On appeal from the Superior Court of New Jersey, Law Division, Passaic County, DJ-48-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Lihotz.
Appellant, YRC Inc., f/k/a Yellow Transportation (YRC), appeals from an April 16, 2010 order denying its motion for reconsideration and a related February 19, 2010 order denying enforcement of a default judgment entered by the Civil Court Department of the District Court of Johnson County, Kansas, and recorded in the Superior Court of New Jersey against defendant Rainbow Appliance & Electronics, LLC (Rainbow A&E, LLC). Based on our review of the applicable law and the record on appeal, we affirm.
YRC is a shipping company which alleges it provided transportation services to TD Sherman, LLC and "Rainbow Appliances" between July 10, 2008 and October 30, 2008. On March 18, 2009, YRC filed a complaint in the District Court of Johnson County, Kansas, for unpaid invoices based on bills of lading. The complaint named as defendants five entities: TD Sherman, LLC; Rainbow Appliance & Electronics, LLC (Rainbow A&E, LLC); Rainbow Appliance Company, LLC; Rainbow Appliance & Electronics, Inc.; and Rainbow Appliance Company, Inc. The complaint alleged that the registered agent and president, member and/or chief executive officer for each of the defendant entities is Eli Klein and that the principal place of business of each of the entities is at River Road in Clifton, New Jersey. None of the defendant entities appeared or answered the complaint in Kansas and on July 10, 2009, YRC moved in Kansas for judgment by default. On August 7, 2009, the District Court of Johnson County, Kansas, granted YRC's motion and entered judgment by default against all of the defendant entities, jointly and severally for $118,529.10, plus post-judgment interest to be calculated pursuant to the Kansas judgment rate.*fn1
On January 4, 2010, YRC initiated this matter and filed an affidavit in support of an application to record its foreign Kansas judgment in New Jersey against the four remaining defendants. Rainbow A&E, LLC moved to stay the enforcement and to void the default judgment. None of the remaining three Rainbow Appliance entities took action with respect to YRC's effort to enforce the judgment, and none other than Rainbow A&E, LLC, is involved in this appeal.
Following a hearing on February 19, 2010, the motion court accepted Rainbow A&E, LLC's argument that it did not have sufficient minimum contacts with the State of Kansas to satisfy due process standards at the time the judgment was entered by the Kansas court. The motion judge determined Rainbow A&E, LLC proved it was not in existence during the timeframe that services were provided by YRC to TD Sherman and/or the other defendants, as alleged in the YRC Kansas complaint. The court therefore declared the default judgment unenforceable as against Rainbow A&E, LLC and cancelled and discharged the judgment as to that entity for lack of personal jurisdiction and lack of due process. YRC moved for reconsideration and that motion, heard on April 16, 2010, was denied for substantially the same reasons. This timely appeal followed.
Because the parties do not dispute the factual findings of the motion courts, we review the courts' holdings de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). YRC argues that Rainbow A&E, LLC waived its right to challenge personal jurisdiction in Kansas by moving to set aside the default judgment and then later withdrawing its challenge.*fn2 Plaintiff asserts that motion was filed on June 25, 2010, after the entry of the two orders that denied enforcement in New Jersey and that are the subject of this appeal.
We note that the record presented on this appeal is incomplete regarding the post-judgment filings in Kansas as the appellant's appendix only includes (a) the first page of the referenced motion to set aside default judgment; (b) the first page of Rainbow A&E, LLC's reply to [YRC's] opposition to the motion to set aside default judgment; (c) stipulation withdrawing defendant Rainbow A&E, LLC's motion and canceling the hearing; and (d) an order signed by the stipulating attorneys [not signed by a judge] withdrawing the motion and declaring the motion shall be of no force and effect. Those documents are undated except that the stipulation and order signed by the attorneys bear a facsimile stamp date of August 10, 2010.
It is well settled that a party may waive or consent to the exercise of jurisdiction by a foreign state:
If 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. Likewise if a defendant challenges the jurisdiction of the court over him and the court rejects his challenge and finds it has jurisdiction, the issue may not be raised in a second state in an action to enforce the judgment rendered in the first state. [Hupp v. Accessory Distribs., 193 N.J. Super. 701, 709 (App. Div. 1984) (citations omitted).]
Here, YRC has not met its burden of proving Rainbow A&E, LLC waived its right to challenge the exercise of personal jurisdiction over it by the Kansas court. See Knorr v. Smeal, 178 N.J. 169, 177 (2003) ("The party waiving a known right must do so clearly, unequivocally, and decisively."). Contrary to YRC's argument, the record provided by YRC indicates the motion in Kansas was filed on June 25, 2010, well after the February 19, 2010 order in New Jersey declaring the Kansas judgment unenforceable and after the New Jersey court denied YRC's motion for reconsideration on April 16, 2010. In addition, the motion in Kansas was never considered by a court. The motion was withdrawn by consent of counsel for both parties, with the expressed qualification that "[b]ased on this stipulation the Motion . . . shall be deemed withdrawn and of no further force and effect." We therefore reject YRC's argument that Rainbow A&E, LLC waived its right to challenge personal jurisdiction in New Jersey. Rainbow A&E, LLC's challenge had been perfected by the time the motion was filed in Kansas.
Appellant next argues the default judgment by the Kansas court is entitled to full faith and credit in New Jersey. However, "[i]n considering whether to accord full faith and credit to a judgment of another state, a forum state must consider whether the state rendering the judgment had jurisdiction over the defendant." Silverman v. Berkson, 141 N.J. 412, 430 (1995) ...