Meribear Productions, Inc. v. Frank

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MERIBEAR PRODUCTIONS, INC. v. FRANK—CONCURRENCE AND
DISSENT
D’AURIA, J., with whom MULLINS, J., joins, concur-
ring in part and dissenting in part. I agree with parts II
and III of the majority opinion, specifically, the court’s
determinations that the contract at issue was not a
‘‘home solicitation sale’’ within the meaning of General
Statutes § 42-134a (a) (5) and that the trial court’s award
of damages was proper. I respectfully dissent, however,
from part I of the majority opinion, which holds that
the state court in California had personal jurisdiction
over the defendant George A. Frank on the basis of
the application of California law and, specifically, the
‘‘closely related’’ doctrine. I do not believe it is prudent
for us to consider and decide the issue of personal
jurisdiction on the basis of a theory that the plaintiff
did not advance, either in the trial court or before this
court. If the court is unable to uphold the trial court’s
determination of personal jurisdiction over George
Frank in California on the basis of the factual record
developed and the legal theory the plaintiff has argued,
I would end the inquiry and reverse the trial court’s
judgment as to George Frank on count one of the plain-
tiff’s complaint.
I agree completely that the full faith and credit clause
of the United States constitution governs an action to
enforce a foreign judgment in this state and requires
that we ‘‘accord to the judgment of another state the
same credit, validity and effect as the state that rendered
the judgment would give it. . . . This rule [is tempered
by] the proposition that lack of jurisdiction [in that
foreign court] renders a foreign judgment void.’’ (Cita-
tion omitted.) Packer Plastics, Inc. v. Laundon, 214
Conn. 52, 56, 570 A.2d 687 (1990). I also agree that ‘‘[t]he
party raising a jurisdictional claim as a defense against
the enforcement of a foreign judgment bears the burden
of proving, by a preponderance of the evidence, facts
that demonstrate that the foreign court lacked jurisdic-
tion.’’ (Internal quotation marks omitted.) Part I of the
majority opinion, quoting Maltas v. Maltas, 298 Conn.
354, 364 n.11, 2 A.3d 902 (2010). However, I am unaware
of authority holding that our full faith and credit obliga-
tion requires that we research and vindicate arguments
that the plaintiff has not made in support of the foreign
judgment.
The trial court in this case found that George Frank
had failed to carry his burden of demonstrating that
the California court lacked jurisdiction, rejecting his
argument that he did not consent to jurisdiction in Cali-
fornia because he was not a party to the ‘‘Staging Ser-
vices and Lease Agreement’’ (agreement) and, there-
fore, that the forum selection clause in the agreement
‘‘cannot form a proper basis for jurisdiction.’’ Rather,
the trial court found, on the basis of the factual record,
that George Frank had been properly served in Connect-
icut and had ‘‘signed a guarantee of the staging agree-
ment with a company [the plaintiff] that has a principal
place of business in California and that provides that
Los Angeles is the appropriate forum.’’ The trial court
therefore determined that the court in California had
personal jurisdiction over George Frank on the basis of
proper service of process and constitutionally sufficient
minimum contacts. George Frank originally appealed
from the trial court’s judgment nearly seven years ago.
This case has now been before this court twice and
before the Appellate Court once. In both courts, and
in all three appeals, the parties have briefed and argued
the issue of whether the court in California had personal
jurisdiction over George Frank in rendering a default
judgment against him on the terms that the trial court
addressed. See Meribear Productions, Inc. v. Frank,
328 Conn. 709, 714–15, 183 A.3d 1164 (2018); Meribear
Productions, Inc. v. Frank, 165 Conn. App. 305, 311–15,
140 A.3d 993 (2016). Specifically, George Frank has
consistently argued that he lacked sufficient minimum
contacts with California and that the assertion of per-
sonal jurisdiction over him in that state offended tradi-
tional notions of fair play and substantial justice, in
violation of the due process clause of the fourteenth
amendment to the United States constitution. See
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 105
S. Ct. 2174, 85 L. Ed. 2d 528 (1985) (‘‘an individual’s
contract with an out-of-state party alone [cannot] auto-
matically establish sufficient minimum contacts in the
other party’s home forum’’ (emphasis in original)). The
plaintiff has not raised any alternative ground to affirm
the trial court’s judgment against George Frank. See
Practice Book § 63-4 (a) (1) (A).
The majority declines to address the jurisdictional
question that both the trial court and the Appellate
Court decided, that George Frank and his wife, the
named defendant, Joan E. Frank, have challenged and
briefed on appeal, and that the plaintiff has responded
to in kind. Rather, the majority states: ‘‘We need not
address the defendants’ minimum contacts argument
because we conclude that George Frank consented to
personal jurisdiction in California.’’
In support of this conclusion, the majority has discov-
ered a different legal theory, which is based on Califor-
nia law, that, when applied to the factual record here,
the majority holds resulted in personal jurisdiction over
George Frank on the basis of consent, regardless of
whether he signed the agreement containing the forum
selection clause. Specifically, the majority applies Cali-
fornia’s ‘‘closely related’’ doctrine, an exception to the
general rule that a nonsignatory to a contract is not
bound by a forum selection clause contained in that
contract. See Berclain America Latina, S.A. de C.V. v.
Baan Co. N.V., 74 Cal. App. 4th 401, 405, 87 Cal. Rptr.
2d 745 (1999). Under the closely related doctrine, a
forum selection clause may be enforced against a non-
signatory who is ‘‘so closely involved in the agreement
or associated with a party to the transaction as to be
functionally equivalent to that party.’’ Id., 403; see also
Net2Phone, Inc. v. Superior Court, 109 Cal. App. 4th
583, 588, 135 Cal. Rptr. 2d 149 (2003), review denied,
California Supreme Court, Docket No. S117411 (August
27, 2003). Applying California law, the majority con-
cludes that George Frank was so ‘‘closely related’’ to
the agreement that he is bound by its forum selection
clause and, on the basis of this theory, concludes that
he therefore consented to personal jurisdiction in Cali-
fornia. In support of this conclusion, the majority cites
to the following facts: George Frank participated in
the negotiation of the agreement; he made substantive
changes to the agreement; he executed Addendum B,
a credit card authorization for payment of the staging
services; he was married to the agreement’s signatory,
Joan Frank; and he personally benefited from the agree-
ment.
Although the majority has ‘‘no trouble concluding
that [George Frank] received a direct benefit under the
agreement,’’ that is a finding that the trial court did not
make. Indeed, because the home at issue was only in
Joan Frank’s name and George Frank was not a signa-
tory to the agreement, any benefit George Frank derived
from using the furniture while he lived in the house
with her might be more aptly described as indirect.
Further, much of this indirect benefit stems from the
breach of the agreement, not the agreement itself. Nor
do I have the same confidence as the majority does
that, without the input of the parties, I know with any
certainty whether the closely related doctrine, which
has not been litigated in Connecticut, properly applies
to this case.1 In particular, I note that, in each of the
California cases cited by the majority, it was the defen-
dant who sought the protection of the forum selection
clause. See Net2Phone, Inc. v. Superior Court, supra,109 Cal. App. 4th 587; Bancomer, S. A. v. Superior
Court, 44 Cal. App. 4th 1450, 1461, 52 Cal. Rptr. 2d 435(1996); Lu v. Dryclean-U.S.A. of California, Inc., 11
Cal. App. 4th 1490, 1493–94, 14 Cal. Rptr. 2d 906 (1992).
Because the courts of California have not weighed in
on whether the closely related doctrine applies under
these facts, I hesitate to presume that it does.
But, even if I had confidence in the factual record or
in my own ability to determine and apply California
law, I would be disinclined to decide this civil case,
between two well represented parties, in the way the
majority does. Although the majority is correct that,
‘‘[i]n resolving a claim raised by the parties, we are not
required to constrain our analysis to the law relied on
by the parties’’; In re David B., 167 Conn. App. 428,
448 n.10, 142 A.3d 1277 (2016); I believe the court’s
resolution of this personal jurisdiction issue taxes the
limits of that latitude, although I would hasten to add
that reasonable minds can differ on this point. More
particularly, in addition to my concern that we might
be going beyond the confines of our adversarial system
in our discovery of an additional doctrine that supports
the plaintiff, I am at least equally concerned about cases
in which we do not summon a similar ingenuity to bring
a different approach to an issue that might arguably be
related to that which is under consideration. How will
we know when to do so and when not to?
To be sure, this is not an easy line to draw, and
appellate courts struggle mightily to do so with any
consistency. As the majority indicates, distinguishing
between ‘‘claims or issues’’ that the parties themselves
have not raised, on the one hand, and ‘‘arguments or
factors’’ pertaining to claims or issues they have raised,
on the other, can be challenging. See, e.g., Jobe v. Com-
missioner of Correction, 334 Conn. 636, 644 n.2, 224
A.3d 147 (2020); State v. Santiago, 318 Conn. 1, 124,
122 A.3d 1 (2015). Nor is it easy to determine whether
a legal argument is ‘‘subsumed within or intertwined
with arguments related to the legal claim’’ before the
court. (Internal quotation marks omitted.) Jobe v. Com-
missioner of Correction, supra, 644 n.2. The court’s
foray into California law not cited or argued by the
parties is too far for me in the present case, however,
and I would not reach the ground for upholding personal
jurisdiction over George Frank that the majority
reaches.
In my view, the majority’s determination not to affirm
on the ground on which the trial court decided the case
must mean the majority has grave doubts that it can
affirm on that ground. This to say that, if the court
believed it could affirm on the more straightforward
and conventional minimum contacts analysis that the
trial court found and the parties briefed, I doubt seri-
ously it would venture into California law. So, although
George Frank, in the majority’s view, was so ‘‘closely
related’’ to the agreement with the forum clause that
he is deemed to have consented to jurisdiction in Cali-
fornia, this close relationship to a contract with the
California plaintiff apparently falls short of establishing
minimum contacts, either by itself or in combination
with any other facts of record. For the purposes of
my opinion, I accept this implied determination that
personal jurisdiction over George Frank cannot consti-
tutionally be sustained and would stop there.
I therefore respectfully dissent as to the determina-
tion of personal jurisdiction over George Frank.
1
Nor do I consider this case a good candidate for seeking supplemental
briefing from the parties because the plaintiff has not sought to inject this
theory into the case. See, e.g., State v. Armadore, 338 Conn. 407, 419–20,
258 A.3d 601 (2021) (appellate courts have discretion to order supplemen-
tal briefing).