on the party resisting recognition of the foreign judgment, applies when that judgment was entered by default. Most of the courts that have considered the issue have either directly or implicitly held that the presumption of jurisdiction and placement of the burden on the party resisting recognition of the foreign judgment to prove lack of jurisdiction apply even when the foreign judgment was entered by default. See Hansen v. Pingenot, 739 P.2d 911 (Colo.App.1987); L & L Wholesale, Inc. v. Gibbens, 108 S.W.3d 74 (Mo.App.2003); Gletzer v. Harris, 159 S.W.3d 462 (Mo.App.2005); Will of Kellner, 108 Misc.2d 667 , 438 N.Y.S.2d 705 (Surrog.Ct.1981); Lust v. Fountain of Life, Inc., 110 N.C.App. 298 , 429 S.E.2d 435 (1993); Thompson v. Santiago, 57 Pa. D. & C. 4th 170 , 2001 WL 34047931 (2001); Markham v. Diversified Land & Exploration Co., 973 S.W.2d 437 (Tex.App.1998).

Courts in Georgia have held to the contrary. See Saye v. King, 255 Ga.App. 276 , 564 S.E.2d 859 (2002). We choose to follow the majority approach. The fact that a judgment is entered by default, due to a failure on the part of the defendant to appear and contest the complaint, in no way denigrates the presumption that, in entering a judgment that is regular on its face, a court of general jurisdiction acts within the scope of its subject matter jurisdiction.

Nor is there any reason, if there is to be a contest as to the personal ¹⁴⁷ jurisdiction of the foreign court, whether because the defendant was not subject to suit in the foreign jurisdiction or because the defendant, even if subject to suit there, was not properly served, not to place the burden on the defendant to raise that defense and provide sufficient evidentiary support to rebut the presumption. Obviously, if the person resisting registration or enforcement of the foreign judgment asserts a lack of subject matter or personal jurisdiction and offers some competent evidence to support the attack, the forum court must make an inquiry and determine from the evidence whether jurisdiction existed. It cannot give full faith and credit to the judgment based solely on the presumption of regularity once competent and persuasive evidence is presented that is facially sufficient to