DARIUS ROGOWSKI v. L AND C Europa Contracting Co.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4423-04T14423-04T1

DARIUS ROGOWSKI,

Plaintiff-Respondent,

v.

L&C EUROPA CONTRACTING COMPANY, INC.,

Defendant-Appellant.

 
_____________________________________

Submitted: November 1, 2005 - Decided June 9, 2006

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Passaic County, DJ-301375-04.

Peckar & Abramson, attorneys for appellant (Robert A. Drucker and Andrew D. Ceitlin, on the brief).

Williams, Caliri, Miller & Otley, attorneys for respondent (David Golub, and Stanley B. Dritz and Melissa R. Lipchak of the Ohio Bar, of counsel and on the brief).

PER CURIAM

Defendant, L&C Europa Contracting Company, appeals from an order entered on March 15, 2005, denying its motion "seeking to be relieved from and vacating and setting aside the Ohio judgment entered in favor of plaintiff and against defendant and recorded in the Superior Court of New Jersey on November 9, 2004[.]" We affirm.

An initial judgment was entered by the Court of Common Pleas of Franklin County, Ohio, on a default basis, on May 22, 2001. The "Entry" order by Judge Brunner provided for a proof hearing on July 2, 2001. In a motion dated June 21, 2001, defendant sought an order "set[ting] aside default judgment due to excusable neglect." The motion and supporting affidavit by counsel, in addition to asserting excusable neglect, contended that defendant had a "just and complete defense to the claim[,]" and submitted a proposed answer to the complaint, which defendant sought leave to file. Plaintiff moved to strike defendant's answer; and, on the basis of lack of personal knowledge, to strike the attorney's affidavit supporting defendant's motion, as well.

The underlying claim was for personal injury incurred while plaintiff was employed by defendant as a laborer. Plaintiff alleged a right to seek relief in a civil action by reason of the intentional-tort exception to the workers' compensation bar under Ohio law. Defendant, in its motion papers, set forth four defenses to the claim: improper service, improper venue, failure to establish that defendant intentionally, i.e., "negligently and recklessly" caused plaintiff's injuries; and estoppel on the ground that plaintiff had applied for workers' compensation benefits.

On January 4, 2002, Judge Brunner, after considering the arguments made and authorities relied upon, rendered an opinion and entered an order disposing of the motions. Her order granted plaintiff's motion to strike the answer and denied defendant's motion to set aside the default judgment. The order directed plaintiff's counsel to request a rescheduled proof hearing.

A magistrate conducted the proof hearing on April 19, 2002 and, on June 12, 2002, awarded plaintiff a judgment of $212,082.33. On June 26, 2002, defendant filed objections to the magistrate's decision. On July 16, 2002, Judge Brunner entered an order adopting the magistrate's decision. In that order, she noted that "[n]o objections ha[d] been filed." Defendant appealed, but that appeal was dismissed on the joint motion of the parties "so that the Common Pleas Court can address the objections to the magistrate's decision[.]" On March 4, 2004, following reconsideration of the magistrate's decision in the light of the objections, Judge Brunner entered a decision and order in which she "overruled" defendant's objections and adopted the magistrate's decision.

The focus of the matter then shifted to New Jersey. The record contains a "notice to judgment debtor" in the usual form from the Clerk of the Superior Court, which defendant represents it received on November 12, 2004. The notice stated, inter alia, that, on November 9, 2004, plaintiff had recorded the Ohio judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, N.J.S.A. 2A:49A-25 to -33, and that a writ of execution or other process might issue after fourteen days.

On December 23, 2004, defendant moved in the Law Division "to vacate [the] judgment." On March 15, 2005, Judge Waks, after considering the written submissions and oral arguments of counsel, rendered an opinion on the record and entered the order denying the motion from which defendant appeals. In his oral opinion, Judge Waks held that "due process is not offended" by what had occurred in the Ohio courts. He found "generally that the due process questions were raised, were considered by the Ohio court and adequately decided in Ohio and I cannot disturb them."

On appeal, defendant argues that the trial court erred in its determination that the Ohio proceedings embodied no due process flaw. Defendant also contends that New Jersey is not required to give full faith and credit to the Ohio default judgment, "as Ohio lacked jurisdiction." In the latter connection, defendant assigns error to the trial court's determination that the Ohio Court properly considered issues of personal jurisdiction. Defendant also calls attention to the absence in the Ohio court's decision of any express discussion of the subject matter jurisdiction issue. Defendant argues specifically that the Ohio judgment "is void due to the Ohio court's lack of subject matter jurisdiction over a workers' compensation matter."

We have reviewed the record in the light of the arguments advanced by the parties and prevailing legal standards. Our analysis discloses that defendant had every opportunity, before the Ohio trial court, to raise every argument it now advances to us. And, except for the aborted appeal from the first judgment for damages that embodied an acknowledged error, defendant has not sought relief from the ultimate judgment in the appellate courts of Ohio, wherein it might well have raised all the arguments it has posed in this matter.

Considering the historical underpinnings of the Full Faith and Credit Clause, U.S. Const. art. IV, 1, see also 28 U.S.C.A. 1738, it is not our place to review the bases of a decision rendered in a sister state as long as jurisdiction existed and due process was afforded. See Sonntag Reporting Serv. v. Ciccarelli, 374 N.J. Super. 533, 538 (App. Div. 2005). Where the courts in the rendering state afforded defendant a full opportunity to litigate the jurisdictional issues, we may not impede efforts to enforce the judgment entered. "[A] judgment is entitled to full faith and credit even as to questions of jurisdiction when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment." Durfee v. Duke, 375 U.S. 106, 111, 84 S. Ct. 242, 245, 11 L. Ed. 2d 186, 191 (1963). See also Baldwin v. Iowa State Traveling Men's Ass'n., 283 U.S. 522, 525-27, 51 S. Ct. 517, 518, 75 L. Ed. 1244, 1247 (1931); Security Benefit Life Ins. Co. v. TFS Ins. Agency, Inc., 279 N.J. Super. 419, 424 (App. Div.), certif. denied, 141 N.J. 95 (1995); Ohio Civ. R. 4.3(A)(3), 8(C), 12(B), (C) and (H), 9(A), 60(B). "After a party has his day in court, with opportunity to present his evidence and his view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined. There is no reason to expect that the second decision will be more satisfactory than the first." Stoll v. Gottlieb, 305 U.S. 165, 172, 59 S. Ct. 134, 138, 83 L. Ed. 104, 109 (1938). "[O]nce the matter has been fully litigated and judicially determined, it can[not] be retried in another State in litigation between the same parties." Durfee, supra, 375 U.S. at 115, 84 S. Ct. at 247, 11 L. Ed. 2d at 193.

That the focal issues, including those of personal and subject matter jurisdiction, might have been more effectively presented to the rendering state's courts than they were, is no basis for asserting that this State may ignore the findings and decisions made in the rendering state. That the trial court in the rendering state might not have given sufficiently full consideration to all the arguments raised, is an issue to be presented to the appellate courts of that state and not to any court in this State. See Security Benefit Life, supra, 279 N.J. Super. at 424-26. In circumstances such as those presented here, we may not rule on questions of Ohio law that defendant had every opportunity to litigate in Ohio but did not pursue to the desired effect. Given the governing principles, it is of no consequence in this proceeding that the issue of subject matter jurisdiction may not have been fully fleshed out by defendant to the Ohio court or that the Ohio trial court may not have expressly addressed all the nuances that issue presented. Defendant bore the responsibility to avail itself fully of the opportunity to try the issues and appeal afforded by Ohio's laws and rules of procedure. If it fell short in availing itself of that opportunity, it cannot now call upon the courts of this State to supply a remedy.

The record on appeal establishes beyond peradventure that defendant had a full opportunity to litigate, in Ohio, all the grounds he has advanced here for not honoring the ultimate judgment entered there: the lack of personal jurisdiction, the absence of subject matter jurisdiction, and the workers' compensation bar to a civil action claim. Judge Waks was correct to deny defendant's motion.

Affirmed.

 

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A-4423-04T1

June 9, 2006