Ahmad, Zavitsanos & Anaipakos, P.C. v. Chadwick Dawson (2012)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (# 129)

FACTS

This is an action to enforce a default judgment rendered in the state of Texas.   On December 9, 2010, the plaintiff, Ahmad, Zavitsanos & Anaipakos, P.C., a Texas law firm, filed a six-count ¹ complaint against the defendants, Chadwick Dawson and Mike Criscio.   In count one, the plaintiff alleges that on September 2009, the plaintiff sued Dawson, a Connecticut resident, in the District Court of Harris County, Texas, seeking to collect fees for “professional services” that it had provided to him pursuant to a contract.   The plaintiff further alleges that the Texas court rendered a default judgment in the amount of $49,897.52 after Dawson failed to appear in the action.   In count two, the plaintiff alleges essentially the same facts in regard to Criscio.

The defendants filed an answer on February 18, 2011, admitting they are Connecticut residents and the plaintiff is a Texas corporation ² but leaving the remaining allegations to the plaintiff's proof or denying them entirely.   On June 7, 2011, the court, Woods, J., permitted the defendants to raise two special defenses asserting, first, that the default judgment rendered in Texas “is void per lack of personal jurisdiction” and, second, that the plaintiff's enforcement action is “barred” by the due process clause of the fourteenth amendment to the United States constitution “because the Texas court ․ lacked personal jurisdiction ․ because the Texas court failed to make an explicit finding that [it] had personal jurisdiction.”

The plaintiff initially filed a motion for summary judgment on March 8, 2011, claiming, with respect to counts one and two, that it is entitled to enforcement of the Texas judgments by virtue of the full faith and credit clause of the United States constitution.   On July 21, 2011, the court Woods, J., denied the motion, holding that the plaintiff failed to demonstrate that the Texas court properly exercised jurisdiction over the defendants in accordance with Texas law.   The court determined that although the plaintiff submitted certified copies of the judgments entered against the defendants as well as affidavits attesting to service of process, the plaintiff did not submit the underlying petition from the Texas action, without which the court could not “conclude that the jurisdictional allegations in the petition were sufficient under the United States constitution, as required by Texas law, for the defendants to answer.”

Thereafter, on September 20, 2011, the plaintiff filed the present motion for summary judgment.   Relying on the same ground asserted in the original motion, the plaintiff now moves for summary judgment as to count one only, that is, as to its claim against Dawson.   In support of the motion, the plaintiff filed a memorandum of law, exhibits from the original motion and, in response to the court's July 21, 2011 decision, a certified copy of the plaintiff's petition from the Texas action.   On November 1, 2011, Dawson filed an opposing memorandum, and the parties argued the matter at short calendar on November 7, 2011.

DISCUSSION

“[M]otion[s] for summary judgment [are] designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”   Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 26, 930 A.2d 682 (2007).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

The plaintiff urges the court to grant summary judgment because the full faith and credit clause of the United States constitution permits a judgment creditor to enforce in this state a judgment obtained in another state.   The plaintiff claims that Connecticut courts have enforced foreign default judgments “where there were no grounds for questioning the foreign court's jurisdiction” and, moreover, Dawson's defenses fail because the evidence establishes the absence of any genuine issue of material fact regarding whether the Texas court properly exercised personal jurisdiction.   For the court's consideration, the plaintiff submits certified copies of (1) the plaintiff's petition from the original Texas action;  (2) the Texas court's order permitting substitute service upon Dawson;  (3) affidavits of service and (4) the Texas court's order granting a default judgment against Dawson.

Dawson responds that the plaintiff's submission of the Texas petition still does not allow the plaintiff to carry its summary judgment burden.   Dawson relies on the memorandum submitted in opposition to the plaintiff's first motion for summary judgment, in which the defendants asserted that (1) Connecticut does not enforce foreign judgments “where there exists a fundamental dispute about the claim and the claim has not been tried on the merits”;  (2) the Texas court failed to make an explicit finding of personal jurisdiction;  (3) the defendants were not served with process in accordance with Texas law;  and (4) enforcement of the default judgment would encroach upon the due process protections afforded to the defendants under the fourteenth amendment to the United States constitution “because the plaintiff failed to establish personal jurisdiction because no trial on the merits was conducted and the defendants have a valid defense and desire to be heard on the merits of this claim.”

To be clear, the plaintiff's action is predicated solely on the constitutional precept of full faith and credit and not on the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52–604 et seq.³  Although the act “provides a simplified procedure to enforce foreign judgments not obtained by default ․ General Statutes § 52–607 ⁴ provides that, notwithstanding the provisions of that act, ‘[t]he right of a judgment creditor to proceed by an action on the judgment ․ remains unimpaired.’  “ Maltas v. Maltas, 298 Conn. 354, 357 n.3, 2 A.3d 902 (2010).   Thus, “ § 52–607 authorizes a foreign judgment creditor to seek the enforcement of a judgment in this state even if that judgment was entered by default in the foreign state.”  Regents of the University of California v. Gold Marketing, LLC, 92 Conn.App. 378, 379, 885 A.2d 201 (2005).

The full faith and credit clause of the United States constitution provides that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.”   U.S. Const., art.   IV, § 1. “The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.”  Milwaukee Country v. M.E. White Co., 296 U.S. 268, 276–77, 56 S.Ct. 229, 80 L.Ed. 220 (1935).  “As a matter of federal law, the full faith and credit clause requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment would give it.”  Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 56, 570 A.2d 687 (1990).

“Only in a select few situations may courts set aside their obligation to afford full faith and credit to final judgments of foreign courts.”   Business Alliance Capital Corp. v. Fuselier, 88 Conn.App. 731, 736, 871 A.2d 1051 (2005).   In particular, our Supreme Court has recognized “the proposition that lack of jurisdiction renders a foreign judgment void ․ A party can therefore defend against the enforcement of a foreign judgment on the ground that the court that rendered the judgment lacked personal jurisdiction, unless the jurisdictional issue was fully litigated before the rendering court or the defending party waived the right to litigate the issue.”  (Citations omitted.)  Packer Plastics, Inc. v. Laundon, supra, 214 Conn. 56;  see Seaboard Surety Co. v. Waterbury, 38 Conn.Sup. 468, 472, 451 A.2d 291 (1982) (action preserved by § 52–607 “allows the debtor to attack collaterally the foreign judgment by establishing facts that would render the foreign judgment void”).

“[T]he party attacking the [foreign] judgment bears the burden of proof regardless of whether the judgment at issue was rendered after a full trial on the merits or after an ex parte proceeding.”  Packer Plastics, Inc. v. Laundon, supra, 214 Conn. 57.   Nevertheless, in an action to enforce a foreign judgment where lack of personal jurisdiction has been raised in a special defense, there can be no presumption, at the summary judgment stage, that the judgment was jurisdictionally proper.  “Although the burden of setting aside [a foreign judgment] rests upon the party against whom it is sought to be enforced ․ where the personal jurisdiction issue is resolved on summary judgment, it is the moving party's burden to establish that there is no genuine issue of material fact, and an entitlement to prevail as a matter of law ․” (Internal quotation marks omitted.)  Maltas v. Maltas, supra, 298 Conn. 370.   Accordingly, in order to prevail in the present motion, the plaintiff here must produce evidence eliminating any genuine issue of material fact in regard to the validity of the Texas court's assertion of jurisdiction over Dawson.   See id., 367 (holding that party moving for summary judgment to enforce foreign judgment where personal jurisdiction was at issue must satisfy burden of proving that foreign court “properly had exercised personal jurisdiction”).

The plaintiff's uncontroverted evidence sets forth the essential facts of the Texas lawsuit.   The petition filed with the Texas court alleged that:  (1) the plaintiff is a Texas corporation and the defendants are Connecticut residents;  (2) the parties entered into a contract by which the defendants retained the plaintiff to litigate a matter in federal court in Texas;  (3) the defendants paid the plaintiff a $20,000 retainer pursuant to the contract;  (4) over roughly ninety days, the plaintiff filed a thirty-page brief with numerous affidavits, attended a hearing for injunctive relief and spent “dozens of hours” dealing with an escrow agreement;  (5) as a result of the plaintiff's work, the federal court “transferred” the case to the state of Nevada;  (6) in May 2009, the plaintiff forwarded to the defendants a fee statement describing the balance due but which was later reduced when the defendants “contacted [the plaintiff] in regards to the amount of the bill”;  and (7) the defendants failed to make any payments to the invoices sent to them in May, June and July of 2009.   The plaintiff also alleged that “all or a substantial part of the events or omissions giving right to [the plaintiff's] claims” occurred in Texas and that the parties expressly agreed in the contract “to submit to [the] exclusive jurisdiction and venue in Houston, Texas, if any judicial proceedings are necessary regarding the scope of the representation ․”

In an order signed on February 8, 2010, the Texas court authorized the plaintiff to effect “substitute” service on Dawson by leaving a copy of the citation and petition with “anyone over sixteen years of age” at Dawson's home in Hamden, Connecticut.   The order expressly referenced the plaintiff's motion for substitute service and the affidavit of Daniel Russbach, who attested that when he attempted to serve Dawson there on December 23, 2009, Dawson did not come to the door.   Instead, according to Russbach, an unidentified male answered and informed him that Dawson was not home.   Russbach states that during this time he could see Dawson, who he was able to identify from a picture, “waving to say he is not in.”   Russbach subsequently gave copies of the process to a woman who identified herself as Dawson's wife.

After the order for substitute service was entered, Russbach attested in a second affidavit that on March 8, 2010, he served copies of the process by delivering them to Dawson's twenty-eight-year-old brother, Jermaine Dawson, at the same Hamden residence.   Thereafter, in an order signed on April 19, 2010, the Texas court granted a default judgment against Dawson, finding that Dawson was properly served in accordance with the Texas Rules of Civil Procedure, that he “has wholly failed to answer or otherwise appear” and that “this Court has jurisdiction over the subject matter, the parties, and that the record indicates that this case is ripe for judgment by default ․” Although the Texas court, referencing the record, explicitly concluded that it had jurisdiction over the parties, it did not provide its analysis in arriving at that determination.

“The question of whether another state's court properly exercised personal jurisdiction is determined with reference to the law of that state.”  Maltas v. Maltas, supra, 298 Conn. 367;  see also J. Corda Construction, Inc. v. Zeleski Corp., 98 Conn.App. 518, 524, 911 A.2d 309 (2006);  Business Alliance Capital Corp. v. Fuselier, supra, 88 Conn.App. 737;  Tri–State Tank Corp. v. Higganum Heating, Inc., 45 Conn.App. 798, 800, 699 A.2d 201 (1997).   In Texas, “[a] court may assert personal jurisdiction over a nonresident defendant only if the requirements of both the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and the Texas long-arm statute are satisfied.”  CSR Ltd. v. Link, 925 S.W.2d 591, 594 (Tex.1996).

The Texas long-arm statute is codified in §§ 17.041 to 17.045 of the Texas Civil Practice & Remedies Code. Sections 17.043 and 17.044 authorize various forms of service upon nonresidents who are within the purview of the statute but “Rule 108 [of the Texas Rules of Civil Procedure] is a valid procedural alternative to service under the long-arm statute.”  Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 495 (Tex.1988).  Rule 108 ⁵ permits service of process in conformity with Rule 106,⁶ which, in turn, allows a court to authorize service by leaving a copy of the process with anyone over the age of sixteen at the defendant's usual place of abode, upon a motion supported by an affidavit identifying such a location and stating facts showing that in-person service had been attempted there.   Here, the evidence shows that the Texas court ordered service under Rule 106 after considering the plaintiff's motion and Russbach's affidavit attesting that Dawson had been seen at his residence during the initial attempt at personal service but had refused to answer the door.   Because service was ultimately effected by delivering the process to Dawson's adult brother at the same location, the record from the Texas action demonstrates that the service of process in that case was proper.

There can also be no doubt that, under the facts alleged in the petition,⁷ jurisdiction over Dawson was sanctioned by the long-arm statute.   Section 17.042 ⁸ permits jurisdiction over a nonresident who, inter alia, “does business in this state” by entering into a contract “with a Texas resident and either party is to perform the contract in whole or in part in this state ․” It is clear that Dawson's alleged hiring of the plaintiff to represent him in a federal proceeding in Texas constitutes “doing business” within the meaning of the statute.   Nevertheless, for the Texas court to have properly asserted jurisdiction over Dawson, the plaintiff must also show that its allegations comported with constitutional due process standards.   See Paramount Pipe & Supply Co., Inc. v. Muhr, supra, 749 S.W.2d 496 (holding “[s]o long as the allegations confronting [the nonresident defendant] were sufficient to satisfy due process requirements, the trial court had jurisdiction to render judgment by default”);  Biotrace International, Inc. v. Wilwerding, 937 S.W.2d 146, 147 (Tex.App.1997) (holding trial court lacked personal jurisdiction to grant default judgment against nonresident defendants because allegations in petition failed to “pass constitutional muster”);  Calvert v. Calvert, 801 S.W.2d 217, 220 (Tex.App.1990) (setting aside default judgment rendered against nonresident defendant where judgment “was rendered on a petition that is deficient in pleading [constitutional] jurisdictional facts necessary for exercise of personal jurisdiction”).   The reason for this is, although “[t]he Texas long-arm statute authorizes personal jurisdiction over a nonresident defendant who ‘does business' in Texas ․ the statute's broad, doing-business language reaches only as far as [the] federal due-process criteria permit ․” (Citation omitted.)  IRA Resources, Inc. v. Griego, 221 S.W.3d 592, 596 (Tex.2007).   Stated differently, “[any] judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.”  World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

“The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’  “ Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).   The archetypal due process standard pronounced in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), is that personal jurisdiction over a nonresident defendant is constitutional when he or she has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’  “ “The concept of minimum contacts ․ can be seen to perform two related, but distinguishable functions.   It protects the defendant against the burdens of litigating in a distant or inconvenient forum.   And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.”  World–Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. 291–92.

“In judging minimum contacts, a court properly focuses on the relationship among the defendant, the forum, and the litigation.”  (Internal quotation marks omitted.)  Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984).  “So long as it creates a ‘substantial connection’ with the forum, even a single act can support jurisdiction.”  Burger King Corp. v. Rudzewicz, supra, 471 U.S. 475 n.18. “[T]he ‘minimum contacts' test of International Shoe is not susceptible of mechanical application;  rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances' are present.”  Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 56 L.Ed.2d 132, reh. denied, 438 U.S. 908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978).   Thus, “an individual's contract with an out-of-state party alone [cannot] automatically establish sufficient minimum contacts in the other party's home forum” (emphasis in original);  Burger King Corp. v. Rudzewicz, supra, 478;  but minimum contacts may be shown through such a contract by evaluating the “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing ․” Id., 479;  see McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) (“[i]t is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State”).

The United States Supreme Court has emphasized that “minimum contacts must have a basis in some act by which the defendant purposefully avails itself of the privileges of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”  (Emphasis added;  internal quotation marks omitted.)  Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987).   The purposeful availment doctrine seeks to ensure that the “critical” component of a defendant's contacts is present, namely, that “the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”  World–Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. 297;  see Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 790 (Tex.2005) (“minimum-contacts analysis focuses solely on the actions and reasonable expectations of the defendant”).   Under Texas' restatement of federal constitutional jurisprudence, “purposeful availment ․ is the touchstone of jurisdictional due process ․ [and] has at least three aspects ․ First, only the defendant's forum-state contacts matter, not anyone else's ․ Second, the contacts must be purposeful, not merely random, isolated, or fortuitous ․ Third, a nonresident defendant must seek some benefit, advantage, or profit by ‘availing’ itself of the jurisdiction, thus impliedly consenting to its laws.” ⁹  (Citations omitted;  internal quotation marks omitted.)  IRA Resources, Inc. v. Griego, supra, 221 S.W.3d 596.

Under the facts alleged in the petition, there was no “unilateral activity” of another party that would have inappropriately conferred jurisdiction over Dawson.   See, e.g., Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (foreign corporation's acceptance of checks drawn on a Texas bank did not constitute contact with Texas where there was no indication that checks were specially requested to be drawn from there);  World–Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. 298 (automobile purchaser's unilateral act of driving vehicle from New York to Oklahoma did not subject New York-based distributor and retailer of vehicle to Oklahoma jurisdiction).   Rather, the facts solely involved Dawson's own conduct—his hiring of the plaintiff to pursue litigation on his behalf—and acts performed by the plaintiff out of a direct, express contractual obligation to Dawson.

Moreover, Dawson's alleged contact with Texas was purposeful and not random, isolated or fortuitous.   See, e.g., Gordon & Doner, P.A. v. Joros, 287 S.W.3d 325, 333 (Tex.App.2009) (Florida law firm's collaboration with Texas law firm to file suit in New York did not constitute purposeful contact with Texas where Texas firm was chosen solely on basis of its experience in pharmaceutical litigation and not for any geographical significance);  Turner Schilling, LLP v. Gaunce Management, Inc., 247 S.W.3d 447, 456–57 (Tex.App.2008) (Kentucky accounting firm's contacts with Texas were merely fortuitous and not purposeful where it sought to contract with supplier close to Kentucky “and did not realize that [supplier] even had offices in Texas until well into the contract negotiations”);  but see Mississippi Interstate Express, Inc. v. Transpo, Inc., 681 F.2d 1003, 1008 (5th Cir.1982) (California freight broker's contact with Mississippi was purposeful where it entered into contract with Mississippi trucking company and reasonably foresaw that trucking company would perform material part of its obligations in that state).   In the Texas action, the plaintiff alleged that Dawson hired, paid and maintained communication with the plaintiff, a local Texas law firm, to handle litigation that could only be conducted in Texas.   Because the entire objective of the contract was to resolve a legal matter in Texas, there was no other jurisdiction to which Dawson could have directed his activities.

Finally, the allegations establish that Dawson sought to procure benefits in Texas and thereby invoked the protection of its laws.   Dawson allegedly retained the services of a local Texas law firm, taking advantage of its relative proximity to the federal court as well as its presumed familiarity with the local rules of practice, in order to remove a pending legal matter from Texas to a different jurisdiction.   In so doing, Dawson was protected by Texas law from negligence, unfair practices and other misconduct in the handling of his case.  “[T]he purposeful-availment concept is based on implied consent—a nonresident may structure its transactions so as either to invoke the benefits and protections of Texas laws, thus impliedly consenting to suit there, or to purposefully avoid [Texas] by structuring its transactions so as neither to profit from the forum's laws nor be subject to its jurisdiction.”   (Internal quotation marks omitted.)  GJP, Inc. v. Ghosh, 251 S.W.3d 854, 880 (Tex.App.2008).   In addition to providing his implied consent, Dawson also expressly consented to suit in Texas by agreeing in a forum selection provision to “submit to exclusive jurisdiction and venue in Houston, Texas, if any judicial proceedings are necessary regarding the scope of the representation ․” See Michiana Easy Livin' Country, Inc. v. Holten, supra, 168 S.W.3d 792 (“a forum-selection clause operates as consent to jurisdiction in one forum”).   Thus, under the allegations of the petition, Dawson structured his transactions in such a way as to deliberately avail himself of, rather than avoid, the jurisdiction of Texas.   Accordingly, the court concludes that the contract with the plaintiff formed a substantial connection with Texas and Dawson should have reasonably anticipated being haled into court there.   While there were no allegations as to whether Dawson was ever physically in Texas, the United States Supreme Court has admonished that “[j]urisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State ․ [I]t is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted.   So long as a commercial actor's efforts are ‘purposefully directed’ toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.”  (Emphasis in original.)  Burger King Corp. v. Rudzewicz, supra, 471 U.S. 476.   Based on the above, the court concludes that “minimum contacts” between Dawson and the state of Texas had been alleged in the petition.

“If the nonresident defendant has minimum contacts with the forum state, we must then determine whether exercise of personal jurisdiction over the nonresident offends traditional notions of fair play and substantial justice.   See [Burger King Corp. v. Rudzewicz, supra, 471 U.S. 476].   In making this determination, we consider (1) the burden on the defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interests of the several states in furthering fundamental substantive social policies.”  Horizon Shipbuilding, Inc. v. Blyn II Holding, LLC, 324 S.W.3d 840, 851 (Tex.App.2010).  “Only in rare cases, however, will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.”  Guardian Royal Exchange Assurance, Ltd. v. English China Clays, PLC, 815 S.W.2d 223, 231 (Tex.1991).

Any exercise of jurisdiction over a nonresident will involve some inconveniences.   There was no indication in the petition, however, that the inconvenience to Dawson would have been unreasonable, since Dawson had been willing and able to hire the plaintiff to vindicate his interests in a different proceeding in Texas.   On the other hand, it would have been highly unreasonable to require the plaintiff to seek relief in Connecticut.   The plaintiff is based in Texas, the contract called for the plaintiff to perform the work in Texas, the parties agreed to resolve their disputes in Texas and Dawson invoked the protections of Texas law.   Forcing the plaintiff to redress its injury in a distant forum would not only be contrary to the expectations of the parties but would also upset the “degree of predictability” to the legal system that allows parties to “structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.”  World–Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. 297.   In addition, such a result would, by making local industries justifiably wary of transacting business with foreign residents, impair fundamental social and economic goals involving the facilitation of commerce among the several states.   Here, because the petition alleged that Dawson purposefully availed himself of the privilege of pursuing activities in Texas and, in so doing, injured a Texas resident, there was a foundation for the Texas court to conclude that it had the greatest interest in resolving the controversy and, based on all of the foregoing, that it was the proper forum to do so, as well.   Traditional notions of fair play and substantial justice, therefore, were not offended by requiring Dawson to answer in the Texas lawsuit.

Therefore, this court concludes, that the plaintiff has satisfied its summary judgment burden of demonstrating the absence of any genuine issue of material fact as to whether the Texas court properly exercised personal jurisdiction in granting a default judgment against Dawson.   In making this determination, the court underscores that the evidence produced by the plaintiff here is distinguishable from the evidence produced in Maltas v. Maltas, supra, 298 Conn. 354.   In that case, the plaintiff brought an action to domesticate in Connecticut a default judgment rendered in Alaska, id., 355, and the defendant, a Connecticut resident, asserted in a special defense that the Alaska court lacked jurisdiction over him.  Id., 357–58.   After the plaintiff submitted evidence that the defendant had been served in the Alaska action and the Alaska court had rendered a default judgment, the trial court granted summary judgment for the plaintiff.  Id., 357–59.   Our Supreme Court reversed the trial court's decision because the plaintiff's evidence was devoid of any basis for the Alaska court's exercise of personal jurisdiction.  Id., 369.   Noting specifically that (1) the default judgment did not indicate whether the Alaska court had made an explicit finding of personal jurisdiction;  (2) the Alaska complaint lacked jurisdictional facts;  (3) there was no indication that the plaintiff provided any affidavits or other evidence to the Alaska court in support of his allegations;  and (4) the plaintiff's complaint and affidavits submitted in the Connecticut action made no reference to the jurisdictional basis for the Alaska action or to any factual detail on which a court could make a jurisdictional finding, see id., 356–58, our Supreme Court held that the plaintiff did not meet his summary judgment burden because he failed to “[make] out a prima facie case that the Alaska court properly had exercised jurisdiction.”  Id., 367.   In the present case, however, the plaintiff's evidence demonstrates that the Texas court explicitly and properly made a finding of personal jurisdiction based upon the record before it.   That record included proof of adequate service as well as a detailed petition that alleged jurisdictional facts comporting with state long-arm and federal due process requirements.   Although the petition clearly advanced and provided notice of a specific theory of personal jurisdiction,¹⁰ Dawson nevertheless elected not to appear in Texas to contest it, thereby allowing the Texas court to treat those facts as admitted under Texas law.   See Gourmet, Inc. v. Hurley, supra, 552 S.W.2d 513.   Therefore, the plaintiff's submission in Connecticut of such a record—upon which a foreign court was able to properly exercise personal jurisdiction—suffices to meet the plaintiff's summary judgment burden of production.

CONCLUSION

Because Dawson does not submit any evidence in the present proceeding to dispute the plaintiff's proffer or to collaterally attack the Texas court's judgment, the plaintiff is entitled to judgment as a matter of law in accordance with the full faith and credit clause of the United States constitution.   The motion for summary judgment is therefore granted.

Wilson, J.

FOOTNOTES

FN1. Counts three through six have subsequently been withdrawn..  FN1. Counts three through six have subsequently been withdrawn.

FN2. These admissions are a result of the defendant's failure to respond to the corresponding allegations.  “If an allegation is not answered, it is deemed admitted.”   W. Horton & K. Knox, 1 Connecticut Practice Series:  Practice Book Annotated (2011–2012 Ed.) § 10–48, author's comments, p. 551;  see also Worden v. Francis, 153 Conn. 578, 584, 219 A.2d 442 (1996);  Bank of America, FSB v. Franco, 57 Conn.App. 688, 692, 751 A.2d 394 (2000)..  FN2. These admissions are a result of the defendant's failure to respond to the corresponding allegations.  “If an allegation is not answered, it is deemed admitted.”   W. Horton & K. Knox, 1 Connecticut Practice Series:  Practice Book Annotated (2011–2012 Ed.) § 10–48, author's comments, p. 551;  see also Worden v. Francis, 153 Conn. 578, 584, 219 A.2d 442 (1996);  Bank of America, FSB v. Franco, 57 Conn.App. 688, 692, 751 A.2d 394 (2000).

FN3. Under the act, foreign judgments not obtained by default shall be treated in the same manner as a judgment of a court of this state if the judgment creditor complies with certain filing and mailing requirements.   See General Statutes §§ 52–604, 52–605..  FN3. Under the act, foreign judgments not obtained by default shall be treated in the same manner as a judgment of a court of this state if the judgment creditor complies with certain filing and mailing requirements.   See General Statutes §§ 52–604, 52–605.

FN4. Section 52–607 provides:  “The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52–604 to 52–609, inclusive, remains unimpaired.”.  FN4. Section 52–607 provides:  “The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of complaint instead of proceeding under sections 52–604 to 52–609, inclusive, remains unimpaired.”

FN5. Rule 108 of the Texas Rules of Civil Procedure provides in relevant part:  “Where the defendant is absent from the State, or is a nonresident of the State, the form of notice to such defendant of the institution of the suit shall be the same as prescribed for citation to a resident defendant;  and such notice may be served by any disinterested person competent to make oath of the fact in the same manner as provided in Rule 106 hereof.”.  FN5. Rule 108 of the Texas Rules of Civil Procedure provides in relevant part:  “Where the defendant is absent from the State, or is a nonresident of the State, the form of notice to such defendant of the institution of the suit shall be the same as prescribed for citation to a resident defendant;  and such notice may be served by any disinterested person competent to make oath of the fact in the same manner as provided in Rule 106 hereof.”

FN6. Rule 106(a) provides:  “Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by (1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or (2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.”Rule 106(b) provides:  “Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.”.  FN6. Rule 106(a) provides:  “Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by (1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or (2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.”Rule 106(b) provides:  “Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.”

FN7. The court must look to the facts alleged in the Texas action because although “[o]rdinarily pleadings are not evidence ․ no evidence is necessary to support a default judgment because [the] defendant's failure to answer is taken as admitting the allegations of the petition ․ Thus, if such allegations are sufficient and uncontested, they establish jurisdiction, but if they are not sufficient, no jurisdiction is shown.”   (Citations omitted.)  Gourmet, Inc. v. Hurley, 552 S.W.2d 509, 513 (Tex.Civ.App.1977)..  FN7. The court must look to the facts alleged in the Texas action because although “[o]rdinarily pleadings are not evidence ․ no evidence is necessary to support a default judgment because [the] defendant's failure to answer is taken as admitting the allegations of the petition ․ Thus, if such allegations are sufficient and uncontested, they establish jurisdiction, but if they are not sufficient, no jurisdiction is shown.”   (Citations omitted.)  Gourmet, Inc. v. Hurley, 552 S.W.2d 509, 513 (Tex.Civ.App.1977).

FN8. Section 17.042 provides:  “In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:  (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;  (2) commits a tort in whole or in part in this state;  or (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.”.  FN8. Section 17.042 provides:  “In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:  (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;  (2) commits a tort in whole or in part in this state;  or (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.”

FN9. The court also recognizes that “[a] defendant's contacts with a forum can give rise to either general or specific jurisdiction.   General jurisdiction is present when a defendant's contacts are continuous and systematic, permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state ․ In contrast, specific jurisdiction is established if the defendant's alleged liability arises from or is related to an activity conducted within the forum.”  (Citation omitted.)  CSR Ltd. v. Link, supra, 925 S.W.2d 595.   Because the plaintiff did not allege any continuous and systematic contacts in Texas on the part of the defendants, and because the Texas lawsuit arose from the defendants' alleged breach of a contract representing a Texas activity, the only type of jurisdiction that the Texas court could have asserted was specific jurisdiction..  FN9. The court also recognizes that “[a] defendant's contacts with a forum can give rise to either general or specific jurisdiction.   General jurisdiction is present when a defendant's contacts are continuous and systematic, permitting the forum to exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state ․ In contrast, specific jurisdiction is established if the defendant's alleged liability arises from or is related to an activity conducted within the forum.”  (Citation omitted.)  CSR Ltd. v. Link, supra, 925 S.W.2d 595.   Because the plaintiff did not allege any continuous and systematic contacts in Texas on the part of the defendants, and because the Texas lawsuit arose from the defendants' alleged breach of a contract representing a Texas activity, the only type of jurisdiction that the Texas court could have asserted was specific jurisdiction.

FN10. Our Supreme Court expressed concern in Maltas that “in the absence of any indication from the plaintiff as to the particular theory of personal jurisdiction he had advanced in Alaska it could have been difficult, if not impossible, for the defendant to produce evidence refuting it” in the summary judgment proceeding in Connecticut.  Maltas v. Maltas, supra, 298 Conn. 369–70.   Here, because the plaintiff's evidence includes a petition that plainly advanced such a theory, the defendant is not constrained in his ability to produce evidence refuting jurisdiction..  FN10. Our Supreme Court expressed concern in Maltas that “in the absence of any indication from the plaintiff as to the particular theory of personal jurisdiction he had advanced in Alaska it could have been difficult, if not impossible, for the defendant to produce evidence refuting it” in the summary judgment proceeding in Connecticut.  Maltas v. Maltas, supra, 298 Conn. 369–70.   Here, because the plaintiff's evidence includes a petition that plainly advanced such a theory, the defendant is not constrained in his ability to produce evidence refuting jurisdiction.

Wilson, Robin L., J.