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05/12/92 TOM BROWN & COMPANY v. MILES E. FRANCIS

May 12, 1992

TOM BROWN & COMPANY, INC., APPELLANT
v.
MILES E. FRANCIS, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge).

Before Ferren, Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge : Appellant contends that the trial Judge erred by granting appellee's motion for summary judgment and thereby enforcing appellee's foreign default judgment against appellant. The default judgment had been obtained in a lawsuit filed in Maine. Appellant claims that the Maine court did not have in personam jurisdiction over it, thus rendering the judgment void and unenforceable. We consider the materials offered in opposition to summary judgment in the light most favorable to appellant. Adickes v. S. H. Kress & Co. , 398 U.S. 144, 157, 26 L. Ed. 2d 142 , 90 S. Ct. 1598 (1970). Even so, we hold that Judge Wolf correctly granted judgment as a matter of law because, on the undisputed facts, the Maine court exercised jurisdiction over appellant in conformity with both constitutional and Maine statutory standards. We therefore affirm. *fn1 See McCoy v. Quadrangle Dev. Corp. , 470 A.2d 1256, 1258 (D.C. 1983).

I.

Appellant Tom Brown & Company, Inc. is an insurance brokerage and bonding agency organized and headquartered in the District of Columbia. Appellee Miles E. Francis is the owner of a construction company located and doing business in Maine. Sometime in June of 1987, in response to a request by Francis, Tom Brown agreed to provide surety bonding for Francis. The surety bonding was required to allow Francis to perform a construction project in Maine for the federal government. Tom Brown had provided a similar service for Francis in 1986. During their 1986 dealings, problems had arisen with the sureties provided. These problems were corrected through several letters and telephone conversations between the parties. For providing the 1986 surety bonds that were eventually accepted by the federal government, Francis paid Tom Brown $42,965.79 in fees. Tom Brown admits to having had one other business contact in Maine besides Francis. *fn2

On the present occasion in 1987, Francis paid Tom Brown $6,996.00 in fees for the agreed-upon surety. However, for reasons that are disputed (and irrelevant to this appeal), Tom Brown proved unable to furnish the bonding. After a series of telephone calls and letters between the parties, Francis asked Tom Brown to return the $6,996.00. Tom Brown returned $2,199.00, the amount it had assertedly retained for services as broker/intermediary while passing on the rest to the parties who were to be the actual sureties. Francis filed suit against Tom Brown in Maine seeking judgment in the amount of $4,797.00, the remainder of the surety fee paid Tom Brown.

Tom Brown received valid personal service of the Maine suit in the District of Columbia. When it failed to file an answer or to appear in the Maine suit, Francis requested a default judgment. Upon receiving notice of the request for default judgment, Tom Brown wrote the Maine court requesting further time in which to appear and file an answer. It did not contest jurisdiction. The Maine court entered an order allowing Tom Brown until March 1, 1989, to file an answer through an attorney. The company retained a Maine attorney and attempted to file an answer on March 10, 1989. The answer generally denied the allegations, but did not contest the Maine court's exercise of personal jurisdiction over Tom Brown. On March 15, five days after filing its answer, Tom Brown moved for permission to file the late answer. The Maine court denied the request and entered a default judgment in favor of Francis, stating: "the Court normally allows a late answer under these circumstances, but the defendant has failed to show any evidence of a meritorious defense and, at best, has shown that he is entitled to indemnification from a third party."

Francis thereafter filed this suit in the District of Columbia Superior Court to enforce the Maine judgment. Tom Brown filed a motion to dismiss, raising for the first time the issue of the Maine court's exercise of in personam jurisdiction. After Judge Cushenberry denied the motion, Tom Brown filed an answer asserting substantive defenses. *fn3 Francis moved for summary judgment, which Judge Wolf granted after a hearing. The Judge found that Tom Brown had been acting as an insurance agent or surety as defined by Maine statutes. He further found that Tom Brown had had sufficient contacts with Maine to allow the Maine court to exercise personal jurisdiction. The trial Judge concluded:

[Tom Brown] delivered contracts of surety insurance in Maine "covering subjects resident, located, or to be performed in" Maine (in this case all three categories). Maine Insurance Code 24-A § 3101. It had done business of the same sort before with and others in Maine. . . . Accordingly, the court concludes [Tom Brown] had done acts "by which purposefully availed itself of the privilege of conducting activities within the forum State Maine, thus invoking the benefits and protections of its laws." Hansen v. Denckla , 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958).

This appeal followed.

II.

In determining whether the Maine court's exercise of jurisdiction in this case is consistent both with Maine's long arm statute and with constitutional requirements of due process, we must re-examine the jurisdictional issue de novo . Frank E. Basil, Inc. v. Guardino , 424 A.2d 70, 74 (D.C. 1980). In doing so, we apply Maine law. "While it is fundamental that the District of Columbia courts may inquire into the jurisdiction of a foreign court before enforcing its judgment[,] the jurisdictional standards to be applied are not our own but those of the foreign forum, if its standards comply with constitutional due process." Id . at 73 (internal brackets omitted) (citing Varone v. Varone , 296 A.2d 174, 177 (D.C. 1972)); see also Vickery v. Garretson , 527 A.2d 293, 299 (D.C. 1987).

A.

Francis argues at the outset that Tom Brown waived its right to contest in personam jurisdiction when it appeared in the Maine litigation without asserting lack of jurisdiction. See Architectural Woodcraft Co. v. Read , 464 A.2d 210, 212 (Me. 1983) ("personal jurisdiction is normally waived as a defense if it is neither raised by motion nor set forth in a responsive pleading. M.R.Civ.P. 12(h)(1).") There is substantial merit to this point. Tom Brown asked for an extension of time in the Maine suit, then retained counsel and attempted to file an answer to the complaint. Neither document contested personal jurisdiction. However, because the answer was tendered late and failed "to show any evidence of a meritorious defense," the Maine trial court refused to accept it and, by entering a default judgment, treated the case as though ...


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