EAGLE INSURANCE COMPANY a/s/o MIGUEL SORIANO et al. v. MINOOSH FATHOLLAHI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3145-04T53145-04T5

EAGLE INSURANCE COMPANY a/s/o

MIGUEL SORIANO and YECENIA

VASQUEZ-CORTEZ,

Plaintiff-Respondent,

v.

MINOOSH FATHOLLAHI,

Defendant-Appellant.

_________________________________________________

 

Submitted October 25, 2005 - Decided January 20, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, L-2621-04.

Minoosh Fathollahi, appellant, pro se.

Clark & DiStefano, attorneys for respondents

(Robert P. Clark on the brief).

PER CURIAM

Defendant Minoosh Fathollahi appeals pro se from a default judgment of $21,049.51 against him and in favor of plaintiff Eagle Insurance Company as subrogee of Miguel Soriano and Yecenia Vasqyez-Cortez, entered in an action filed on June 17, 2004 in Passaic County, docket number L-2621-04, seeking damages arising out of a motor vehicle collision allegedly occurring on October 16, 2002. Defendant claims that the trial court mistakenly failed to consider his motion to dismiss the complaint based on lack of personal jurisdiction and improper venue. We reverse and remand the matter to complete the record and for further proceedings, if required.

On appeal, defendant claims that on the date of the alleged accident, he was a resident of the State of Florida, was not the owner of a vehicle involved in the accident, was not driving in or visiting New Jersey, and did not have a New Jersey driver's license. Defendant's jurisdictional and substantive arguments were contained in a pleading, the body of which is captioned "Motion to Dismiss," included in defendant's appendix on appeal, that bears a stamp indicating that it was received by the Deputy Clerk of the Superior Court in Passaic County on September 7, 2004. Defendant's appendix also contains a copy of a postal money order receipt, dated September 3, 2004, for the sum of $135, made payable to the Deputy Clerk of the Superior Court, 77 Hamilton Street, Paterson, NJ 07505. The receipt states additionally that the sum was to be used for civil case no. L-2621-04. That the motion was not filed appears from the fact that the words "and Filed" are stricken from the legend "Received and Filed" appearing on the stamp placed on the motion by an employee of the clerk's office.

The record does not reflect why filing did not take place. However, we note in this regard that although defendant's motion is preceded by the words "Motion to Dismiss," the document also erroneously contains in its caption the words "Answer and Counter-Claim." The determination not to file the papers could therefore have resulted from confusion regarding the nature of the pleading and the applicable filing fee.

A default judgment entered against a defendant by a court that lacks in personam jurisdiction over that defendant is void. Interlotto v. Nat. Lottery Admin., 298 N.J. Super. 127, 137 (App. Div. 1997), certif. denied sub nom, Interlotto, Inc. v. Investco, Ltd., 151 N.J. 78 (1997). Whether sufficient contacts exist to support the exercise of personal jurisdiction by New Jersey's courts may be raised by a motion to dismiss the complaint on jurisdictional grounds filed before an answer or general appearance is entered. R. 4:6-2. Here, it appears that defendant attempted to contest jurisdiction as the court rules permit.

If defendant's motion was properly filed as defendant contends, he was entitled to a hearing and disposition of that motion prior to the entry of any default against him. Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 532-33 (App. Div. 1996). If the motion was denied, defendant was entitled to notice of that fact and to an additional ten days after notice of the court's action to file an answer to plaintiff's complaint. R. 4:6-1(b). The record suggests that, for reasons that are not fully apparent from the record, no jurisdictional determination was made.

Alternatively, if the motion was defective, defendant was entitled to a notice of the defect and an opportunity to cure it. R. 1:5-6(c). The present record does not contain sufficient information to permit us to determine whether defendant's motion was in fact deemed defective, the nature and validity of any such determination, any notice to defendant of an alleged defect, or any attempt by him to effect a timely cure or otherwise respond.

We therefore remand the matter to permit the record to be completed regarding the disposition of defendant's jurisdictional motion and, if appropriate, for a determination of the jurisdictional issue.

Upon remand, defendant may move pursuant to R. 4:50-1 on any applicable grounds to vacate the default judgment entered against him.

 
Reversed and remanded. Jurisdiction is not retained.

A filing fee of $200 would have been required for an answer and counterclaim.

(continued)

(continued)

5

A-3145-04T5

January 20, 2006