#### Lantson E. ELDRED v. Sally FLEMING Sally Fleming v. Lantson Eldred.

Nos. 2010-CA-0794, 2010-CA-0795.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 20, 2011.

Rehearing Denied March 2, 2011.

*434Irl R. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for Lantson E. Eldred.

Harry Rosenberg, Phelps Dunbar L.L.P., New Orleans, LA, for Sally Fleming.

(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge MAX N. TOBIAS, JR.).

JOAN BERNARD ARMSTRONG, Chief Judge.

|,The plaintiff, Lantson1 E. Eldred, a citizen of California, appeals a summary judgment granted by the trial court dismissing his claims against the defendant, Sally Fleming, a citizen of Louisiana. For the reasons that follow, we affirm the judgment of the trial court.

On April 26, 2002, Mr. Eldred brought suit against Ms. Fleming in Civil District Court for the Parish of Orleans (CDC), No. 02-6743, to make executory in Louisiana a 2001 judgment he had obtained in the Superior Court for the State of California, County of Riverside, in Proceeding No. INC 019498. On August 28, 2003, Ms. Fleming brought a counter-suit against Mr. Eldred in the CDC proceeding, to declare the foreign judgment null on the basis of lack of *in personam*jurisdiction and to nullify Mr. Eldred’s petition on the basis of fraud or ill practices, and for damages. Mr. Eldred filed a dilatory exception of improper cumulation of actions, which the trial court granted, allowing Ms. Fleming to sever her claims for relative nullity and damages by amending her original petition, and granting her leave to bring the claims in a new proceeding. Ms. Fleming subsequently complied with the trial court’s ruling, filing a petition, bearing CDC [2No. 07-8460, for relative nullity, damages, and attorney’s fees, encompassing the severed claims, and an amended petition and/or reconventional demand and third party petition to declare the foreign judgment null on the basis of lack of *in personam*jurisdiction. The latter amended petition contained only the claims of absolute nullity of the California Judgment and domesticated Louisiana judgment. Mr. Eldred filed an exception of lack of subject matter jurisdiction to the recon-ventional demand, and exceptions of lack of jurisdiction and prescription to the severed claims. By Order dated December 21, 2007, No. 07-8460 was transferred to the CDC division where 02-6743 was then pending. The trial court denied Mr. El-dred’s exception of lack of subject matter jurisdiction by judgment rendered on January 4, 2008 and signed on January 8, 20082, and consolidated the two actions by Order dated March 6, 2008. On February 28, 2008, Mr. Eldred applied to this Court for supervisory review of the trial court’s denial of his exceptions of lack of subject matter jurisdiction and prescription. On March 24, 2008, this Court denied the writ3, holding:

> *435We find no error in the trial court’s judgment denying Relator’s [Mr. El-dred’s] exceptions of lack of subject matter jurisdiction and lack of jurisdiction and prescription. Accordingly, Relator’s application for supervisory writ is denied.

In January 2010, Ms. Fleming moved for summary judgment, representing that there are no genuine issues of material fact as to the dispositive issue that the California court lacked *in personam*jurisdiction over her, making the California judgment an absolute nullity. The trial court granted the motion for summary judgment, nullifying absolutely the California default judgment and the subsequent I.^domesticated judgment Mr. Eldred obtained in Orleans Parish. The trial court further annulled and vacated the California judgment domesticated in Orleans Parish *nunc pro tunc*from the date of the default judgment, and ordered the Recorder of Mortgages for Orleans Parish to cancel and erase immediately the judgment entered by the trial court on April 26, 2002, and recorded on July 12, 2002 in Book No. 3688, Folio 361, bearing Mortgage Instrument No. 660964. The trial court granted Mr. Eldred’s motion for a suspensive appeal, upon his posting a $25,000.00 bond. The said bond was received by the Clerk of the trial court by receipt # 39885 dated April 13, 2010, and verified by the deputy clerk of court on April 15, 2010.

Appellate courts review summary judgment *de novo,*using the same criteria applied by trial courts to determine whether summary judgment is appropriate. *Independent Fire Insurance Company v. Sunbeam Corp.,*99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La.Code Civ. Proc. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an | .absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ. Proc. art. 966 C(2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ. Proc. art. 967; *Townley v. City of Iowa,*97-493, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

The following facts were established by Ms. Fleming’s sworn affidavit, submitted in support of her motion for summary judgment:

*4361. Ms. Fleming is and was at all relevant times a major, resident and domiciliary of the State of Louisiana.

2. Ms. Fleming is the former owner of 821-823 Governor Nicholls Street in New Orleans (the Property).

3. Daniel Resnic, a resident of the State of California, acted independently and was at no time given authority to act as Ms. Fleming’s agent or in any other way on her behalf.

4. Mr. Resnic was not authorized to enter into agreements on her behalf.

5. Under the terms of her agreement with Mr. Resnic, Ms. Fleming had the right to approve the terms of any lease entered into on the Property.

6. Ms. Fleming did not pledge to oversee or control Mr. Resnic’s work.

7. There was no understanding on Ms. Fleming’s part that Mr. Resnic would advertise the rental of the Property exclusively in California.

]fi8. Ms. Fleming has never resided in or been employed in California.

9. Ms. Fleming has never engaged in any action designed to avail herself of the legal protections of California.

10. Ms. Fleming received no payment from Mr. Resnic or Mr. Eldred, except for Mr. Eldred’s check payable to her in the amount of $75.00, representing payment of a fraction of the utility bills incurred in connection with his occupation of the Property.

11. Ms. Fleming and Mr. Resnic were named defendants in an action brought by Mr. Eldred on October 6, 2000, in the Superior Court of the State of California, Riverside County, Indio Branch.

12. In that complaint, Mr. Eldred erroneously alleged that Mr. Resnic acted as Ms. Fleming’s agent.

13. On August 22, 2001, Ms. Fleming filed a motion to quash service for lack of *in personam*jurisdiction in the California court.

14. In the motion to quash, Ms. Fleming denied Mr. Eldred’s allegation that Mr. Resnic was her agent, and asserted that there was no basis for holding her subject to the jurisdiction of the California court.

15. Ms. Fleming telephoned the California court and was informed that her motion to quash was set for hearing on November 7, 2001.

16. The hearing did not take place on November 7, 2001, but on October 11, 2001 a hearing was held in the California court and on November 7, 2001, a default judgment was entered into the court’s record.

17. Ms. Fleming received no notice of the October 11, 2001 hearing date.

|fi18. Ms. Fleming received no service or notice of the default judgment, because notice was sent to an address in Louisiana that Mr. Eldred knew to be out-dated.

19. Mr. Eldred initiated the present suit on April 26, 2002, by filing his petition to domesticate the California default judgment.

20. The domesticated Judgment was signed that same day, April 26, 2002.

21. Mr. Eldred’s petition misstated her address as 621 Governor Nicholls, although she has never resided at that address.

22. Ms. Fleming never received service of the petition or the subsequent domesticated judgment, and discovered the existence of the domesticated judgment while perusing the public record.

23. On August 20, 2007, she filed her amended petition and/or reconventional demand alleging that the California default judgment and the domesticated judgment *437are absolutely null for lack of *in personam*jurisdiction.

Ms. Fleming attached to her affidavit the following documents: (1) copy of Mr. Eldred’s California petition against Mr. Resnic, Ms. Fleming and twenty “Does”; (2) copy of Ms. Fleming’s motion to quash service for lack of *in personam*jurisdiction, filed by special and limited appearance in the California court; (3) copy of Ms. Fleming’s memorandum in support of her motion to quash service; (4) copy of Mr. Eldred’s request for entry of default dated November 28, 2000; (5) copy of the California default judgment; (6) copy of Mr. Eldred’s petition to make the foreign judgment executory in Louisiana; (7) copy of the domesticated judgment rendered on April 26, 2002; (8) certificate of service showing that the default judgment was mailed to Ms. Fleming at “821 Governor Nichols [sic] Street, New Orleans, LA 70116,” on August 9, 2001, by regular United States mail; (9) 17copy of California default judgment rendered in favor of Mr. Eldred and against Mr. Resnic and Ms. Fleming in the amount of $24,900.00, with proof of service of the judgment by regular United States mail on November 1, 2001; (10) CDC clerk’s certificate indicating that the petition in No.2002-6743 was mailed by Certified United States mail to Ms. Fleming at 621 Governor Nicholls Street in New Orleans, together with the envelope indicating that it was “not deliverable as addressed, unable for forward.”

Mr. Eldred filed his affidavit in opposition to Ms. Fleming’s motion for summary judgment. Mr. Eldred averred that:

1.He and a companion viewed South-ernComforts.com, a website operated by Mr. Resnic, and became interested in a property listing at 823 Governor Nicholls Street in New Orleans.

2. Mr. Resnic sent an e-mail to his companion on March 31, 2000, indicating the availability of the Property, having confirmed with the owner, Sally Fleming.

3. Upon arriving at the Property, Mr. Eldred and his companion found it was still under construction and/or renovation, and were both greeted and advised by Ms. Fleming to spend one or two nights in a small upstairs apartment to give her the opportunity to complete the work on the unit that was rented.

4. At no time did Ms. Fleming indicate that she had not authorized the offering of the unit for rental by Mr. Resnic on his website, nor did she ever deny having authorized the rental of this particular unit to Mr. Eldred.4

Mr. Eldred submitted the following statement of material facts that he claims are in dispute:

IrI. That Mr. Resnic operated as the agent of Ms. Fleming and was not an independent actor based upon her oral agreement with Mr. Resnic allowing him to list the Property for rent on his website;

2. Whether or not the California Court set a hearing date for the Motion to Quash filed by Ms. Fleming;

3. That Ms. Fleming authorized Mr. Resnic to confirm the approval of the lease agreement with Mr. Eldred.

It is clear and undisputed that although Ms. Fleming filed a motion to quash service for lack of *in personam*jurisdiction in the California proceeding, the hearing on that motion, purportedly set for November 7, 2001 was never held. Although the California court rendered a default judg-*438merit on October 11, 2001, Ms. Fleming heard no more from either Mr. Eldred or the California court. Six months after rendition of the default judgment, Mr. El-dred sought to enforce the California judgment in this State, but used an incorrect address to obtain service on Ms. Fleming. We note that his affidavit does not dispute Ms. Fleming’s assertion that he intentionally directed service to an address he knew was incorrect. Ms. Fleming therefore had no knowledge of the default judgment or its domestication hearing, and learned of the California judgment and the Louisiana domesticated judgment by happenstance.

We find two valid bases for the trial court’s summary judgment. First, this Court’s prior ruling in No.2008-C-0233 on this Court’s docket is the law of the case and precludes our reconsideration of those issues on subsequent appeal. *Reed v. St. Charles General Hosp.,*pp. 9-10, 08-430, 08-431, 08-570, 08-572, 08-573 (La.App. 4 Cir. 5/6/09), 11 So.3d 1138, 1145-46, *writ denied,*09-1252 (La.9/18/09), 17 So.3d 979. The law of the case doctrine applies to decisions on writ ^applications as well as to judgments rendered on sus-pensive or devolutive appeals. Second, the trial court’s finding, as a matter of law, that the California court lacked *in person-am*jurisdiction over Ms. Fleming is clearly correct. The party seeking to invoke *in personam*jurisdiction, Mr. Eldred in this case, bears the burden of establishing the existence of such jurisdiction. In Mr. El-dred’s petition, filed in the California proceeding, he alleged that Ms. Fleming was a Louisiana resident and that Mr. Resnie was a California resident. He asserted a breach of contract claim based on an alleged oral agreement he entered into in April of 2000 with Mr. Resnie, who, he alleged, acted as Ms. Fleming’s agent, to rent the Property for one month.

Ms. Fleming admits that she was served personally with the petition in the California suit, but notes that she was not served with the California default judgment or the petition to domesticate that judgment in Louisiana. Furthermore, prior to entry of the default judgment, Ms. Fleming filed a motion in the California court to quash service, noting the jurisdictional defect. In her supporting memorandum, Ms. Fleming advised the California court that Mr. Eldred apparently learned of the Property through a promotion Mr. Resnie transmitted on the internet, and noted that California lacked an interest in the rental dispute among the parties.

In California, as in Louisiana, the exercise of *in personam*jurisdiction must be consistent with the due process safeguards provided in the state and federal constitutions. *Shisler v. Sanfer Sports Cars, Inc.,*146 Cal.App.4th 1254, 1258, 53 Cal.Rptr.3d 335, 337 (Cal.App. 6 Dist.2006), citing *Pavlovich v. Superior Court,*29 Cal.App.4th 262, 268, 127 Cal.Rptr.2d 329, 58 P.3d 2 (2002). Constitutional due process permits a court to exercise *in per-sonam*jurisdiction over a foreign defendant in Ms. Fleming’s position when: (1) the defendant 110purposely has availed herself of the benefits and protections of the forum state by establishing minimum contacts with that state; and (2) the exercise of jurisdiction over the defendant will not offend traditional notions of fair play and substantial justice. *International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement,*326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). Sufficient minimum contacts will give rise to either specific or general jurisdiction. *Revell v. Lidov,*317 F.3d 467, 470 (5th Cir.2002). The determination of whether specific or general jurisdiction exists is based on the nature and quality of the foreign defendant’s contacts with the *439forum state. *Shisler v. Sanfer Sports Cars, Inc., supra,*146 Cal.App.4th at 1258-59, 53 Cal.Rptr.3d at 337.

General jurisdiction is based on a foreign defendant’s “continuous and systematic” contacts with the forum state. *Revell v. Lidov, supra.*In this case, it is apparent that Ms. Fleming’s contact with California was neither continuous nor systematic. It is undisputed that she never lived in, worked in, or owned or operated a business in California. Therefore, general *in personam*jurisdiction over Ms. Fleming would not meet the constitutional due process standard.

Specific jurisdiction may exist when all of the following factors are present: (1) Ms. Fleming, as a foreign defendant, has performed some act or consummated some transaction within California or otherwise purposefully availed herself of the privileges of conducting activities in California, and (2) the claim arises out of or results from her forum-related activities, and (3) the exercise of jurisdiction is reasonable. *See Bancroft & Masters, Inc. v. Augusta Nat. Inc.,*223 F.3d 1082, 1086 (9th Cir.2000); *see also Pavlovich v. Superior Court, supra.*The sole contacts alleged to support a finding of specific jurisdiction in the instant case are Mr. Resnic’s action in placing the Property on his passive website and his actions Inin contracting, perhaps with Mr. Eldred’s companion, as Ms. Fleming’s alleged agent, for the rental of the Property.

In addressing the unique circumstances presented by a foreign defendant’s transaction of business over the Internet, the courts of Louisiana and California have applied the sliding scale standard enunciated in *Zippo Mfg. Co. v. Zippo Dot Com, Inc.,*952 F.Supp. 1119, 1123-24 (W.D.Pa.1997). *See Swoboda v. Hero Decks,*09-1303 (La.App. 4 Cir. 3/31/10), 36 So.3d 994, *unit denied*10-0993 (La.6/25/10), 38 So.3d 346 and *Shisler v. Sanfer Sports Cars, Inc., supra.*The *Zippo*standard was summarized in *Mink v. AAAA Development LLC,*190 F.3d 333, 336 (5th Cir.1999):

> At one end of the spectrum, there are situations where a defendant clearly does business over the Internet by entering into contracts with residents of other states which “involve the knowing and repeated transmission of computer files over the Internet.” ... In this situation, personal jurisdiction is proper.... At the other end of the spectrum, there are situations where a defendant merely establishes a passive website that does nothing more than advertise on the Internet. With passive websites, personal jurisdiction is not appropriate. In the middle of the spectrum, there are situations where a defendant has a website that allows a user to exchange information with a host computer.... In this middle ground, “the exercise of jurisdiction is determined by the level of interactivity and commercial nature of the exchange of information that occurs on the Website.” [Citations omitted.]

In the instant case, Mr. Resnic operated a passive website that merely advertised on the Internet. Given the passive nature of the website, we cannot conclude that Mr. Eldred’s viewing of that website from his computer in California supports the exercise of specific *in personam*jurisdiction over Ms. Fleming.

Alternatively, Mr. Eldred argues that Mr. Resnic acted in California as Ms. Fleming’s agent, making her amenable to specific *in personam*jurisdiction in that 112state. In order to establish such a basis for jurisdiction, Mr. Eldred is required to advance some evidence to support the contention of agency that he claims in the pleadings. Absent such evidence, the ac*440tion is subject to dismissal. 1 Robert C. Casad and William M. Richman, *Jurisdiction in Civil Actions*§ 4 — 3[l][a] (3d ed.1998). A close reading of Mr. Eldred’s affidavit discloses no evidence upon which to base a finding that Mr. Resnic was Ms. Fleming’s agent. He offers only a conelu-sory statement that Ms. Fleming did not deny an agency relationship. However, he did not offer any proof of the scope of Mr. Resnic’s alleged authority. The e-mail message Mr. Eldred submitted was sent by Mr. Resnic to Mr. Eldred’s companion. Neither Mr. Eldred nor Ms. Fleming was a party to the message. Ms. Fleming points out in her affidavit that not only did she not authorize Mr. Resnic to act as her agent and to contract on her behalf, he acted as a passive advertiser only, and was not given authority to transact affairs on her behalf. Based on the evidence of record, there is no doubt that Ms. Fleming’s alleged activity does not rise to the level of purposeful availment of California law. To compel Ms. Fleming to submit to the jurisdiction of California, under the facts of record, would violate her constitutional due process rights.

Because Mr. Eldred’s evidence does not support the conclusion that there exists a genuine issue of material fact as to the jurisdictional issue, we are compelled to conclude that summary judgment in favor of Ms. Fleming is appropriate and legally supported. For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., Dissents and Assigns Reasons.

1

.Mr. Eldred’s name appears in the record at times as Lanston Eldred. We have used the spelling found in his petition in CDC No. 02-6743.

2

*.The*trial court issued its Reasons for Judgment on February 13, 2008, and these were entered on the court minutes on February 14, 2008.

3

*. Eldred v. Fleming,*08-0233 (La.App. 4 Cir. *4353/24/08), *unpub.*

4

. We note that Mr. Eldred did not offer any positive evidence that Ms. Fleming did authorize Mr. Resnic to offer the unit for rental, or authorize the rental of this particular unit to Mr. Eldred.

TOBIAS, J.,

Dissents and Assigns Reasons.

hi respectfully dissent. For the reasons that follow, I would reverse the granting of summary judgment for in my view the record on appeal discloses genuine issues of material facts that are presently unknown and affect the outcome. (In the following, I have underlined some of those facts that I find create those genuine issues of material fact and have cited relevant law, primarily in footnotes.)

In early 2000, Ms. Fleming owned property located in the French Quarter of New Orleans bearing the municipal address of 821-823 Governor Nicholls Street (hereinafter “the property”), consisting of an upstairs and downstairs unit. In order to finance the renovation of one of the units, Ms. Fleming made inquiries into leasing the property for limited stays to third parties. She contacted a number of people who might be able to help her.

1 ?One of these people was Daniel Resnic, an *apparent*resident of California. *Ms. Fleming showed him the property and orally*agreed1 to allow Mr. Resnic, among others, to advertise the property on a passive website that he maintained. Ms. Fleming claims to have had a non-exclusive relationship with Mr. Resnic while she attempted to solicit renters from other sources.

In March 2000, *Shannon Lee Abraham, a companion of Mr. Eldred,**2**contacted Mr. Resnic and offered to lease Ms. Fleming’s unit*for the month of May 2000, with a fifty percent deposit and the balance to be paid on arrival. *Mr. Resnic contacted Ms. Fleming who approved the rental agreement*between herself and Ms. Abra*441ham. *Ms. Abraham paid, the full amount for the lease to Mr. Resnic*who told Ms. Fleming that he had deposited the funds in her account. However, Ms. Fleming never received any of the money from Mr. Resnic or for that matter from Mr. Eldred.

Although Mr. Resnic kept the money from Ms. Abraham, *Ms. Fleming allowed Mr. Eldred and Ms. Abraham stay on the property**3***After approximately nine days, Mr. Eldred became dissatisfied with the accommodations. On the evening of 9 May 2000, Mr. Eldred elected to leave the property for another place to rent; he and Ms. Fleming parted on amicable terms. With the understanding that they were both victims of Mr. Resnic, Mr. Eldred gave Ms. Fleming a check for |3$75.00 to defray the costs of utilities used during his stay; this was the only money ever received by Ms. Fleming relating to the whole transaction.

On 6 October 2000, Mr. Eldred filed a lawsuit for damages in California against Mr. Resnic and Ms. Fleming (the “California case”). *Mr. Eldred alleged that Mr. Resnic acted as Ms. Fleming’s agent,*thereby rendering Ms. Fleming subject to jurisdiction in a California court. *No evidence in the record before us establishes that this suit was ever served*upon Ms. Fleming or Mr. Resnic.

Ms. Fleming opposed personal jurisdiction by filing a motion to quash service for lack of personal jurisdiction and a memorandum of law in support thereof on or about 22 August 2001, which was allegedly set for hearing on 7 November 2001.4 The motion to quash and attached memorandum contains a *certificate of service evidencing that they were both served by mail on both Mr. Resnic and Mr. Eldred’s California counsel of record,*Joe McMillin, and by *email*on Mr. McMillin. The record before of us reflects that a copy of a *“proposed ” default judgment was mailed to Mr. Resnic and Ms. Fleming on 1 November 2001;*however, the “proof of service” reflects that Ms. Fleming’s copy was mailed to “821 Governor Nichols Street,”5 not 2 Canal Street, Suite 2430, New Orleans, which was the address given by her in the motion to quash and memorandum filed in the California case. However, the hearing did not take place as Mr. Eldred | *¿obtained a default judgment (the “California judgment’’) in the California case on that November day.*Mr. Eldred, an attorney, claimed damages of $25,000.00 for his inability to work while he was vacationing in New Orleans and was awarded $24,900.00 by the judgment.

On 26 April 2002, Mr. Eldred filed a petition in the Civil District Court for the Parish of Orleans to make the California judgment executory in Louisiana. The trial court entered judgment in Mr. Eldred’s favor the same day (the “domesticated judgment”). The record before us contains a certificate of a deputy clerk of the Civil District Court that a notice of the filing of a petition to enforce a foreign judgment was mailed by certified mail to Ms. Fleming at “621 Governor Nicholls Street New Orleans, La. 70116;” where anyone got an address of 621 Governor Nicholls Street is unknown, and *no evidence exists before us whether Ms. Flem**442*ing ever maintained a mailing address at that location.*

In late August 2002, Ms. Fleming first became aware of the California judgment and domesticated judgment. She filed a petition to declare the foreign judgment null for lack of personal jurisdiction, to nullify the domesticated judgment on the basis of fraud or ill practices, and for damages (“original petition”). The original petition alleged that both the California judgment and domesticated judgment were absolutely null for two reasons: (1) lack of personal jurisdiction pursuant to La. C.C.P. art. 2002 and in violation of the Due Process Clause of the United States Constitution; and, (2) both judgments were secured through fraud or ill-practices, pursuant to La. C.C.P. art. 2004 A.

|fiMr. Eldred responded with a dilatory exception of improper cumulation of actions to Ms. Fleming’s original petition, arguing that it should be dismissed for improperly cumulating Ms. Fleming’s claim of nullity on the basis of fraud or ill-practices (requiring an ordinary proceeding) with the petition to make judgment executory (a summary proceeding). The trial court granted Mr. Eldred’s dilatory exception on 20 July 2007, but instead of dismissing Ms. Fleming’s original petition, Ms. Fleming was allowed to sever her claims for relative nullity and damages by amending her original petition. She was also granted leave of court to bring these claims in a new proceeding within thirty (30) days.

Ms. Fleming timely complied with the court’s order by submitting two pleadings: (1) a petition for relative nullity, damages, and attorney’s fees, encompassing the severed claims for relative nullity and damages; and, (2) an amended petition and/or reconventional demand and third party demand to declare the foreign judgment null for lack of personal jurisdiction, containing only claims for absolute nullity.

After Ms. Fleming filed her new pleadings, Mr. Eldred filed an exception of lack of subject matter jurisdiction as well as exceptions of lack of jurisdiction and prescription. The two separate cases were eventually consolidated.

The trial court heard Mr. Eldred’s exceptions on 4 January 2008. The court denied Mr. Eldred’s exceptions in open court and issued written judgments on 8 January 2008. In written reasons, the trial court found that “Fleming’s amended | ^petition clearly alleges lack of personal jurisdiction, which is an absolute nullity under Louisiana law.”

Mr. Eldred filed an application for supervisory review with this court, seeking judicial review of the ruling. This *court denied the writ*application, finding no error by the trial court’s judgment.

On 11 January 2010, Ms. Fleming filed a motion for summary judgment in which she alleged that no issue of material fact existed that she was ever subject to personal jurisdiction in California. Ms. Fleming submitted an affidavit in which she explained that Mr. Resnic was never given authority to act as her mandatary,6 nor did she have any connection to the state of California that would subject her to personal jurisdiction in that state. She explained that Mr. Resnic acted as a passive advertiser only; he was never given authority to transact affairs on her behalf.7

*443Mr. Eldred opposed the motion urging that, even if Mr. Resnic was not given actual authority to act as Ms. Fleming’s mandatary, *he possessed “apparent authority,”*although no evidence was submitted to support the allegation. The matter came for hearing on 26 February 2010. Following oral argument, the trial court granted Ms. Fleming’s motion; a written judgment was entered on 3 March 2010, granting summary judgment to Ms. Fleming. This timely appeal followed.

Because I am reviewing a motion for summary judgment, I apply the *de novo*standard of review.

|7Mr. Eldred assigned one error for our review. He alleged that the trial court erred in granting Ms. Fleming’s motion for summary judgment because she failed to establish a prima facie case and because genuine issues of material fact exist.

I first note, as did the trial court, that Ms. Fleming presented a case to establish absolute nullity on the basis of lack of personal jurisdiction.8 Further, a judgment that is absolutely null may be attacked in collateral proceedings in any court when based upon defects which appear on the face of the record.9

This court, whether requested to do so or not, must take *judicial notice*of the laws of the United States, of every state, territory, and other jurisdiction of the United States.10 Therefore, we must apply California law to determine whether the California judgment is absolutely null.

After reviewing the record before us, I find no evidence that either Ms. Fleming or Mr. Resnic were ever served with the original complaint filed by Mr. Eldred in California. West’s Ann.Cal.C.C.P. § 585(a) provides in pertinent part:

> Judgment may be had, if the defendant fails to answer the complaint, as follows:

> (a) In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has, or if more than one defendant, if any of the defendants have, been served, other than by publication, and no answer, demurrer, notice of motion to strike of the character specified in subdivision (f), notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section |s418.10, or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk of the court within the time specified in the summons, or within further time as may be allowed, the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for in Section 425.115, or a lesser amount if credit has been acknowledged, together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant, or defendants, or against one or more of the defendants. [Emphasis supplied.]

> I also note that West’s Ann.Cal.C.C.P.

§ 418.10 provides in pertinent part:

> *444(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:

> (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

> 

> (e) A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.

> (1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion.11 [Emphasis supplied.]

|flThe record reflects that the original California complaint was filed on 6 October 2000; I note that the complaint neither requested service against the defendants nor does the record contain any returns reflecting service of process. On 28 November 2000, Mr. Eldred requested that a default judgment be entered against Mr. Resnic. On or about 22 August 2001, Ms. Fleming filed the motion to quash; the record reflects that the motion was indeed filed and that a check in the amount of $50.00 was received. The motion was served on Mr. Eldred and his attorney by mail and further upon the attorney alone by facsimile transmission on 22 August 2001. *According to the record, the motion to quash was never ruled upon*by the California court. This precludes the entry of a default judgment against Ms. Fleming. *Nonetheless, the motion for default judgment was heard by the trial court on 11 October 2001;*the California judgment against both Ms. Fleming and Mr. Resnic was *entered*on 7 November 2001.12

I generally find no support in the record on appeal before us for the entirety of the following statements set forth in the majority opinion:

> • “Ms. Fleming received no notice of the October 11, 2001 hearing date.”

> • “Ms. Fleming received no service or notice of the default judgment, because notice was sent to an address in Louisiana that Mr. Eldred knew to be outdated.”

> |in* “We note that Mr. Eldred did not offer any positive evidence that Ms. Fleming did authorize Mr. Resnic to offer the unit for rental, or authorize the rental of this particular unit to Mr. Eldred.”

> • “First, this Court’s prior ruling in No.2008-C-0233 on this Court’s docket is the law of the case and precludes *445our reconsideration of those issues on subsequent appeal .... [citation omitted.] The law of the case doctrine applies to decisions on writ applications as well as to judgments rendered on suspensive or devolutive appeals.”13

> • “Second, the trial court’s finding, as matter of law, that the California court lacked *in personam*jurisdiction. over Ms. Fleming is clearly correct. The party seeking to invoke *in personam*jurisdiction, Mr. Eldred in this case, bears the burden of establishing the existence of such jurisdiction.”14

> • “Alternatively, Mr. Eldred argues that Mr. Resnic acted in California as Ms. Fleming’s agent, making her amenable to specific *in personam*jurisdiction in that state. In order to establish such a basis for jurisdiction, Mr. Eldred is required to advance some evidence to support |nthe contention of agency that he claims in the pleadings. Absent such evidence, the action is subject to dismissal.”15

While the record on appeal would *at first glance*tend to reflect that the California judgment is null based upon the defects which appear on the face of the record, I find that the *California record is incomplete,*thereby creating genuine issues of material fact. *Because Ms. Fleming filed the motion for summary judgment, it is her burden to show that no genuine issiie of material fact exists.*Thus, I find that we are required to reverse the trial court, set aside the judgment, and remand the matter to the court below for further proceedings.

By my position, I do not mean to imply that I do not think that Ms. Fleming will ultimately prevail when the matter is tried. My position is that given the law respect*446ing full faith and credit and our law on summary judgment, Ms. Fleming cannot prevail on her present motion for summary judgment. It would appear, although factual questions presently exist, that something irregular happened in a California court back in 2000-01.

1

. *See and review carefully,*La. C.C. arts. 2991, 2993, 2995, 2996, 3001, 3010, 3020, 3021, and 3022.

2

. It is unclear from the record on appeal how Ms. Abraham's actions gave Mr. Eldred a cause of action. It is unclear whether Ms. Abraham was Mr. Eldred’s agent.

3

. La. C.C. 1843. *See also*Footnote 1, *supra.*

4

. Ms. Fleming avers in her sworn affidavit, attached to the motion for summary judgment that *she called the clerk of court in California and was told that the hearing on her motion to quash was set for hearing on*7 *November 2001.*Nothing in the record either confirms or disputes this statement and we specifically note that Mr. Eldred's opposition to the motion for summary judgment contains no affidavit refuting this assertion.

5

. I note the misspelling of “Nichols.”

6

. It appears that neither party can presently locate Mr. Resnic. Ergo, we do not know what his version of the facts is. For that matter, we do not know whether he testified at the hearing forming the basis for the California default judgment,

7

. *See*footnote 5 above.

8

. *Franz v. Franz,*315 So.2d 79, 80-81 (La.App. 4th Cir. 1975).

9

. *Id.*

10

. La. C.E. art. 202(A).

11

. West’s Ann.Cal.C.C.P. § 1014 defines "an appearance” as an answers, demur, notice of motion to strike, notice of motion to transfer, motion for reclassification, written notice of appearance, or when an attorney gives notice of appearance for the defendant.

12

. I note that the California Rules of Professional Conduct, Rule 5-200(B) prohibits an attorney from seeking to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law. Both Mr. Eldred, an attorney, and his counsel, knew or should have known that Ms. Fleming had filed a motion to quash that should have been ruled upon before the default judgment was taken. However, without the entire California record, I cannot say whether they violated this rule.

13

.The denial of a writ application is only a decision not to exercise the court’s extraordinary powers of supervisory jurisdiction. *Davis v. Jazz Casino Co, L.L.C,*03-0276, 03-122, p. 1 (La.6/6/03), 849 So.2d 497, 498; *Tolis v. Board of Supervisors of Louisiana State University,*95-1529 (La.10/16/95), 660 So.2d 1206, 1207; *Sattar v. Aetna Life Ins. Co.,*95-1108, pp. 3-4 (La.App. 4 Cir. 3/20/96), 671 So.2d 550, 552; *Cotton v. Gaylord Container,*96-1958, 96-2029, 96-2049, p. 5 (La.App. 1 Cir. 3/27/97), 691 So.2d 760, 763-64. In *Bulot v. Intracoastal Tubular Services, Inc.,*02-1035 (La.6/14/02), 817 So.2d 1149, the Supreme Court held that once a court of appeal declines to exercise its supervisory jurisdiction by denying the writ, the court was without jurisdiction to affirm, reverse, or modify the judgment of the trial court. Thus, any language in the court of appeal's earlier writ denial purporting to find no error in the trial court’s certification ruling is without effect. *Davis,*p. 1, 849 So.2d at 498. Although an appellate court could be precluded from addressing an issue previously addressed by that appellate court under the law of the case doctrine, the doctrine is not an absolute bar to reconsideration being discretionary with the appellate court. *Id.; Tolis, supra; Bulot, supra.*

14

. In the absence of the entire record of the California proceedings, especially the absence of the hearing transcripts, I find no authority justifying this statement.

15

. Among other things, in the absence of the transcript of what occurred in court when Mr. Eldred obtained his California judgment, I find no evidence from anyone supporting or refuting the statement. Under the United States Constitution, we are required to give full faith and credit to a judgment of a sister state unless the foreign forum lacked jurisdiction over the litigants or over the subject matter involved in the controversy. U.S. Const, art. IV, § 1; *Magnolia Petroleum Co. v. Hunt,*320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943). A presumption exists that a judgment of a sister state is valid and rendered on appropriate evidence. *Winston v. Millaud,*05-0338, p. 9 (La.App. 4 Cir. 4/12/06), 930 So.2d 144, 151, citing *Navarrette v. Laughlin,*209 La. 417, 24 So.2d 672 (1946)1; *Holiday Hospitality Franchising Inc. v. Grant,*p. 5 (La.App. 2 Cir. 5/8/02), 817 So.2d 449, 452. We have no hard evidence to show to the contrary.