ALP Federal Credit Union v. Ashborn

CONNOR, J.,

with whom RABINO-WITZ, J., joins (dissenting):

I dissent.

The undisputed facts of the case demonstrate that: (1) the appellant instructed West Coast to collect the face of thefnote; (2) the appellant instructed West Coast to repossess appellant’s car if unable to collect the face of the note plus interest; (3) the appellant received the return of the sale of the repossessed car from West Coast; (4) West Coast remitted $1,500.00 of the sale price to appellant, retaining $200.00 to cover service charges.

It is apparent from these facts that appellant overtly performed acts making it a party to and participant in a business transaction in Washington, thereby sub*351mitting to the jurisdiction of Washington courts under the “long-arm” statute. In my opinion the question of whether or not West Coast was the agent of appellant is immaterial.

The “long-arm” statute of the State of Washington (Rev.Code of Washington, Section 4.28.185) provides in part:

“Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts: (a) The transaction of any busines within this state; * * *.”

When appellant arranged for the collection of the note and the repossession of the automobile by a Washington State organization, the appellant transacted business within the State of Washington. This conclusion is in harmony wtih the interpretation given to the “long-arm” statute by the Supreme Court of the State of Washington. In the case of Griffiths & Sprague Stevedoring Company v. Bayly, Martin & Fay, Inc., 71 Wash.2d 679, 430 P.2d 600 (1967), the court held that when the defendant California insurance brokers ordered insurance by telephone and mail from or through a Washington insurance broker, it satisfied the “transaction of any business” provision of the statute. The court concluded that it was immaterial that the California corporation contemplated that the ultimate insurer might be a foreign agency. The court based its holding on the theory that the existence of a connecting link between the nonresident and the forum state is sufficient to vest jurisdiction under the “long-arm” statute:

“The connecting link then may consist of * * * the initiation of a transaction outside the state in contemplation that some phase of it will take place in the forum state * * *.” 430 P.2d at 603.1

The conclusion that appellant submitted to the jurisdiction of the Washington court because he was transacting business is also consonant with our holding in Northern Supply Inc. v. Curtiss-Wright Corp., 397 P.2d 1013 (Alaska 1965). In that case we construed the section of the Corporations Code which provides for substituted service on foreign corporations “authorized to transact business in the state, or not authorized to transact business in the state but doing so.”2 We emphatically concluded that the words “transact business” encompassed all activities which would subject a foreign corporation to the “jurisdiction of our courts when measured by the outer limits of the due process clause of the federal constitution.” (397 P.2d at 1016-1017).3 Since it is quite obviously our policy to extend the jurisdiction of the Alaska courts to the constitutionally permissible limits, it is patently inconsistent to place limitations on the jurisdiction of the Washington courts.4

In Tyee Construction Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d *352245, 251 (1963), the Washington court concluded that under the “long-arm” statute

“[T]here are three basic factors which must coincide if jurisdiction is to be entertained. Such would appear to be: (1) The nonresident defendant * * * must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.” (Footnotes omitted.)

These enumerated factors coincide in the case under consideration. The defendant contacted West Coast in the forum state to collect the note. This was a purposeful act, as was the correspondence with appellant concerning the matter. The cause of action for wrongful repossession was most certainly connected with the purposeful act of the defendant. Neither does the assumption of jurisdiction offend traditional notions of fair play and substantial justice. This is substantially the conclusion reached by the Alaska trial court when it found that

“[Djefendant in fact caused the repossession to take place. Defendant’s doing so provided a sufficient contact with the State of Washington, such that maintenance of a suit against defendant there does not offend traditional notions of fair play and substantial justice.”5

The summary judgment entered by the Alaska court was proper because there was no true factual issue before the court. Appellant by affidavit admitted that West Coast had been requested to collect the sums due from appellee. Further, the letters from appellant to appellee concerning possible repossession were before the trial court. It was not disputed that these letters had been sent and received. There was simply no disagreement about the fact that appellant had contracted with the Washington firm. Civil Rule 56(c) provides in part:

“[Judgment] shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, * * * show that there is no genuine issue as to any material fact and that [any] party is entitled to a judgment as a matter of law.”

Under the full faith and credit clause of Article IV, Section 1, of the United States Constitution and an act of Congress, 28 U.S.C. § 1738, the duly attested record of the judgment of a state is entitled to such faith and credit in every court within the United States as it has by law or usage in the state from which it is taken, and if it appears on its face, as here, to be a record of a court of general jurisdiction, its jurisdiction over the cause and the parties is presumed. Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 82 L.Ed. 649, 651 (1938), and cases there cited. *353Of course in a suit upon the judgment of another state the jurisdiction of the court which rendered it is open to judicial inquiry. Adam v. Saenger, supra. Here the appropriate inquiry was made in the Alaska superior court, which concluded that appellant had sufficient contact to establish jurisdiction under the Washington statute as a matter of law. This conclusion should not be disturbed on appeal.

This case illustrates the substantial principles of justice which underlie the full faith and credit clause. Appellee suffered harm in the State of Washington because of acts set in motion by appellant. He brought suit in that state to recover for the harm done. Appellant was properly served but chose not to defend. Now, under what in my opinion is a valid judgment of the Washington courts, appellee is told that he must establish his cause of action anew in Alaska. He ha%,had to defend this appeal. If he must now litigate anew the entire cause of action, including the agency question on which the majority opinion places such emphasis, it will amount to a frustration of justice even if he should prevail.

I would affirm the judgment of the superior court.

. For a collection of cases considering a single contractual transaction and sustaining the exercise of personal jurisdiction, see Wichman v. Hughes, 450 S.W.2d 294, 296 (Ark.1970).

. AS 10.05.642. It should be noted that this service of process statute relating to foreign corporations provides only for substituted service. That is, service is made on the Commissioner of Commerce who mails the process to the foreign corporation. The Washington State “long-arm” statute provides for personal service.

. We reached the same conclusion in Stephenson v. Duriron Co., 401 P.2d 423 (Alaska 1965).

. The Washington court interprets the “long-arm” statute as reflecting on the part of the legislature “a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.” Tyee Construction Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245, 247 (1963).

. It is recognized that appellant did not commit a “tortious act” in the State of Washington. Rather, my disagreement with the majority opinion is grounded entirely on my conclusion that the appellant was “transacting business” in the State of Washington, and that the cause of action arose from that transaction. The New York Court of Appeals has construed its “long-arm” statute (which is very similar to the Washington “long-arm” statute) to uphold jurisdiction under the “transaction of business” category when the actual pleaded cause of action sounded in tort. The New York court has stated that “[i]t is clear that paragraph 1 is not limited to actions in contract; it applies as well to actions in tort when supported by a sufficient showing of facts.” Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 26, 209 N.E.2d 68, 81 (N.Y.1965). See also Janklow v. Williams, 43 Misc.2d 1053, 252 N.Y.S.2d 785, 787 (Sup.Ct.1964).