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THE STATE OF SOUTH CAROLINA
In The Court of Appeals
________

Francis Gregoire, Respondent,

v.

Gary S. Byrd, Appellant.

________

ORDER WITHDRAWING ORIGINAL OPINION AND
SUBSTITUTING SUBSEQUENT OPINION, AND
DENYING PETITION FOR REHEARING

______________________________________________________

PER CURIAM: Opinion No. 3066, filed in the appeal above on November 1, 1999, is hereby withdrawn and the following opinion is substituted therfor. Furthermore, after careful consideration of the Petition for Rehearing, the court is unable to discover any material fact or principle of law that was either overlooked or disregarded. Accordingly, there is no basis for rehearing. It is therefore ordered that the petition for rehearing is denied.

AND IT IS SO ORDERED.

s/ GOOLSBY, J.

s/ CONNOR, J.

I adhere to my dissent and would grant the rehearing.

s/ ANDERSON, J.

Columbia, South Carolina

_____________________________

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
________

Francis Gregoire, Respondent,

v.

Gary S. Byrd, Appellant.

________

Appeal From Lexington County
George W. Jefferson, Special Circuit Judge
________

Opinion No. 3066
Heard October 6, 1999 - Filed November 1, 1999
Refiled January 17, 2000
________

AFFIRMED
________

C. Rauch Wise, of Greenwood, for appellant.

Dalton H. Watkins, of The Watkins Law Firm, of Columbia, for respondent.

________

GOOLSBY, J.: Francis Gregoire sued Gary S. Byrd seeking an order enforcing a Maine judgment. The trial court held the Maine judgment was entitled to full faith and credit in South Carolina. Byrd appeals. We affirm.

On January 31, 1994, Gregoire, a Maine resident, came to South Carolina and purchased a 1966 Ford Mustang from Byrd, a South Carolina resident, for $9,500.00. Later, after becoming dissatisfied with the car, Gregoire sued Byrd in the District Court, Division of Eastern York, State of Maine, alleging causes of action for misrepresentation and breach of warranty. Byrd answered the complaint asserting, "I do not submit to the jurisdiction of this court." Byrd also denied Gregoire's allegations and asserted various substantive defenses.

On February 1, 1995, Gregoire filed a summary judgment motion. Accompanying the motion were a document entitled "Plaintiff's Statement of Undisputed Facts" and an affidavit executed by Gregoire himself. Both these documents address the material allegations of Gregoire's substantive claims as well as the issue of personal jurisdiction.

Within the motion was a memorandum of law entitled "Section 1 - Jurisdiction," in which Gregoire requested "an order granting summary judgment on the issue of personal jurisdiction in this case" and gave a detailed argument supporting this request. In the motion itself, however, Gregoire requested "summary judgment on his claim, on the grounds that there is no genuine issue as to any material fact set forth in the pleadings and Affidavit of Plaintiff annexed hereto, and that Plaintiff is entitled to judgment as a matter of law."

As required by Maine court rules, the summary judgment motion included language advising Byrd that he had 21 days after the filing of the motion to file any matter in opposition to it, that Byrd's failure to "file timely opposition" would be deemed a waiver of all objections to the motion, and that the motion could be granted without further notice or hearing in the event of such a failure.(1) On February 27, 1995, several days after the time to file a response had expired, Byrd filed two documents with the Maine court. In the first document, entitled "Responce [sic] to Motion for Summary Judgment," Byrd asserted the Maine court did not have personal jurisdiction over him. In the second document, entitled "Defendant's Statement of Undisputed Facts," Byrd gave his version of the substantive facts of the case.

On May 15, 1995, the Maine court ruled and wrote on the face of Gregoire's motion: "Summary Judgment Granted on the issue of liability, only, in favor of Plaintiff. The Clerk shall schedule a hearing in damage [sic] and notify the parties." (Emphasis added.) The damages hearing took place July 17, 1995, and Byrd appeared at the hearing. That same day the Maine court also entered a judgment against Byrd for $2,000. An amended order followed July 26, 1995, increasing the award to $6,500. Byrd moved, apparently unsuccessfully, to vacate the judgment,(2) but took no appeal from the decision.

Gregoire subsequently filed this action in the Lexington County Court of Common Pleas, seeking a South Carolina judgment against Byrd based on the Maine judgment. The trial court held Byrd, after "having appeared and filed responsive pleadings and a response to Plaintiff's Motion for Summary Judgment, including matters related to the question of jurisdiction," could not collaterally attack the judgment of the Maine court. Furthermore, the trial court found the Maine court's exercise of personal jurisdiction over Byrd did not violate Byrd's due process rights. Accordingly, the trial court accorded the Maine judgment full faith and credit in South Carolina.

Byrd contends the trial court erred in giving full faith and credit to the Maine judgment, claiming: (1) the issue of personal jurisdiction was not fully and fairly litigated and (2) the Maine court did not have personal jurisdiction over him. We agree with the trial court that Byrd cannot assert these arguments in South Carolina.

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 . . . judicial Proceedings of every other State."(3) The thrust of the clause is that courts of one state must give such force and effect to a foreign judgment as the judgment would receive in the issuing state.(4) As a result, "a foreign judgment which is regular on its face generally may not be collaterally attacked."(5)

In Colonial Pacific Leasing Corp. v. Taylor,(6) this court affirmed an order giving full faith and credit to an Oregon judgment. In that case, the defendant had raised to the Oregon court the issue of personal jurisdiction along with other defenses. This court affirmed the finding that the defendant could have litigated the issue of personal jurisdiction in the Oregon proceeding by virtue of having made a general appearance in that action.(7)

Byrd contends the Maine court did not make specific factual findings or issue any rulings on personal jurisdiction and the trial court therefore erred in holding that issue was fully and fairly decided in the underlying action. He attempts to distinguish Colonial Pacific by arguing the defendant in that case "after initially raising the issue of lack of personal jurisdiction, never filed any other papers or documents in support of its position . . . [whereas] [i]n the present case [Byrd] filed a response to the issue of lack of personal jurisdiction." As we understand Byrd's argument, he contends: (1) unlike the present case, the issue of whether the Oregon court in Colonial Pacific Leasing Corp. actually ruled on the issue of personal jurisdiction was not on appeal before this court and (2) because he continued to challenge the assertion of personal jurisdiction in his response to Gregoire's summary judgment motion, the Maine court had to issue an explicit ruling on this question before the judgment could be given full faith and credit in South Carolina. We disagree.

Notwithstanding "the general rule that a judgment is entitled to full faith and credit - even as to questions of jurisdiction - when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment,"(8) the absence of an explicit ruling on personal jurisdiction in this case does not make the Maine judgment unenforceable under the Full Faith and Credit Clause.

First, the presumption of regularity of a judgment includes the presumption that the issuing court had jurisdiction over the subject matter and the parties.(9)

Second, contrary to Byrd's contention on appeal, the summary judgment motion encompassed more than the issue of personal jurisdiction. The documents filed with the motion related specific facts concerning Byrd's liability, and Gregoire stated in the motion itself that he was moving for "summary judgment on his claim." Byrd's response to the summary judgment motion was not timely; therefore, there were no issues of material fact to prevent the Maine court from granting summary judgment on the issue of liability.(10)

Finally, although Byrd himself raised the issue of personal jurisdiction and had the opportunity to litigate it in the Maine proceeding, he made, at best, only a procedurally deficient motion to vacate the judgment on that basis(11) and did not pursue the issue on appeal in Maine. Because Byrd agreed to litigate the issue of personal jurisdiction in Maine, the judgment is not subject to collateral attack on that ground.(12)

Because we hold the trial court properly determined the Maine judgment was entitled to full faith and credit in South Carolina, we decline to address the merits of Byrd's jurisdictional challenge.

AFFIRMED.

CONNOR, J., concurs. ANDERSON, J., dissents in a separate opinion.

1. The Maine Rules of Civil Procedure provide in part as follows:

Any motion . . . shall include a notice that matter in opposition to the motion

. . . must be filed not later than 21 days after the filing of the motion unless another time is provided by these Rules or set by the court. The notice shall also state that failure to file timely opposition will be deemed a waiver of all objections to the motion, which may be granted without further notice or hearing. If the notice is not included in the motion, the opposing party may be heard even though matter in opposition has not been timely filed.

Me. R. Civ. P. 7(b)(1).

2. No order by the Maine court adjudicating this motion appears in the record on appeal.

3. U.S. Const. art. IV, § 1.

4. Purdie v. Smalls, 293 S.C. 216, 359 S.E.2d 306 (Ct. App. 1987).

5. Bankers Trust Co. v. Braten, 317 S.C. 547, 550, 455 S.E.2d 199, 200 (Ct. App. 1995).

6. 326 S.C. 529, 484 S.E.2d 595 (Ct. App. 1997).

7. Id. at 534, 484 S.E.2d at 597-98. Furthermore, we agree with Byrd that he did not waive his right to assert the lack of personal jurisdiction by merely including substantive defenses in his answer. See Me. R. Civ. P. 12(b) (requiring the defense of lack of personal jurisdiction to be asserted in the answer and further stating, "No defense or objection is waived by being joined with one or more other defenses or objections in the answer."). The question here, however, is not whether Byrd conceded the issue of personal jurisdiction but whether the Maine court fully and fairly decided it.

8. Durfee v. Duke, 375 U.S. 106, 111 (1963) (emphasis added) (quoted in Colonial Pac. Leasing Corp., 326 S.C. at 533, 484 S.E.2d at 597).

9. Taylor v. Taylor, 229 S.C. 92, 91 S.E.2d 876 (1956) (citing Cook v. Cook, 342 U.S. 126, (1951)).

10. See Me. R. Civ. P. 56(c) ("[Summary] [j]udgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the statements required by Rule 7(d) show that there is no genuine issue as to any material fact set forth in those statements and that any party is entitled to a judgment as a matter of law.") (emphasis added). Under Rule 7(d)(2) of the Maine Rules of Civil Procedure, "[a]ll material facts set forth in the statement required to be served by the moving party, if supported by appropriate record references, will be deemed to be admitted unless properly controverted by the statement required to be served by the opposing party." (Emphasis added.)

11. See Me. R. Civ. P. 59(e) ("A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment."); Most v. Most, 477 A.2d 250, 257 (Me. 1984) ("Although on its face, this rule [Me. R. Civ. P. 59(e)] does not specifically authorize a court to modify a judgment duly entered, its history indicates it permits substantive alteration when necessary to achieve substantial justice."). Gregoire objected to the motion, alleging, among other things, the motion failed to comply with certain procedural requirements of Rule 7 of the Maine Rules of Civil Procedure, including the requirement that a copy of the motion be sent to opposing counsel. Byrd apparently did not file anything in reply to Gregoire's objection.

12. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982) ("By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, the defendant agrees to abide by that court's determination on the issue of jurisdiction: That decision will be res judicata on that issue in any further proceedings."); Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522 (1931) (disallowing a collateral attack by the respondent on a foreign judgment and noting, among other things, that the respondent had waived its right to a direct appeal of the foreign court's adverse ruling on personal jurisdiction).