FINANCIAL FEDERAL CREDIT INC. v. Brown

Justice KITTREDGE:

I concur in the result reached by Justice Beatty and agree that the circuit court’s order granting Brown’s motion to *568dismiss must be reversed. Service of the pleadings on Brown pursuant to Texas law ends his personal jurisdiction challenge. I write separately because I find it unnecessary to reach Brown’s claim that FFC’s service of its summons and complaint on itself violates due process.

Brown challenged the validity of the Texas default judgment and argued that it was void due to lack of personal jurisdiction. As Justice Beatty correctly observes, because this judgment originated in Texas, we must look to that state’s laws to determine its effect and validity. Minorplanet Systems USA Ltd. v. American Aire, Inc., 368 S.C. 146, 149, 628 S.E.2d 43, 45 (2006) (“The validity and effect of a foreign judgment must be determined by the laws of the state which rendered the judgment.”).

A court must make two findings before it may find that it has personal jurisdiction over a particular defendant. The first requirement of personal jurisdiction is that a defendant have minimum contacts with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). In this case, the forum selection clause contained in the Guaranty gave the Texas courts personal jurisdiction over Brown concerning his agreement with FFC. See In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex.2004) (recognizing that a defendant waives any objection to lack of personal jurisdiction by agreeing to a clause naming Texas as the forum). Brown has not challenged the validity of this portion of the forum selection clause.

Second, it must be determined whether service was proper under Texas law. Furst v. Smith, 176 S.W.3d 864, 868 (Tex.App.2005) (observing that if a defendant is amenable to the jurisdiction of a court, a plaintiff invokes that jurisdiction by valid service of process).

In my view, Justice Beatty’s opinion conflates minimum contacts and service of process. The matter of minimum contacts is satisfied by the unchallenged venue selection provision. The service of process issue is resolved through service of the pleadings on Brown under Texas law. After FFC served itself with the pleadings, the pleadings were promptly served on Brown by certified mail to Brown’s last known *569address, as the parties’ agreement required.5 Rule 21(a), Tex.R.Civ.P. (providing that pleadings “may be served ... by certified or registered mail, to the party’s last known address ... Service by mail shall be complete upon deposit of the paper ... in a post office.... ”).

Accordingly, the service of the pleadings on Brown was proper. Because FFC established personal jurisdiction by demonstrating minimum contacts and proper service, Brown’s personal jurisdiction challenge ends, making a resolution of his due process challenge to the validity of the self-service clause unnecessary.

Not only does the Court need not reach the due process challenge to self-service clauses, the facts of the case do not squarely present this issue. Contrary to Brown’s assertion, the agreement between FFC and Brown does not contain a true self-service clause, for FFC (as Brown’s agent) was required “to give written notice of such service or waiver to [Brown] within three (3) days after service was effected or such waiver was executed, by mailing such written notice to [Brown’s] address ... by certified mail, return receipt requested.” The contract therefore required notice to Brown of any process notwithstanding the ability of FFC to initially serve itself or waive service. Compliance with the Texas rules concerning service also satisfied this contractual provision. Consequently, the terms of this contract do not present a true self-service clause.

I am concerned that the opinion of Justice Beatty may be construed as giving this Court’s imprimatur to self-service clauses in all contracts, regardless of the nature of the contract, the sophistication of the parties and other considerations. Justice Beatty notes that FFC “did essentially serve itself, but with the consent of Brown via the Guaranty agreement.” Justice Beatty further states without reservation that “where service is accomplished in a manner consented to by the defendant, service of process is valid and a court has jurisdiction over the defendant for purposes of entering judg*570ment.” I do not subscribe to the view that the presence of a self-service provision in a contract comports with due process in all cases. I am concerned the lead opinion may be giving an unintended green light for self-service clauses in the boilerplate of every contract under the sun.

In my judgment, the posture of this case dictates we not reach the due process challenge. This is similar to the approach taken in National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). In National Equipment, defendants, who were Michigan farmers, leased farm equipment from the plaintiff corporation. The lease purported to authorize service of process on Florence Weinberg of Long Island, New York. Although not disclosed, Florence Weinberg was the wife of one of the plaintiff corporation’s officers. Plaintiff commenced an action in New York alleging defendants failed to make payments under the lease. Plaintiff served defendants by having the pleadings delivered to Mrs. Weinberg. Significantly, plaintiff and Mrs. Weinberg also served defendants with the summons and complaint by certified mail in accordance with applicable service of process rules. Defendants defaulted and a judgment was entered for plaintiff. Defendants’ effort to quash the service of the pleadings was ultimately decided by the Supreme Court. “Since [defendants] did in fact receive complete and timely notice of the lawsuit pending against them,” the Court declined to reach the due process claim. Id. at 315, 84 S.Ct. 411. (“We need not and do not in this case reach the situation where no personal notice has been given to the defendant. Since the respondents did in fact receive complete and timely notice of the lawsuit pending against them, no due process claim has been made. The case before us is therefore quite different from cases where there was no actual notice ...”).

I would reverse the trial court only on the basis that Brown was subject to personal jurisdiction in Texas and was properly served with the pleadings under Texas law.

TOAL, C.J. and PLEICONES, J., concur.

. The Guaranty agreement required FFC, following either service of the pleadings on itself or waiver of service, to give written notice of such action to Brown within three days by certified mail, return receipt requested.