ALAN JOSEPH ISACK V CAROLYN ELISE ISACK
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STATE OF MICHIGAN
COURT OF APPEALS
ALAN JOSEPH ISACK,
FOR PUBLICATION
February 13, 2007
9:05 a.m.
Plaintiff-Appellant,
v
No. 270456
Oakland Circuit Court
LC No. 2005-066043-CZ
CAROLYN ELISE ISACK,
Defendant-Appellee.
Official Reported Version
Before: Kelly, P.J., and Davis and Servitto, JJ.
DAVIS, J.
Plaintiff appeals as of right from an order granting summary disposition to defendant in
this action to enforce a Canadian court order for payment of costs under the Uniform Foreign
Money-Judgments Recognition Act (UFMJRA), MCL 691.1151 et seq. We affirm.
The parties were married in 1988. In 1994, defendant sued plaintiff for divorce in
Ontario, Canada, and the Canadian court issued a judgment of divorce in July 1998. The
judgment awarded custody of the parties' daughter to defendant and ordered plaintiff to pay
$1,0001 a month in child support, in addition to other child-rearing expenses. Apparently, a
continuing dispute over custody gave rise to a second case that plaintiff initiated against
defendant, also in Canada. In that second case, the Canadian court issued an order against
defendant in the nature of sanctions for failure to comply with discovery, and it ordered certain
unidentified "pleadings" struck on June 25, 2004. In November 2004, plaintiff moved in the
Canadian court, apparently unopposed, for summary disposition and for $110,000 in costs and
attorney fees. The Canadian court granted that motion, and a copy of the order was mailed to
defendant at her home in Michigan. In April 2005, plaintiff filed this action seeking to enforce
the order for payment of costs under the UFMJRA. Defendant contended that the Canadian
order was not a "foreign judgment" because attorney fee awards were in the nature of fines or
1
Apparently, all sums of money referred to in this matter are computed in Canadian dollars,
although this is not always clearly indicated in the pleadings.
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penalties; and in any event she did not have notice of the motion that resulted in the order, so it
need not be recognized. The parties each moved for summary disposition, which the trial court
denied to plaintiff and granted to defendant.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR
2.116(C)(10), which tests the factual sufficiency of the complaint, we consider all evidence
submitted by the parties in the light most favorable to the nonmoving party and grant summary
disposition only where the evidence fails to establish a genuine issue regarding any material fact.
Id. at 120. Statutory interpretation is also a question of law that is reviewed de novo on appeal.
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002).
Plaintiff first argues that the trial court correctly determined that the order requiring
defendant to pay $110,000 in fees and costs to plaintiff is a "foreign judgment" under the
UFMJRA. We agree. The UFMJRA defines a "foreign judgment" as "any judgment of a foreign
state granting or denying recovery of a sum of money, including a judgment for support in
matrimonial or family matters, but not including a judgment for taxes, a fine or other penalty."
MCL 691.1151(b). "Foreign state" includes "any governmental unit other than the United States
. . . ." MCL 691.1151(a). The trial court correctly concluded that the Canadian order constituted
a "foreign judgment" under MCL 691.1151(b). The UFMJRA applies "to any foreign judgment
that is final and conclusive and enforceable where rendered . . . ." MCL 691.1152. Such a
judgment "is conclusive between the parties to the extent that it grants or denies recovery of a
sum of money," unless excepted under MCL 691.1154. MCL 691.1153. The only real issue in
this appeal is whether the trial court correctly determined that MCL 691.1154(2)(a) applies;
under that section, a foreign judgment need not be recognized if "[t]he defendant in the
proceedings in the foreign court did not receive notice of the proceedings in sufficient time to
enable him to defend."
The UFMJRA does not define whether "notice of the proceedings" refers to notice of the
commencement of the case as a whole or to notice of the particular relevant action taken within
the case. Moreover, there are no published cases in Michigan on point. Our review of the few
relevant cases from outside Michigan2 supports defendant's position that recognition of a
judgment may be declined where the defendant was aware, or waived notice, of the litigation,
but where the defendant was not notified of certain actions taken within the suit.
2
Some courts inexplicably apply the UFMJRA to judgments rendered by sister states, despite
the UFMJRA's exclusive application to judgments issued by courts of foreign countries. MCL
691.1151; Peters Production, Inc v Desnick Broadcasting Co, 171 Mich App 283, 285; 429
NW2d 654 (1988).
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In Chabert v Bacquié, 694 So 2d 805 (Fla App, 1997), the plaintiff sued the defendant in
the French equivalent of the circuit court. The defendant "was served with process, and the
French trial court acquired personal jurisdiction over him." He successfully defended the case,
obtaining a judgment in his favor. Id. at 808. The plaintiff appealed the judgment in a French
court of appeal, which reversed and entered a money judgment against the defendant. The
plaintiff later filed suit in Florida for recognition of the French judgment. Id. at 809-810. The
defendant opposed recognition in part under the equivalent of Michigan's § 4(2)(a) exception on
the ground that he had not received actual notice of the pendency of the appeal. The Florida
court rejected that argument not because the pending appeal was not a proceeding of which the
defendant had not received notice but because the defendant was responsible for the lack of
notice—he had failed "to keep the French court apprised of his current residence address." Id. at
815.
In Titan PRT Sys, Inc v Fabian, 6 Mass L Rptr 345 (Mass Super, 1997), the plaintiffs
sued the defendant in New Jersey. The defendant was served with process but did not file an
answer and the plaintiffs obtained a default judgment with respect to liability. The court then set
a hearing to determine damages. The defendant was not given notice of the hearing, such notice
not being required under New Jersey court rules at the time, and he did not appear. The court
held the hearing and entered a money judgment for the plaintiffs. The Massachusetts court
determined that there was a question of fact concerning whether recognition of the judgment
should be declined because failure to provide notice of the damages hearing "could constitute a
failure of 'notice of the proceedings in sufficient time to defend'" under the applicable
Massachusetts statute. Id. at 346.
In Choi v Kim, 50 F3d 244 (CA 3, 1995), the defendant gave the plaintiff a promissory
note to secure a debt. The note provided for immediate entry of an order of execution. The
defendant defaulted and the plaintiff obtained an order of execution in Korea, which he sought to
enforce in a United States court. Id. at 246. Assuming that the order amounted to a judgment,
the court declined to recognize it because the defendant had not been given notice of the order
after it was issued, despite the fact that the Korean rules of procedure did not require such notice,
id., and the appellate court affirmed. Id. at 249-250.
In Third Nat'l Bank of Nashville v Tagnani, 18 Pa D & C 4th 92 (Pa Com Pleas, 1993),
the plaintiff sued the defendant in Tennessee. The defendant apparently was served with process
because he filed an answer to the complaint. Certified letters sent to the defendant advising him
of the trial date were returned unclaimed. The defendant did not appear for trial and the plaintiff
obtained a judgment against him. Id. at 92-93. The Pennsylvania court declined to recognize the
judgment on the ground that the defendant had not received proper notice of the trial date and
thus was denied an opportunity to defend the action. Id. at 94-95.
In Gondre v Silberstein, 744 F Supp 429 (ED NY, 1990), the defendant was the subject
of consolidated criminal and civil cases in France. The French court held the defendant in
default and entered criminal and civil judgments against him. Id. at 430. The defendant's
subsequent "opposition" to the default judgment was declared void and a "reiterated judgment"
was issued against him. Id. at 431. The plaintiff, the trustee of the company awarded a civil
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judgment for damages, then sought recognition of the judgment. The defendant sought to avoid
recognition of the judgment under the equivalent of MCL 691.1154(2)(a). Id. at 430-431. The
court agreed that the defendant never received notice of the proceeding that resulted in the entry
of the default judgment, id. at 431-432, 435, and ruled that the reiterated judgment might be
denied recognition as well if the defendant had not been given notice of the hearing on his
"opposition" to the default judgment that resulted in entry of the reiterated judgment. Id. at 433434.
In Salisbury Plumbing & Heating Co v Carpenter, 131 Ill App 3d 829; 476 NE2d 15
(1985), the defendants, the Carpenters, hired Salisbury to install a fire sprinkler system, and
Salisbury contracted with McGilvray to provide the system. After it was installed, the
Carpenters refused to pay. Id. at 16. Salisbury commenced suit against the Carpenters in
Illinois, and McGilvray commenced a separate suit against Salisbury in Florida. The Carpenters
counterclaimed against Salisbury in Illinois, and Salisbury filed a third-party complaint against
McGilvray in Illinois. Id. The Illinois trial court ordered the Florida proceedings stayed. The
stay was lifted by the Illinois appellate court, and the Florida case proceeded to trial on the same
day the stay was lifted. Salisbury was notified that the stay was lifted on the day of trial, but was
unable to arrive in Florida in time to participate in the Florida case. Id. at 17-18. McGilvray
then filed a counterclaim, based on the Florida judgment, in Illinois against Salisbury's thirdparty complaint. The Illinois appellate court, applying the Illinois version of the UFMJRA,
deemed the notice exception inapplicable because Salisbury had been aware of the pending
Florida proceedings. Id. at 18.
Although this implies that "notice" merely refers to the proceedings as a whole, the
Illinois court deemed it significant that Salisbury had been participating in the Florida
proceedings, had retained Florida counsel, and participated in Florida pretrial proceedings; but
most significantly, Salisbury had only failed to receive notice of the Illinois order. The court
explained that "the notice mentioned in the statute refers to the notice required by the foreign
jurisdiction which rendered the judgment, not notice of a ruling by an Illinois appellate court on
a motion." Id. Although not explicitly stated, it is reasonably inferable from the opinion that the
Florida trial date had been established before the stay was issued. Therefore, Salisbury had
notice of the Florida proceedings that resulted in the "foreign" order that McGilvray sought to
enforce. Therefore, it was notice of the trial date from the foreign court that was the determining
factor; the court deemed it irrelevant that Salisbury was unaware that the stay was lifted until the
day trial began. This supports defendant's position that it is specific pending actions in the case
of which the defendant must have notice.3
3
Plaintiff cites three other cases in support of his position: Remington Investments, Inc v
Obenauf, 1 SW3d 666 (Tenn App, 1999); Bank of Montreal v Kough, 430 F Supp 1243 (ND Cal,
1977), aff'd 612 F2d 467 (CA 9, 1980); and Julen v Larson, 25 Cal App 3d 325; 101 Cal Rptr
796 (1972). All three cases are materially distinguishable: the defendants in those cases had
never been properly served with process, so the relevant courts never obtained personal
(continued…)
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Moreover, such a result is consistent with the plain language of the statute. In general,
defendants are made aware of the pendency of suits, and courts acquire personal jurisdiction
over those defendants, by service of process. If the defendant is never served with process, the
judgment is not conclusive, MCL 691.1154(1)(b), and it cannot be recognized. MCL 691.1152.
Therefore, if notice of the pending litigation alone was the sole necessity, the exception in MCL
691.1154(2)(a) would be superfluous. Courts "should avoid a construction that would render
any part of the statute surplusage or nugatory." Wickens v Oakwood Healthcare Sys, 465 Mich
53, 60; 631 NW2d 686 (2001). The statute uses the plural word "proceedings" instead of
"proceeding," but we do not deem this relevant to whether the pending case or a particular action
within a case was intended: our Legislature has specifically instructed that singular and plural
words may indicate each other. MCL 8.3b.
In conclusion, because defendant did not have notice of the summary disposition motion
in Canada that resulted in the issuance of the judgment against her, the trial court was permitted
to decline to recognize it under MCL 691.1154(2)(a).
Affirmed.
/s/ Alton T. Davis
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
(…continued)
jurisdiction over the defendants. Discretionary nonrecognition for lack of notice under the
equivalents of MCL 691.1154(1)(b) was therefore not at issue.
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