LEXINGTON APPRAISAL GROUP v. MERRICK WILSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2705-08T32705-08T3

LEXINGTON APPRAISAL GROUP,

Plaintiff-Respondent,

vs.

MERRICK WILSON,

Defendant-Appellant.

__________________________________

 

Submitted: November 18, 2009 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division-Special Civil Part, Mercer County, Docket No. DC-9170-08.

Merrick Wilson, appellant pro se.

Fornaro Francioso LLC, attorneys for respondent (Anthony R. Francioso, of counsel and on the brief).

PER CURIAM

Defendant Merrick Wilson appeals from an order denying his motion to vacate a default judgment. We reverse.

Plaintiff Lexington Appraisal Group filed a complaint on August 21, 2008, in which it alleged that defendant and it entered a contract for plaintiff to appraise property owned by defendant to support a tax appeal. Plaintiff further alleged that it performed the services requested by defendant, tendered a bill for those services, and defendant failed to pay as promised. Plaintiff sought damages in the amount of $1,764.58 plus interest, costs of suit, and attorneys' fees.

As is customary in the Special Civil Part, Rule 6:2-3(d)(1), the summons and complaint were served on defendant on August 29, 2008, by ordinary and certified mail. No answer having been filed, plaintiff sought and obtained a default judgment against defendant in the amount of $2,666.27 on October 16, 2008. Defendant filed a motion on December 5, 2008, to vacate the default judgment. In this motion, defendant recited he had not received the summons and complaint and would have filed an answer, if he had received the pleadings, because he had a meritorious defense. He stated that plaintiff provided no professional services to him. Rather, defendant asserted plaintiff provided professional services to the corporation that owns the appraised property, defendant executed the contract for professional services in his capacity as a corporate officer of the property owner, and plaintiff breached its agreement by providing a witness of inadequate experience to qualify as an expert witness.

The motion was heard on the papers as allowed by Rules 1:6-2(d) and 6:3-3(b)(2). The December 17, 2008 order denying the motion to vacate the default judgment explains the reason for the ruling as follows:

Defendant claims he was not aware of the complaint and summons, yet service was effected at the very address used by defendant to file this Motion. It was "unclaimed"; and the court is aware that this defendant has acted similarly in numerous cases previously, and the court no longer finds defendant credible with his excuses.

On appeal, defendant argues that he certified that he had not been served, filed a timely motion to vacate the default judgment, and presented a meritorious defense. Defendant argues that the motion should not have been denied based on the motion judge's assessment of defendant's credibility in unrelated cases. Finally, defendant objects to the award of attorneys' fees.

The same principles govern vacation of a default judgment in a Special Civil Part matter as a Law Division matter. Pressler, Current N.J. Court Rules, comment 1 on R. 6:3-1 (2010). An application to vacate a default judgment is "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.) (citing Foster v. New Albany Mach. & Tool Co., 63 N.J. Super. 262, 269-70 (App. Div. 1960)), aff'd, 43 N.J. 508 (1964). See also Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 99 (App. Div. 1998), certif. denied, 158 N.J. 686 (1999). The decision is left to the sound discretion of the motion judge and will not be disturbed absent an abuse of discretion. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). All doubts, however, should be resolved in favor of the party seeking relief. Arrow Mfg. Co. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989) (citing Foster, supra, 63 N.J. Super. at 269-70).

Here, defendant asserts lack of personal jurisdiction due to lack of service. This is a threshold issue because failure of service contravenes a party's right to due process of law. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003). A default judgment entered in the face of defective service renders the judgment void. Ibid. A void judgment will usually be set aside under Rule 4:50-1(d), and "[i]f defective service renders the judgment void, a meritorious defense is not required to vacate the judgment under [the rule]." Ibid.

In this matter the motion judge rejected out-of-hand defendant's contention of lack of service. He found defendant's assertion untruthful by reference to other, unrelated matters before the court. This is not permissible. A direct conflict of a critical fact cannot be resolved on the papers or by reference to other unidentified and unrelated matters that have come to the attention of the motion judge.

Finally, defendant's argument that the allowance of attorneys' fees is contrary to law is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We, therefore, reverse the December 17, 2008 order denying defendant's motion to vacate the October 16, 2008 default judgment and remand for further proceedings consistent with this opinion.

 

Plaintiff also sought an order to allow service by mail on the out-of-state defendant.

Defendant states that he initially filed a motion to vacate the default judgment on October 30, 2008, and re-filed this motion when informed by the clerk that it had not been received.

We cannot discern from the record presented to this court whether defendant submitted "the proffered answer and filing fee" as required by Rule 6:3-3(e).

(continued)

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A-2705-08T3

December 9, 2009