[Cite as Vadasz v. Vadasz , 2011-Ohio-5223.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA ) JESSICA VADASZ, et al. Appellees

v. JOHN VADASZ, et al. Appellants C.A. No. 10CA0084-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 08CIV2189

DECISION AND JOURNAL ENTRY Dated: October 11, 2011

Moore, Judge. {¶1} Appellant, Nicholas Vadasz, appeals the ju dgment of the Medina County Court of

Common Pleas. This Court reverses and remands for proceedings consistent with this opinion.

I. On June 6, 2006, Appellees, Jessica Vadasz, St ephanie Vadasz, and Allison Vadasz, filed suit in the Circuit Court of the Twentieth Judicial Circuit of Florida against Appellant, Nicholas Vadasz, and his father as co-trustees of the Mary S. Vadasz Living Trust. Mary Vadasz was Appellant’s grandmother. On August 29, 2006, the Florida court ente red default judgment against Appellant. Appellees filed a motion fo r final judgment, and on September 12, 2008, the Florida court entered judgment against Appellant and his father in favor of Appellees in the amount of $523,759.08. On December 4, 2008, Appellees filed in the Medina County Court of Common Pleas an affidavit with a certified copy of the Florida judgment and a “precipe for certificate of judgment lien.” On December 9, 20 08, notice of the filing of the foreign judgment2

was sent to John Vadasz, Appellant’s father and co-trustee. A certificate of foreign judgment was issued against both John Vadasz and Appellant on January 23, 2009. {¶2} On October 15, 2009, Appellant moved to va cate this foreign judgment because his name was not listed on the praeci pe, and he did not have notice of its filing. An oral hearing was held before the magistrate on November 24, 2009, and the magistrate recommended that the trial court vacate the foreign judgment ente red against Appellant. On December 14, 2009, the trial court vacated the certificate of foreign judgment against Appellant and reissued the certificate of foreign judgment so lely against John Vadasz. {¶3} Appellees subsequently filed new instruc tions for service in order to have the foreign judgment reissued against Appellant . On December 30, 2009, Appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B) and a motion to deny full faith and credit recognition to the void foreign judgment. Specif ically, he argued that the foreign judgment

should not be certified because Florida did not ha ve personal jurisdiction over him. Appellees filed a response to the motions on January 5, 2010, and Appellant filed a re ply to this response on January 12, 2010. {¶4} On April 8, 2010, an oral hearing was held before the magistrate. Thereafter, both parties submitted final closing arguments and proposed findings of fact and law. On May 17, 2010, the magistrate issued a decision denying A ppellant’s Civ.R. 60(B) motion and finding the foreign judgment against Appellant enforceable in Ohio. Appellant f iled objections to the magistrate’s decision on May 27, 2010. On June 24, 2010, an oral hearing was held regarding Appellant’s objections. On June 30, 2010, the trial court adopted the magistrate’s decision in full and separately en tered judgment.3

{¶5} Appellant timely filed a notice of appeal. He raises two assignments of error for our review. We have rearranged Appellant’s assignments of error to facilitate our review.

II.

ASSIGNMENT OF ERROR II

“THE TRIAL COURT ERRED IN FINDING THE APPELLANT HAD SUFFICIENT MINIMUM CONTACTS WITH THE STATE OF FLORIDA, IN PARTICULAR THAT THE APPELLANT’S RECREATIONAL VISITS TO THE STATE OF FLORIDA WERE SUFFICIENT TO GIVE FLORIDA PERSONAL JURISDICTION OVER THE APPELLANT.” {¶6} In his second assignment error, Appellant argues that the trial court erred in adopting the magistrate’s finding that he had sufficient minimum contacts to give Florida personal jurisdiction over th e Appellant. We agree. {¶7} Ohio’s Uniform Enforcement of Foreign Judgments Act, R.C. 2329.021 through 2329.027, sets forth this state’s obligations under th e Full Faith and Credit Clause of the United

States Constitution. “The doctrine of full faith and credit requires that the state of Ohio give to these acts, records, and judicial proceedings of another state the same faith and credit ‘as they have by law or usage in the courts of su ch State * * * from which they are taken.’” Holzemer v.

Urbanski (1999), 86 Ohio St.3d 129, 132. {¶8} However, “[a] foreign judgment is subject to collateral attack in Ohio * * * if there was no subject-matter or pe rsonal jurisdiction to render the judgment under the law of the foreign state.” Rita Ann Distrib. v. Brown Drug Co ., 164 Ohio App.3d 145, 2005-Ohio-5786, at ¶11, citing Litsinger Sign Co. v. Am. Sign Co . (1967), 11 Ohio St.2d 1; Reyna v. Escobar , 3d Dist. No. 13-04-39, 2005-Ohio-424, at ¶10. “A j udgment rendered by a court that lacks jurisdiction over the person is void.” Wood v. Fliehman , 193 Ohio App.3d 454, 2011-Ohio2101, at ¶9, citing CompuServe, Inc. v. Trionfo (1993), 91 Ohio App.3d 157, 161.4

{¶9} This Court generally reviews a trial court’s action with respect to a magistrate’s

decision for an abuse of discretion. Fields v. Cloyd , 9th Dist. No. 24150, 2008-Ohio-5232, at ¶9. “In so doing, we consider the tr ial court’s action with reference to the nature of the underlying

matter.” Tabatabai v. Tabatabai , 9th Dist. No. 08CA0049–M, 2009–Ohio–3139, at ¶ 18. We

review a trial court’s determination of personal jurisdic tion, including whether a nonresident defendant had the requisite minimu m contacts with a forum state, under a de novo standard of

review. Hack v. Fisher-Bord Worldwide Moving , 9th Dist. No. 20914, 2002-Ohio-3863, at ¶8. {¶10} In determining whether a state court ha s personal jurisdiction over a nonresident, the court must conduct a two-step analysis. “Fir st, the court must determine whether the state’s ‘long-arm’ statute and applicable civil rule confer personal jurisdiction[.]” U.S. Sprint Communications Co., Ltd. Partnership v. Mr. K’s Foods, Inc. (1994), 68 Ohio St.3d 181, 183- 184. Second, the court must also determine wh ether the defendant has sufficient “minimum contacts” with the forum state to satisfy the Due Process Clause of the Fourteenth Amendment

such that “maintenance of the suit does not offend ‘traditional notions of fa ir play and substantial justice.’” Internatl. Shoe Co. v. Washington (1945), 326 U.S. 310, 316. {¶11} Appellant does not contest the applicati on of the Florida Long Arm Statute. Instead, he argues that he does not have sufficient minimum contacts with the state to satisfy the

Due Process Clause of the Fourteenth Amendment. “The question of whether the assertion of personal jurisdiction comports with the due proc ess requirements of the Fourteenth Amendment is governed by federal law.” Durkin v. Gran Turismo Jaguar (Dec. 17, 1999), 11th Dist. No. 98- L-101, at *4, See, also, Joffe v. Cable Tech, Inc. , 163 Ohio App.3d 479, 2005-Ohio-4930, at ¶26.5

{¶12} To determine whether Appellant had minimum contacts with the forum state, “the constitutional touchstone remains whether the defendant purposefully established ‘minimum

contacts’ in the forum State.” Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 474, citing

Internatl. Shoe Co ., 326 U.S. at 316. There is a requireme nt of purposeful availment to ensure “that a defendant will not be haled into a jurisdic tion solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” (Citations omitted). Burger King Corp. , 471 U.S. at 475. Once this is established, this Court must also determine “whether the assertion of personal jurisdiction would comport with ‘fair play and subs tantial justice.’” Id., quoting Internatl. Shoe Co ., 326 U.S. at 320. “The test for minimum contacts may not be a pplied mechanically; rather, the facts of each case must be weighed to determine whether sufficient affiliating circumstances are present.” (Citations omitted.) State ex rel. Wayne Cty. Child Support Enforcement Agency v. Tanner (2001), 146 Ohio App.3d 765, 768. {¶13} In Appellant’s Civ.R. 60(B) motion, he ar gued that the underlying judgment was void because the state of Florida lacked personal jurisdiction over him. Appellant further argued that he never submitted to the jurisdiction of the state of Florida because he was not represented by counsel in Florida, did not respond to the pleadi ngs or motions filed in that state, and did not present any evidence to the Florida court. In addition, he did not have the requisite minimum contacts with Florida to give that court persona l jurisdiction over him. His supporting affidavit averred that his only connection with Florida was that he was named co-trustee of a living trust in Florida, a position he neither accepted nor acted under. Instead, all act ivities with regard to the trust were handled by his father, acting as co-trustee. In addition, he never spoke with anyone regarding his duties as co-trustee, and had no knowledge of his du ties or responsibilities with respect to the beneficiaries.6

{¶14} “Once a defendant has challenged the tria l court’s personal ju risdiction over him or her, the plaintiff bears the burden of proving ju risdiction by a preponderance of the evidence.” (Internal citations and quotations omitted.) ComDoc v. Advance Print Copy Ship Ctr ., 9th Dist. No. 24212, 2009-Ohio-2998, at ¶3. Appellees failed to submit any affidavits with their response to contradict Appellant’s arguments. Although Appellees failed to submit any evidence in response to Appellant’s motion, the trial court chose to conduct a hearing. {¶15} Much of the testimony elicited at the hearing was vague. Appellant concedes that he was named co-trustee of his grandmother’s trust, but avers that he did not personally participate in the administrati on of the trust. The trust was created in 1991, and there were approximately five co-trustees at that time. Thereafter there were approximately five amendments to the trust. Throughout those years, Appellant and his father remained trustees. When asked if he knew his responsibilities as co-trustee, he responded “I had an idea, but my dad said he would take care of everyt hing, I didn’t have to worry about it.” {¶16} The hearing established that Appellant wa s physically present in Florida in 2003 for vacation with his family, that he has never b een in Florida other than while on vacation, that the trust concerned real estate in the state of Florida, that in Ohio he signed a trust deed conveying Florida property, and that from Ohio he sent a letter to his father in Florida in 2006 questioning his father’s actions with regard to the trust. The trial court determined that Appellant’s “physical presence within the State of Florida in various years is sufficient minimum contact to negate any constitutional personal jurisdiction limitations.” {¶17} Upon review, we conclude that Appellees failed to meet their burden of proving jurisdiction by a preponderance of the evidence. Id. Although many courts have held that terms

of the trust document or the intent of the se ttlor may govern jurisdiction, Appellees failed to7

make the trust documents a part of the record below. See Norton v. Bridges (1983), 712 F.2d 1156, 1161. Testimony at the hearing failed to rev eal whether the trust instrument was explicit as to the intended jurisdiction. Ma ny courts have held that, “[i]n the case of an inter vivos trust where the administration of the trust is fixed in a particular state, the courts of that state will exercise jurisdiction.” Id. at 1160, quoting Restatement (Second) of Conflict of Laws §267 reporter’s note (rev.ed.1971). Here , the plaintiffs failed to present any evidence regarding the place of administration of the trust. The Norton court further noted that it “is neither the actual physical location of the trust assets nor whether the trust is inter vivos or testamentary” that is dispositive of jurisdiction, but rather the fact that the “trust was not administered in the state claiming jurisdiction.” Id. at 1161. Although ther e is testimony that there were trust assets located in the state of Florida, there is no testimony as to the administration of the trust assets. In addition, where, as here, the “named trustee is an individual, * * * it is less certain that his or her domicile at any particular time re flects the intent of the settlor to fix that forum as the place of administration.” Id. The burden was on the plai ntiff-Appellees to provide the trial court with evidence regarding the administration of the trust, and none is in the record. {¶18} In Hanson v. Denckla (1958), 357 U.S. 235, a Pennsylvania settlor created an inter vivos trust and named a Delaware trust company as trustee. The settlor subsequently moved to Florida, and after her death, the will was admitted to probate there. The United States Supreme Court held that Florida lacked personal jurisdiction over the trust company, stating: “We fail to find such [minimum] contacts in the circumstances of this case. The defendant trust company has no office in Florida, and transacts no business there. None of the trust assets has ever been held or administered in Florida, and the record discloses no so licitation of business in that State either in person or by mail.” Id. at 251. Here, no evidence was presented and the8

testimony at the hearing failed to reveal the ci rcumstances of the trust’s creation, where the cotrustees or settlor resided at the time of creation, or what assets were involved and where those

assets were held or administered. {¶19} Testimony from the hearing avers that th e trust concerned at least one piece of real property in the state of Florida. It does not disclose the place of creation or whether the

settlor was a resident of Florida at the time of cr eation. Furthermore, “[t]he fact that the trust [may have been] created in [Florida] by a [Flo rida] settlor is not, by itself, dispositive.” Norton , 712 F.2d at 1161, citing Cocke v. Duke University (1963), 260 N.C. 1. Instead, the place of registration of the trust is more significant. Id. The place of registration of the trust also was not made a part of the record. The burden was on Appe llees to prove jurisdiction in the trial court, and they failed to submit any evidence in support of this contention. {¶20} The record indicates that Appellant’s only contacts with the state of Florida were family vacations many years earlier, the signing in Oh io of one deed at the direction of his father, and the sending from Ohio of a letter to his father inquiring about his actions with regard to the trust. These are precisely the sort of “‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts” that the Fourteenth Amendment protects against. Burger King Corp. , 471 U.S. at 475. It is not foreseeable that these contacts would put A ppellant on notice that he “should reasonably anticipate being haled into court there.” Id., quoting World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 295. Concluding otherwise woul d “offend traditional notions of fair play and substantial justice.” Internatl. Shoe Co. , 326 U.S. at 316. {¶21} Appellant’s second assignment of error is su stained. We conclude that the Florida court lacked personal jurisdicti on over Appellant. As such, the judgment was void. See Compuserve, Inc. , 91 Ohio App.3d at 161. Accordingly, we reverse the judgment of the Medina9

Court of Common Pleas and remand the matter to the trial court to deny full faith and credit to the Florida judgment.

ASSIGNMENT OF ERROR I “THE TRIAL COURT ERRED IN FINDING THAT OHIO CIV. RULE 60(B) IS NOT A PROPER MECHANISM FOR VOIDING A FOREIGN JUDGMENT FOR LACK OF JURISDICTION, AND FOR DENYING FULL FAITH AND CREDIT RECOGNITION TO THAT FOREIGN JUDGMENT.” {¶22} In his first assignment of error, Appellant maintains that the filing of a Civ.R. 60(B) motion was the proper mechanism for voiding a foreign judgment. However, in light of our disposition of Appellant’s second assignment of error, we need not address this first assignment of error as it is rendered moot.

III. {¶23} Appellant’s second assignment of error is su stained. His first assignment of error is rendered moot. The judgment of the Medina County Court of Common Pleas is reversed and the matter is remanded with instructions for the trial court to deny full faith and credit to the judgment of the Circuit Court of the Tw entieth Judicial Circuit of Florida. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27.10

Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellees.

CARLA MOORE FOR THE COURT

BELFANCE, P. J. CONCURS, SAYING: {¶24} I concur. The transcript of the hearing th at took place totals sixteen pages. The questions asked are often vague and imprecise, leading to answ ers which are often ambiguous and difficult to interpret. For example, Appellant was asked if he “participate[d] in the proceedings in Florida to remove [his] father as principal trustee[.]” Appellant did not affirmatively answer this question but did acknowle dge that “[w]e tried to remove him, yes.” Aside from not actually stating he participated in “the proceedings,” the nature or type of “proceedings” is not further clarified, nor is Ap pellant’s participation discussed in any detail apart from an acknowledgment by Appellant that he was in Ohio and “sent documents to Florida[.]” And, while there is testimony indi cating that the trust “was in Florida[]” and “concerns real estate that was in the State of Florida,” it is unclear what precisely that means. The trust itself is not part of the record, and it is unclear whether the trust was created in Florida, was to be governed under Florida law, or whet her the trust included property located in other11

states in addition to Florida. In addition, ther e is no information in the record concerning the place of administration or registration of the trust. Further, Appellant specifically testified that he did not personally participate in the administra tion of the trust and that he has never been to

Florida other than on vacation. He has no busin esses or offices there, no employment or employees there, and no property there. He testif ied that he believed that his father was handling the trust. From the transcript, it appears that Appellant’s contacts with Florida are limited to signing a trustee’s deed, a related contract for sale of property, and sending a letter to his father in Florida about the trust. I cannot say that due process concerns have been met. Accordingly, I

concur.

CARR, J. DISSENTS, SAYING: {¶25} I respectfully dissent. I would concl ude that Appellant had minimum contacts with the state of Florida so as to establish personal jurisdiction in conjunction with the undisputed application of Florida’s long-arm st atute. Appellant admitted at the hearing to signing the deed which was the subject matter of the underlying lawsuit in Florida. He admitted to conducting activity, specifically signing deed s and other papers, having to do with his responsibilities as a trustee of the Florida trus t. In addition, Appella nt admitted to having participated in proceedings in Florida to remove his father as the principal trustee of the trust. I would not characterize these acts as mere “random, fortuitous, or attenuated contacts,” as does the majority. Rather, I would conclude that Ap pellant took a proactive role in regard to his position as a co-trustee. Furtherm ore, Appellant’s alleged conduct which gave rise to the money judgment against him in the Florida court would constitute committing a tortious act within that State. See F.S.A. 48.193(1)(b). A ppellant’s execution of a Florida deed allowing for the sale of12

trust property created the liquida ted trust asset whic h Appellant was found to have improperly converted. Therefore, Appellant’s conduct subjected him to the juri sdiction of the Florida courts pursuant to that state’s long-arm statute, see F.S.A. 48.193(1)(b), and formed the basis of activity sufficient to give rise to minimum contacts with th at state for purposes of due process. I would affirm the trial court’s judgment.

APPEARANCES: TIMOTHY N. TOMA and SHANNON MCCORMICK, Attorneys at Law, for Appellant. STEPHEN J. BROWN, Attorney at Law, for Appellee.