Hubert Verstichele v. Richard A. Marriner

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-354

HUBERT VERSTICHELE

VERSUS

RICHARD A. MARRINER

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2003-5735
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

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JOHN B. SCOFIELD
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and John B. Scofield, Judges.

AFFIRMED.

John H. Clegg
Benjamin Owen Schupp
643 Magazine St.
New Orleans, LA 70130
Counsel for Plaintiff-Appellant
Hubert Verstichele

James Buckner Doyle
930 Lakeshore Drive
Lake Charles, LA 70602-2142
Counsel for Defendant-Appellee
Richard A. Marriner

Rick Charles Normand
P. O. Box 3731
Lake Charles, LA 70602
Counsel for Defendant-Appellee
Richard A. Marriner

SCOFIELD, Judge*.

Plaintiff-Appellant, Hubert Verstichele, is a resident of Belgium and appeals

the trial court’s granting of Defendant’s Exception of No Right of Action.

Verstichele had obtained a Judgment against Richard A. Marriner, a resident of

Calcasieu Parish, Louisiana, in a Belgian court. Marriner’s Exception of No Right

of Action was granted by the trial court on the basis that the Belgian court had lacked

personal jurisdiction over Marriner. For the reasons set forth hereinafter, we affirm.

TRIAL COURT PROCEEDINGS

Verstichele filed an Ex Parte Petition in the Fourteenth Judicial District Court

seeking recognition of a Judgment rendered on June 28, 2000, by the court of the

First Instance in Gent, Belgium. Marriner, a resident of Calcasieu Parish, filed

several exceptions to the petition alleging lack of subject matter jurisdiction,

unauthorized use of summary proceedings, improper service and no right of action.

The exception of no right of action is based on the Belgian court’s lack of in

personam jurisdiction and subject matter jurisdiction.

An evidentiary hearing was held on November 19, 2003, resulting in the trial

court denying all of Marriner’s exceptions except the exception of no right of action,

the trial court finding that the Belgian court lacked personal jurisdiction over

Marriner. A formal judgment dismissing Verstichele’s lawsuit was signed by the trial

court on December 8, 2003. An Order of Devolutive Appeal was granted to

Verstichele on January 5, 2004.

*
John B. Scofield, participated in this decision by appointment of the Louisiana Supreme
Court as Judge Pro Tempore.

1

THE FACTS

Where a party seeks recognition by a Louisiana court of a foreign judgment,

the Louisiana court is limited in its ability to consider facts, especially those

pertaining to the merits of the underlying case. However, we will recite facts which

arguably bear on the merits, because for the most part, they are undisputed and their

recitation will assist in placing this matter into proper context. Moreover, where

personal jurisdiction is being challenged, facts pertaining to that issue may be

considered by our courts.

Marriner is a Lake Charles businessman, having for many years been the owner

of the Budweiser beer distributorship serving Southwest Louisiana. At some time

prior to December of 1981, more than likely in the late 1970's, Marriner was involved

in a venture promoting the sale of real estate in the state of Vermont. Through a

mutual friend, Marriner became acquainted with one Onno Kamerling, a businessman

from Holland. It seems that Marriner and Kamerling eventually reached a verbal

understanding that Kamerling would promote the sale of the Vermont property to

residents of Holland, although Kamerling was given no limitations on the place of

residence of those whom he was to promote. According to Marriner, Kamerling

thereafter brought several groups of Dutch citizens to the United States to inspect the

Vermont property.

At some point during the course of Marriner’s relationship with Kamerling,

they decided that Marriner would give Kamerling four blank, undated checks signed

by Marriner. The checks were drawn on an account of Marriner’s at the Chase

Manhattan Bank in New York. Marriner testified that he gave these checks to

Kamerling to provide Kamerling with “credibility” in promoting the Vermont real

2

estate venture. According to Marriner, the only understanding that he and Kamerling

had regarding the actual use of the checks was that Kamerling would obtain

Marriner’s approval before negotiating a check. Marriner testified that there was no

written document memorializing their agreement.2

In December of 1981, Marriner closed the Chase Manhattan Bank account

upon which the checks had been drawn. His relationship with Kamerling had ended

prior to the closure of the bank account.3

The record in this case contains some of the pleadings and documents filed in

or generated by the Belgian court proceedings. As best that can be determined from

these, Kamerling had borrowed a substantial sum of money from Verstichele in 1991.

In 1993, Kamerling and Verstichele signed an agreement whereby, as security for the

loan, Kamerling transferred to Verstichele one of the Marriner checks, that check

having been filled out payable to Kamerling in the sum of 435,000.00 Dutch florins.

This check is undated but the copy of it in the record indicates that an attempt to

negotiate it occurred in February of 1995.4 The bank refused payment because the

account had been closed years before.

Verstichele sued both Kamerling and Marriner in the Belgian court, the claim

against Marriner being based on the “security” given Verstichele by Kamerling in the

form of the Marriner check. Inexplicably, the Belgian proceedings took several years

to finalize, the final judgment having been rendered on June 28, 2000. The record

2
Marriner was the only person testifying in these proceedings, having testified live at the hearing as well as
having his pre-hearing deposition introduced into evidence.

3
Marriner testified that as some point prior to the closing of the bank account, two of the four checks given
Kamerling had been negotiated and cashed. Marriner could not recall when these checks were cashed and for what
purpose. He assumes that he must have given Kamerling his prior approval before these checks had been negotiated.

4
Another of the Marriner checks was filled out (presumably by Kamerling) payable to Kamerling dated March
1, 1995, in the sum of 300,000.00 U.S. dollars. However, it does not appear that this check was transferred to
Verstichele, nor has its collection been pursued, at least not in the proceedings under consideration here.

3

contains a document converting the amount of the judgment from Dutch florins into

U. S. dollars. The principal amount of the judgment is $210,140.50, together with

legal interest thereon from January 4, 1994 to August 31, 1996 at the rate of 8% per

annum, and thereafter at the rate of 7% per annum, until paid.

The record also shows that on January 30, 1997, service of process was

effected on Marriner by the United States Marshall’s office.4

As we have indicated, Marriner was the only person to testify. Other than the

Verstichele petition, the record is bare of any testimony, statement, affidavit,

deposition or any other expressions from either Kamerling or Verstichele. It is

Marriner’s undisputed testimony that he had only been to Belgium once, that being

in 1964 or 1965; that he never has done business in Belgium; that he has never owned

an interest in any property or business operating in Belgium; and that whatever

relationship he had had with Kamerling, it came to an end at some time prior to

December of 1981, when the Chase Manhattan Bank account was closed.

LAW AND DISCUSSION

THE LAW TO BE APPLIED IN DETERMINING JURISDICTION

Neither party has favored this court or the trial court with the law of Belgium

setting forth the legal requisites in that country to establish personal jurisdiction. In

presenting oral arguments to the Louisiana trial court, counsel for Verstichele

conceded that the court could apply the law of Louisiana in determining whether the

Belgian Court had personal jurisdiction over Marriner.

Louisiana law provides that where the jurisdictional law of a foreign state may

4
The record is not clear why legal interest began to run against Marriner from July 4, 1994, given that service
was not effected upon him until January 30, 1997. Apparently, the beginning of the running of legal interest was
somehow tied to the date when Kamerling transferred to Verstichele any claims Kamerling might have had against
Marriner.

4

be applicable in determining the jurisdiction of a court in such foreign state, and that

law is not presented to the court by a party, the court may presume that the law of

Louisiana is applicable.

The law utilized to determine whether the foreign court had
jurisdiction is the law of the forum state rendering the original judgment.
However, where a party contends that the law of the foreign state applies
but does not introduce or demonstrate what the law of that state is with
respect to the relevant issued, it is presumed that the law of the foreign
state on the questioned point is the same as the existing law of
Louisiana.

State v. Konkle, 03-512, p. 5 (La.App. 3 Cir. 11/12/03), 865 So2d. 808, 813, writ

denied, 866 So.2d 818 (La. 2/20/04), citing Holden v. Holden, 374 So.2d 749

(La.App. 3 Cir. 1979). Accordingly, we will apply Louisiana law in determining

whether the Belgian court had personal jurisdiction over Marriner.

JURISDICTION AS A DEFENSE

Louisiana law provides as a valid defense to an action to recognize a foreign

judgment, the lack of jurisdiction of the foreign court to render such a judgment. A

foreign court, therefore, must have had both substantive jurisdiction and personal

jurisdiction.

Here, the trial court found that the Belgian court had substantive jurisdiction.

That holding by the trial court has not been appealed. Therefore, it is final and will

not be considered by this court.

Although Verstichele has appealed the trial court’s finding that the Belgian

court lacked in personam jurisdiction of Marriner, Verstichele does not dispute that

lack of personal jurisdiction can be a valid defense to making a foreign judgment

executory in Louisiana. The law plainly provides that for a foreign judgment to be

recognized and made executory in Louisiana, the foreign court rendering such

5

judgment must have had personal jurisdiction over the judgment debtor. See Konkle,

865 So.2d 808; Schultz v. Doyle, 00-0926 (La. 1/17/01), 776 So.2d 1158; Holiday

Hospitality Franchising, Inc. v. Grant, 38,103 (La.App. 2 Cir. 1/28/04), 865 So.2d

257, writ denied, 04-0501 (La. 4/8/04), 870 So.2d 275.

Although Verstichele does not dispute this principal of law, he contends that

one attacking a foreign judgment on the basis of the lack of personal jurisdiction has

the burden of proving this and that Marriner has failed to satisfy this burden.

PERSONAL JURISDICTION

There is no evidence that Marriner purposefully directed his own activities at

residents of Belgium to the extent necessary to subject himself to the jurisdiction of

the courts of that country. As stated above, other than visiting Belgium in the year

1964 or 1965, Marriner had made no personal contacts in Belgium which would

subject him to the jurisdiction of the courts of that country. Clearly, Marriner’s own

activities in Belgium failed to satisfy the minimum contact aspect of the due process

clause.

When a state seeks to assert specific jurisdiction over a defendant, the
minimum contracts prong of the due process analysis is satisfied ‘if the
defendant has purposefully directed his activities at residents of the
forum.’ de Reyes v. Marine Management and Consulting, Ltd., 586
So.2d 103, 106 (La. 1991) citing Keeton v. Hustler Magazine, Inc. 465
U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 7980 (1984). According to the de
Reyes decision, this rule ‘ensures that [the defendant] will not be haled
into a jurisdiction solely as a result of a random, fortuitous or attenuated
contact, ro by the unilateral activity of another party or a third person.’
586 So.2d at 106. However, a non-resident defendant is considered to
have minimum contacts with the forum state for purposes of general
jurisdiction only if it engages in ‘continuous and systematic activities’
in the forum. Id. at 108. Thus, this court has held that ‘much more
substantial contacts with the forum state are required to establish
general, as opposed to specific, jurisdiction.’ Bosarge v. Master Mike,
Inc. 95-0986, p. 3 (La.App. 4 Cir. 1/31/96), 669 So.2d 510, 512, writ
denied, 95-0397 (La. 3/22/96), 669 So.2d 1214. In fact, the contracts
must be ‘so substantial and of such a nature as to justify suit against it

6

on causes of action arising from dealings entirely distinct from those
activities.’ International Shoe Co. 326 U.S. at 318, 66 S.Ct. at 159 90
L.Ed. at 95.

Tulane Industrial Laundry, Inc. v. Quality Lube & Oil, Inc. 00-0610, p. 3 (La.App.

4 Cir. 1/24/01), 779 So.2d 99, 101-02. See also A.O. Smith Corp. v. American

Alternative Ins. Corp. 00-2485 (La.App. 4 Cir. 12/27/00), 778 So.2d 615, writ denied,

787 So.2d 321 (La. 3/23/01).

Indeed, Verstichele does not contest the trial court’s ruling on the basis of

Marriner’s own personal contacts in Belgium, but rather contends that the jurisdiction

over Marriner was established through Marriner’s agent, Kamerling. The focus of

Verstichele’s appeal is that Marriner had sufficiently clothed Kamerling with the

authority to be Marriner’s agent in Belgium and thereby subjected Marriner to the

jurisdiction of the Belgian courts. In essence, Verstichele argues that when Marriner

gave Kamerling the signed, blank checks to be used to promote Marriner’s interests,

Marriner had made Kamerling his agent. Verstichele adds that Marriner imposed no

restrictions on when the checks could be used by Kamerling or where the checks

could be used. Verstichele asserts that by not prohibiting Kamerling from using the

checks in Belgium, Marriner authorized it. As to Marriner’s testimony that

Kamerling was instructed not to negotiate a check without first obtaining Marriner’s

permission, Verstichele asserts that this restriction was not known to Verstichele and,

therefore, was not binding on him.

Beyond Kamerling’s being given the authority to promote land sales in

Vermont in the late 1970's or early 1980's, there is no proof of any express agency

relationship between Marriner and Kamerling. There was no actual authority given

Kamerling to use a check in a Belgian transaction, much less one involving a loan

7

in the mid 1990's from Verstichele to Kamerling. There was no manifestation from

Marriner to Kamerling that Kamerling had such authority. Verstichele argues,

however, that based on his dealings with Kamerling there was apparent authority for

Kamerling to bind Marriner.

Verstichele is correct that as a general rule, the party attacking the validity of

a foreign judgment on the basis of the lack of jurisdiction, has the burden of proving

the absence of such jurisdiction. However, when a party pegs personal jurisdiction

on the basis of an apparent agency relationship, the burden of proving such a

perceived agency relationship is on the party attempting to bind the principal.

An agency relationship is never presumed; it must be clearly
established. Fleet Finance, Inc. v. Loan Arranger, Inc., 604 So.2d 656,
658, (La.App. 1st Cir. 1992); Duplessis Cadillac, Inc. v. Creative Credit
Services, Inc., 564 So.2d at 338. The burden of proving apparent
authority is on the party seeking to bind the principal. A third party may
not blindly rely on the assertions of an agent, but has a duty to
determine, at his peril, whether the agency purportedly granted by the
principal permits the proposed act by the agent. Desormeaux v.
Lalonde, 578 So.2d 226, 230 (La.App. 3rd Cir.), writs denied, 581
So.2d 705 and 706 (La.1991); Duplessis Cadillac, Inc., v. Creative
Credit Services, Inc., 564 So.2d at 339. One must look from the
viewpoint of the third party to determine whether an apparent agency
has been created. AAA Tire & Export , Inc. v. Big Chief Truck Lines,
Inc., 385 So.2d 426, 429 (La.App. 1st Cir. 1980). A trial court’s
determination as to whether an apparent agency exists will not be
reversed in the absence of manifest error. See Boulos v. Morrison, 503
So.2d at 3.

Cartinez v. Reliable Amusement Co., Inc., 99-333, p. 8 (La.App. 3 Cir. 11/3/99), 746

So.2d 246, 251, writ denied, 754 So. 2d 235 (La. 2/4/00), quoting with favor from

Barrilleaux v. Franklin Foundation Hospital, 683 So.2d 348, (La.App. 1 Cir. 1996),

writ denied, 686 So.2d 864 (La. 1/24/97). See also McManus v. Southern United

Fire Ins., et al, 00-1456 (La.App. 3 Cir. 3/21/01), 801 So.2d 392.

As already stated, the evidence of the existence of an actual agency relationship

8

between Kamerling and Marriner in the mid 1990's is non-existent. For some reason,

Kamerling held on to the check in question for many years after his relationship with

Marriner had ended. The undisputed evidence is that the connection between

Marriner and Kamerling had ended at some time prior to the closing of the bank

account in 1981. The property venture in Vermont, the sole purpose for issuance of

the checks, had ended prior to 1981 as well. There can be no question that by 1993,

when Kamerling agreed to transfer to Verstichele his rights against Marriner, and in

1995 when there was an attempt to negotiate the check in question, Kamerling knew

full well he was not acting under any imprimatur from Marriner. Inescapably, one

would have to conclude just the opposite, i.e., that Kamerling’s actions were a blatant

fraud against the interests of Marriner.

Nevertheless, in analyzing the possibility of an apparent agency relationship,

we must view the issue from the perspective of the person allegedly relying on the

agency. Here, that would be Verstichele. In this task, we are not favored with any

testimony from Verstichele. His presence has been conspicuously absent in these

proceedings. We must examine what evidence is available to us to determine if

Verstichele could have legitimately believed that in 1993, or 1995, Kamerling was

the Belgian agent of Marriner.

The record reflects the only indicia known to Verstichele of any sort of

connection between Kamerling and Marriner, was the check which Kamerling had

provided to Verstichele. It is assumed that Kamerling verbally explained to

Verstichele why Kamerling possessed the check and how Marriner might fit into the

picture. But the record is silent on what Kamerling may have told Verstichele. We

are left, therefore, with the only evidence of an agency arrangement between Marriner

9

and Kamerling being the check in question and Kamerling’s possession of it. We find

the following factors to be important in determining whether Verstichele fulfilled his

duty to find out if there were an apparent agency relationship between Marriner and

Kamerling:

!The check in question, payable to “Mr. Kamerling Onno” in the sum of

435,000.00 Dutch florins, is undated, and there is no evidence of how Verstichele

reacted to this potentially troubling oversight.

!There is no evidence that Verstichele made any inquiry to learn why

Kamerling possessed this check and how he came into possession of it.

!Verstichele was presented with no written document spelling out any

relationship between Kamerling and Marriner.

!There is no evidence that Verstichele attempted to contact Marriner to

confirm that Kamerling was legitimately in possession of the check.

!There is no evidence that Verstichele contacted Chase Manhattan Bank to

determine if the check could be negotiated. It is quite apparent that Verstichele made

no such contact with the bank because if he had, he would have learned that the

account upon which the check had been drawn had been closed for more than a

decade.

It is plain that Verstichele did absolutely nothing to verify the so-called agency

relationship. “A third party may not blindly rely on the assertions of an agent, but has

a duty to determine, at his peril, whether the agency purportedly granted by the

principal permits the purposed act by the agent.” Cartinez, 746 So.2d at 246. The

lack of evidence showing that Verstichele took any initiative to verify the validity of

this most unusual use of the Marriner check might even suggest that Verstichele was

10

a knowing party to the scam perpetrated by Kamerling. At the very least, it seems

obvious that Verstichele chose to "blindly rely on the assertions" of Kamerling,

whatever those assertions may have been. Marriner's own admitted imprudence in

giving the blank, signed checks to Kamerling is not enough to give license to

Kamerling to use the checks at any time in the future and for whatever reason

Kamerling might choose. Marriner may have been negligent, but his actions or

inactions fall short of leading Verstichele to the reasonable belief that Kamerling was

the agent of Marriner and had sufficient authority to subject Marriner to the

jurisdiction of a court in Gent, Belgium.

For these reasons the judgment of the trial court is affirmed. Costs of this

appeal are assessed to the Plaintiff/Appellant, Verstichele.

AFFIRMED.

11

NUMBER 04-354

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

HUBERT VERSTICHELE

VERSUS

RICHARD A. MARRINER

AMY, J., concurring.

I concur in the majority’s determination to affirm the granting of the no right

of action. In support of his exception of no right of action, the defendant presented

evidence indicating that although the relationship of principal/mandate may have

existed at one point, that relationship ceased well before the checks were allegedly

provided to the plaintiff. Furthermore, while the parties argue as to whether a

mandate/apparent agency relationship existed, there is no indication that the Belgian

court found personal jurisdiction present after finding such a relationship. There is

no evidence in the record that Mr. Kammerling represented himself to the plaintiff to

be the mandatary of the defendant or that there was reliance on such a representation.

Rather, the Belgian judgment indicates only that the check was provided “as security

for payment of the sum of money which the first defendant [Mr. Kammerling] had

undertaken to pay.” This finding relates to the actions of Mr. Kammerling, not those

of the defendant. Accordingly, I find no merit in the argument that the Belgian court

had personal jurisdiction over the defendant due to the presence of a relationship of

representation. The record lacks evidence to support such a finding. Accordingly,

I agree that the exception of no right of action was appropriately granted.