JULES JURGENSEN/RHAPSODY, INC v. FARASH & ROBBINS, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5551-05T15551-05T1

JULES JURGENSEN/RHAPSODY, INC.,

Plaintiff-Respondent,

v.

FARASH & ROBBINS, INC.,

Defendant-Appellant.

________________________________________________________________

 

Argued February 27, 2008 - Decided

Before Judges Wefing, Parker and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DJ-156603-03.

Brian C. Matthews argued the cause for appellant (Soriano, Henkel, Biehl & Matthews, attorneys; Mr. Matthews, of counsel and on the brief).

Melvin McDowell argued the cause for respondent (Rothberg & Federman, attorneys; Mr. McDowell and Kenneth D. Federman, on the brief).

PER CURIAM

Defendant Farash & Robbins, Inc. (Farash) appeals from an order entered on May 26, 2006 granting plaintiff's motion to vacate the judgment and temporary restraints entered on August 20, 2003 and entering judgment in favor of plaintiff in the amount of $22,293.32.

This matter initiated with a complaint filed in Pennsylvania on March 13, 2003. On May 2, 2003, plaintiff filed a notice of default. On May 20, plaintiff filed a "Praecipe for Default Judgment." The Pennsylvania judgment was docketed on June 24, 2003.

On October 7, 2003, defendant filed motions to strike (vacate) the default judgment. On June 22, 2004, the Pennsylvania court denied the motion to "open the default" but granted defendant's motion to strike and allowed defendant to answer. A bench trial followed, after which the court entered judgment in favor of plaintiff and against defendant in the amount of $22,293.32. On August 20, 2003, the New Jersey court entered temporary restraints, staying any levy against defendant "pending full hearing on the issues of due process, service and personal jurisdiction."

On April 21, 2006, plaintiff moved in New Jersey to amend or vacate the temporary restraints and enter the judgment. Defendant responded to the motion and on May 26, 2006, after oral argument, the New Jersey court entered judgment in favor of plaintiff and against defendant in the amount of $22,293.32.

Defendant appealed and on January 3, 2007, we temporarily remanded the matter to the trial court to determine whether Pennsylvania had jurisdiction over defendant. After a hearing, the trial court determined that Pennsylvania did have jurisdiction over defendant and properly entered the judgment against it.

This entire matter revolves around plaintiff's sale of wrist watches to defendant, but the merits of the transaction are not at issue here. We are concerned only with whether the judgment was properly enforced in New Jersey under the Foreign Judgments Act, N.J.S.A. 2A:82-4.1 to -4.7. In order to enforce a foreign judgment in New Jersey, a party must comply with the statutory requirements.

N.J.S.A. 2A:82-4.1 provides:

The recital in the record of any proceeding upon a foreign judgment, including a judgment in any court out of this State, that the defendant, or person sought to be affected by the judgment was summoned or appeared, shall not prevent or estop the defendant or person affected from proving that he was not summoned or did not appear.

N.J.S.A. 2A:82-4.2 provides:

In any proceeding upon a foreign judgment, including a judgment of any court out of this State, the plaintiff, or person seeking to enforce the judgment, shall have the burden of proving that the requirements, statutory and otherwise, of the foreign jurisdiction have been met, conferring jurisdiction of the subject matter of the foreign proceeding on the foreign court or tribunal and over the defendant or person sought to be affected by the judgment.

Initially, defendant challenges the jurisdiction of the Pennsylvania court over it. Defendant notes that the Pennsylvania court, in entering the default judgment, also entered an order restraining any levy against the defendant pending a "full hearing on the issues of due process, service, and personal jurisdiction." Defendant maintains that there was never any hearing in Pennsylvania on the issue of jurisdiction. Defendant does not, however, demonstrate that it sought a hearing on jurisdiction in Pennsylvania. Plaintiff argues that defendant waived jurisdiction by virtue of answering the complaint in Pennsylvania "without preliminarily objecting to [jurisdiction] and, in fact, filed a counterclaim against the plaintiff and thereby purposefully availed itself of the protections of Pennsylvania law." We agree with plaintiff. If defendant failed to object to jurisdiction in Pennsylvania, appeared and filed a counterclaim, it has no basis for objecting now to jurisdiction of the Pennsylvania court. Hupp v. Accessory Distribs., 193 N.J. Super. 701, 709 (App. Div. 1984)(holding that "[i]f defendant appears in the original action and participates in the litigation without objection to the court's jurisdiction over him, the defendant may not collaterally attack the judgment in a second state when an action is brought to enforce it as the defendant has consented to the jurisdiction of the first state.").

Defendant next argues that the Pennsylvania court never provided it with an opportunity to contest jurisdiction. While that may be the case, the mere fact that defendant answered the complaint and filed a counterclaim in Pennsylvania waives any jurisdictional issue. Id. Consequently, there is no merit to this argument.

Finally, defendant argues that the New Jersey trial court erred in finding that Pennsylvania had jurisdiction over defendant. Again, there is no merit to this claim based upon defendant's answering and filing a counterclaim in Pennsylvania.

After carefully considering defendant's arguments in light of the applicable law, we are satisfied that they lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-5551-05T1

August 5, 2008