ALSON BARRETT v. AMY STEELE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3607-07T23607-07T2

ALSON and MURIEL BARRETT, by

their subrogee, THE CUMBERLAND

INSURANCE GROUP,

Plaintiff-Respondent,

v.

AMY STEELE,

Defendant-Appellant.

________________________________________________

 

Submitted November 19, 2008 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1804-04.

Frank C. Babcock, attorney for appellant.

Kearns & Duffy, attorneys for respondent (William J. Kearns and Michael C. Vaccaro, on the brief).

PER CURIAM

In this appeal, we hold that the trial judge mistakenly determined that plaintiff had substantially complied with our service of process rules and that defendant unreasonably delayed in seeking relief, when he denied defendant's motion to vacate the default judgment. Accordingly, we vacate the order under review and remand for additional proceedings designed to explore the factual disputes regarding service and the timeliness of defendant's motion for relief from the default judgment.

The record reveals that, on February 8, 2003, a fire caused damage to a residence owned by Alson and Muriel Barrett. Their homeowners insurance carrier, plaintiff Cumberland Insurance Group, paid their claim and, pursuant to its subrogation rights, brought this action against defendant Amy Steele, alleging that the faulty furnace in defendant's neighboring property caused the fire. No answer was filed and a default judgment was entered on November 19, 2004, in favor of plaintiff and against defendant, in the amount of $136,976.36.

Defendant moved to vacate the default judgment; we assume the motion was filed in January 2008. Defendant asserted by way of her supporting certification that she had "recently learned" of the default judgment and that her attorney discovered from a review of the trial court's file that plaintiff claimed to have successfully served defendant on April 22, 2004 by "affixing" true copies of the summons and complaint "to a door" at what plaintiff claimed was defendant's "last known address," 93 Cooper Street, Lake George, New York. In her certification, defendant asserted that this Lake George address was her "mother's old address," that defendant had only lived there "for four months in 2000," and that she had resided in New Jersey from 2000 to 2007.

The judge denied the motion; the only reasons given for that determination were written in the margin of the February 15, 2008 order:

[T]he motion to vacate default judgment is denied because there was no substantial deviation from service of process rules, and said motion was not made within a reasonable time (R. 4:50-2).

After carefully examining the record on appeal, we conclude that the judge erred in denying defendant's motion. The record engenders considerable doubt whether plaintiff complied with our service of process rules and whether defendant unreasonably delayed in moving for relief from the default judgment. We, thus, vacate the order under review and remand for a further inquiry, and, if necessary, an evidentiary hearing into the issues raised.

In examining the record on appeal, we observe that there was a legitimate dispute about whether plaintiff properly effected service of process. In serving an individual defendant within this State, Rule 4:4-4(a)(1) requires that a plaintiff must deliver "a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein." Because plaintiff concededly did not effect service of process within the State, we must consider whether plaintiff complied with Rule 4:4-4(b)(1), which permits service on an individual outside the State "[i]f it appears by affidavit . . . that despite diligent effort and inquiry personal service cannot be made in accordance" with Rule 4:4-4(a)(1).

In considering the sufficiency of service on defendant outside the State, we note that the record on appeal contains no affidavit of diligent inquiry. If no such affidavit was filed in the trial court, then plaintiff was not entitled to effect service of process outside our boundaries as the means for securing personal jurisdiction over defendant. The requirement that a plaintiff file an affidavit of diligent inquiry in order to present a factual basis for an alternate mode of service is not a mere formality. As we held in M & D Associates v. Mandara, 366 N.J. Super. 341, 353 (App. Div.), certif. denied, 180 N.J. 151 (2004), diligent inquiry is a predicate to a determination of whether the requirements of due process have been satisfied. Accordingly, in ascertaining the sufficiency of service outside this State, a judge must "carefully scrutinize[]" the affidavit required to ascertain whether plaintiff undertook a diligent inquiry. M & D Assocs., supra, 366 N.J. Super. at 353.

Assuming a sufficient affidavit of diligent inquiry was filed, then plaintiff was entitled, pursuant to Rule 4:4-4(b)(1)(A), to effect service of process on defendant outside the State so long as the procedure was conducted "in the same manner as if service were made within this State." Because plaintiff does not assert that personal service was made on defendant in New York in the manner permitted by Rule 4:4-4(a)(1), the sufficiency of service turns on whether plaintiff complied with Rule 4:4-4(b)(1)(C), which allows personal service on an individual outside the State by "mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail" to the individual's "dwelling house or usual place of abode."

Here, if we assume the truth of the facts asserted in the affidavit of service filed by plaintiff on May 11, 2004, it is readily apparent that plaintiff failed to comply with our service rules. The affidavit states that true copies of the summons and complaint were "affix[ed] to [a] door" of a residence on Cooper Street, Lake George, New York, and mailed to the same address in a sealed envelope with "first class postage." The problem for plaintiff is that our rules do not authorize "nail and mail" process. Accordingly, it is irrelevant to our inquiry to consider whether the "nail and mail" service that allegedly occurred in Lake George complied with New York's service of process rules. Plaintiff was required to effect service by mail, if permitted in these circumstances, in the manner required by our service of process rules, not in the manner permitted by the rules applicable in the state where service was attempted. See Sobel v. Long Island Entm't Prod. Inc., 329 N.J. Super. 285, 291 (App. Div. 2000).

The mail feature of the service allegedly attempted by plaintiff in Lake George also failed to conform to our service rules. The only mailing that was made at that time was by regular mail. Rule 4:4-4(b)(1)(C), when applicable, requires that service must be by registered or certified mail and by regular mail. There is no evidence in the record to suggest that plaintiff mailed the summons and complaint by either registered or certified mail.

Moreover, service by mail must be to the defendant's "dwelling house or usual place of abode." There is no proof in the record on appeal that would demonstrate that the Lake George property was defendant's "dwelling house or usual place of abode." At the very least, defendant's relationship to the Lake George property was a matter of factual dispute. Although plaintiff provided evidence suggesting defendant's ownership of that property, defendant filed a certification asserting she was a resident of New Jersey at the time of purported service and that she did not live at the Lake George location.

In the final analysis, "it is not sufficient that a defendant somehow receive a copy of the summons and complaint within sufficient time to file an answer." Sobel, supra, 329 N.J. Super. at 293. Instead,

[t]he requirements of the rules with respect to service of process go to the jurisdiction of the court and must be strictly complied with. Any defects . . . are fatal and leave the court without jurisdiction and its judgment void.

[Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493, cert. denied, 344 U.S. 838, 73 S. Ct. 251, 97 L. Ed. 652 (1952); see also Sobel, supra, 329 N.J. Super. at 293; Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204-05 (App. Div. 1990).]

When significant questions are posed about the sufficiency of service of process -- particularly when the record demonstrates there are genuine factual disputes -- a trial court must either adjourn the motion and compel greater specificity in the parties' submissions, schedule a brief period of discovery, or, when factual disputes persist, conduct an evidentiary hearing to resolve any material factual controversies. See, e.g., Johnson v. Bradbury, 233 N.J. Super. 129, 134 (App. Div. 1989).

We additionally observe that the trial judge was faced with a factual dispute about whether defendant moved within a reasonable time after learning of the default judgment, the second ground that formed the basis for his denial of defendant's motion. In moving for relief, defendant asserted that she had "recently learned" of the judgment. Plaintiff argued this was not a credible contention, and provided correspondence exchanged in July 2006 between its attorney and another attorney, who only described himself in his letter as being "involved in the close of" defendant's Jersey City property; the correspondence discussed an amount that would be acceptable to plaintiff to satisfy the default judgment. However, although compelling on its face, this correspondence only created a question of fact as to the date of defendant's knowledge of the default judgment in light of her own certification that she had only recently learned of the judgment.

Moreover, a determination about defendant's alleged tardiness in seeking relief was not as simple as calculating the time that may have elapsed between her knowledge of the default judgment and the date the motion was filed. Although, as we have observed, the amount of time that elapsed was a matter of dispute, a determination as to the reasonableness of the length of delay must be examined through application of the doctrine of laches. See, e.g., M & D Assocs., supra, 366 N.J. Super. at 352. This requires consideration of the prejudice to the party asserting the unreasonableness of the delay and whether the rights of innocent third persons have intervened. Sonderman v. Remington Constr. Co., Inc., 127 N.J. 96, 106 (1992); Sobel, supra, 329 N.J. Super. at 293. The judge's assumption that defendant unreasonably delayed in seeking relief, without considering whether or to what extent any other party or person would be prejudiced, cannot stand. Absent further factual scrutiny and, if necessary, an evidentiary hearing into the questions posed, it was erroneous for the judge to deny defendant's motion for relief from the default judgment.

We lastly mention that plaintiff has erroneously argued that defendant failed to assert a meritorious defense to the claim. This aspect, which attaches to most Rule 4:50 motions, has no application here. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S. Ct. 896, 900, 99 L. Ed. 2d 75, 82 (1988); Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 313 (App. Div. 1997).

 
We vacate the order denying defendant's motion to vacate the default judgment and remand for additional proceedings in conformity with this opinion. We do not retain jurisdiction.

Defendant failed to include a copy of her notice of motion in the appendix, contrary to Rule 2:6-1(a)(1)(I), and her brief's procedural history makes no mention of the motion's filing date, contrary to Rule 2:6-2(a)(2). Defendant did include in the appendix a copy of her supporting certification, but that certification bears no date. We assume the motion was filed in January 2008 only because that is what plaintiff has asserted in its brief.

Plaintiff argues that defendant owned property at 93 Cooper Street in Lake George. The copy of the affidavit of service included in plaintiff's appendix is too illegible to determine whether the place where the summons and complaint were both "nailed and mailed" was 93 Cooper Street or 23 Cooper Street.

In New York, upon a showing of due diligence that personal service cannot be effected, a plaintiff may make service "by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business." N.Y.C.P.L.R. 308(4). As New York's highest court has made clear, the mailing may occur at the defendant's last known address, but the nailing must be done at the defendant's business, dwelling place or usual place of abode, which are terms that are distinguishable from a defendant's last known address. See Feinstein v. Bergner, 397 N.E.2d 1161, 1163 (N.Y. 1979). As we have observed elsewhere in this opinion, the record is unclear as to whether the Lake George residence constituted "defendant's business, dwelling place or usual place of abode."

We would also observe that because a motion to vacate a judgment based upon a claim of faulty service of process falls within the parameters of Rule 4:50-1(d), the one-year time period contained within Rule 4:50-2 has no application here. See Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004).

(continued)

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A-3607-07T2

December 10, 2008