Old Dominion Distributors, Inc. v. Bissette

287 S.E.2d 409 (1982)

OLD DOMINION DISTRIBUTORS, INC. v. Jack W. BISSETTE and wife, Patsy S. Bissette.

No. 817DC591.

Court of Appeals of North Carolina.

March 2, 1982.

*410 Parker, Miles, Hinson & Williams by C. David Williams, Jr., Wilson, for plaintiff-appellee.

Farris, Thomas & Farris by William C. Farris, Wilson, for defendant-appellants.

ROBERT M. MARTIN, Judge.

Defendants' first assignment of error is that the trial court improvidently granted plaintiff's motion for summary judgment in the action by plaintiff to enforce the Virginia judgment. We agree.

Generally this State is required to give "full faith and credit" to the judgment of a sister state pursuant to Art. IV, § 1 of the Federal Constitution. The full faith and credit clause, however, does not prevent inquiry into the jurisdiction of the Virginia court, and if the Virginia court did not have jurisdiction the judgment is void. Marketing Systems v. Realty Co., 277 N.C. 230, 176 S.E.2d 775 (1970); State v. Williams, 224 N.C. 183, 29 S.E.2d 744 (1944); Prather, Thomas, Campbell, Pridgeon, Inc. v. Properties, Inc., 29 N.C.App. 316, 224 S.E.2d 289 (1976).

The Virginia judgment, attached as plaintiff's Exhibit A to its complaint, does not refer to that court's jurisdiction over defendants. If the judgment had recited that the court rendering it had jurisdiction, the court of another state in which the judgment is asserted as a cause of action or a defense, could make its own independent determination as to the rendering court's jurisdiction. Id. Thus we are not precluded from making an independent inquiry into the jurisdiction of the Virginia court. Only if the jurisdiction is, itself, an issue which has been fully litigated in, and determined by, the foreign court which rendered the judgment, is the judgment entitled to full faith and credit. Hosiery Mills v. Burlington Industries, 285 N.C. 344, 204 S.E.2d 834 (1974); Prather, Thomas, Campbell, Pridgeon, Inc. v. Properties, Inc., supra.

In the present case it appears that plaintiff is a Virginia corporation; that the defendants lived in Virginia in 1970 when the alleged contract was entered into; and that defendants moved to North Carolina shortly thereafter and resided in North Carolina in *411 1974 when plaintiff commenced its action in Virginia. The defendant Jack Bissette asserts that he never entered into a contract with plaintiff; defendants assert that plaintiff refused to perform the contract; and that the Virginia judgment was null and void because no legal and proper service of process was had on defendants.

Clearly, the defendants' answer raised the issue of the jurisdiction of the Virginia court which rendered the judgment. Defendants had the right to raise this issue in the North Carolina courts because the issue had not been fully litigated in and determined by the Virginia court, because the defendants did not appear in the Virginia action, and because there is nothing in the record to indicate that they consented to the jurisdiction of that court. Prather, Thomas, Campbell, Pridgeon, Inc. v. Properties, Inc., supra at 318, 224 S.E.2d 291.

On the motion for summary judgment the test is whether the pleadings and materials offered in support of the same show that there is no genuine issue as to any material fact. If there is no such issue, then the sole question for the court's determination is whether the party is entitled to the judgment as a matter of law. Weaver v. Insurance Co., 20 N.C.App. 135, 201 S.E.2d 63 (1973). The burden is on the movant to establish the lack of genuine issue of material fact, one where the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970).

We find that the plaintiff's complaint, affidavit, exhibits, and copy of the judgment of the Virginia court which were offered in support of its motion for summary judgment were not sufficient to establish the lack of the genuine issue of material fact, that is, proper service of process and in personam jurisdiction of the Virginia court over the defendants.

The judgment of the trial court apparently granted summary judgment for the plaintiff on defendants' counterclaim. Whether the defendants are entitled to pursue their counterclaim against plaintiff is dependent upon the determination of the issue of jurisdiction by the Virginia court. If the Virginia court properly served the defendants and had in personam jurisdiction over defendants, it is possible that the defendants, having failed to prosecute their counterclaim in Virginia, would be barred from prosecuting the same in this action. We, therefore, find that summary judgment on the defendants' counterclaim was improvidently granted.

We have considered the additional questions raised by plaintiff in its brief and find them to be without merit and overruled.

The summary judgment for plaintiff on its action to enforce the Virginia judgment, and for the plaintiff on defendants' counterclaim, is

Reversed and remanded.

WELLS, J., concurs.

WEBB, J., dissents.

WEBB, Judge, dissenting.

I dissent from the majority. I believe the record shows without contradiction that the defendants were properly served under Section 8.01-320 of the Virginia Code. The Virginia court had jurisdiction of the parties under Section 8.01-328.1(A)(1) of the Virginia Code. The record also shows a default judgment was entered. We are bound by the United States Constitution to give full faith and credit to the Virginia judgment. I vote to affirm the judgment of the district court.