KLEEBLATT, GALLER ABRAMSON, LLC v. EDWARD FEUER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0730-09T2

KLEEBLATT, GALLER,

ABRAMSON, LLC,

Plaintiff-Respondent,

v.

EDWARD FEUER,

Defendant-Appellant.

_______________________________________

November 15, 2010

Submitted November 4, 2010 - Decided

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5154-08.

Edward Feuer, appellant pro se.

Richard P. Galler, attorney for respondent.

PER CURIAM

Defendant Edward Feuer appeals from the December 5, 2008 default judgment, and from the September 3, 2009 Law Division order denying his motion to vacate the judgment. We affirm.

On July 7, 2008, plaintiff Kleeblatt, Galler, Abramson, LLC, filed a complaint against defendant for non-payment of attorney's fees and costs incurred in connection with its representation of defendant in a criminal matter. Defendant was convicted and incarcerated at the Metropolitan Detention Center (Detention Center) in Brooklyn, New York.

On September 12, 2008, plaintiff filed a request to enter default supported by an affidavit of service from an attorney at plaintiff's law firm confirming that on August 3, 2008, he had personally served defendant with the summons and complaint at the Detention Center. On December 5, 2008, the court entered judgment against defendant in the amount of $66,719.56 plus interest for attorney's fees. Defendant did not appeal.

Defendant filed a motion to vacate the default judgment, arguing it was void because he was not served with the summons and complaint.1 He did not dispute that he was in the Detention Center on August 3, 2008. The trial judge denied the motion based on defendant's failure to appeal the default judgment and failure to establish a meritorious defense. The judge entered the September 3, 2009 order memorializing her decision. This appeal followed.

We review a trial judge's determination of a motion to vacate a default judgment under an abuse-of-discretion standard. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States ex rel. USDA v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (internal quotation marks omitted).

Applying this standard, we conclude that the trial judge incorrectly denied defendant's motion based on his failure to file an appeal. "[T]he rule in New Jersey is that a direct appeal will not be from a judgment by default." N.J. Div. of Youth & Family Servs. V. T.R., 331 N.J. Super. 360, 363 (2000) (citing Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992). "The sole recourse for relief from a default judgment is a motion under Rule 4:50-1." Haber, supra 253 N.J. Super. at 416.

The judge also incorrectly denied the motion based on Rule 4:50-1(a), which requires proof of excusable neglect and a meritorious defense. Defendant moved to vacate the default judgment pursuant to Rule 4:50-1(d), claiming that the judgment is void for lack of personal jurisdiction due to defective service. A motion pursuant to Rule 4:50-1(d) does not require proof of excusable neglect and a meritorious defense. See Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004). Rather, such a motion requires proof that the judgment is void and, in this case, void for lack of personal jurisdiction due to defective service. see ibid. Nonetheless, we affirm the denial of defendant's motion for reasons other than those expressed by the trial judge. See Isko v. Planning Bd. of Livingston Tp., 51 N.J. 162, 175 (1968), abrogated on other grounds by Commercial Realty & Res. Corp. v First Atl. Props. Co., 122 N.J. 546, 565-66 (1991).

In requesting entry of default, plaintiff relied on an affidavit of service, which confirmed personal service on defendant at the Detention Center on August 3, 2008. Although a return of service is not conclusive evidence of effective service, it "raises a presumption that the facts as therein recited are true." ABE Goldfarb v. Roeger, 54 N.J. Super. 85, 90 (App. Div. 1959); see also Jameson, supra, 363 N.J. Super. at 426.

Prior to 2002, the law presumed the truth of the facts recited in the return of service of process by a sheriff or other officer, rebuttable only by clear and convincing evidence. See Pressler & Verniero, Current N.J. Court Rules, comment to R. 4:4-7. There is no authority applying the presumption of truth to other persons now authorized by Rule 4:4-3 to make service of process, such as the attorney in this case. Ibid. Assuming the presumption applies to such persons, the record contains no evidence tending to rebut that presumption. "If some evidence is presented tending to disprove the return, but is not sufficient to establish that the return is false, the presumption is nevertheless eliminated from the case." Jameson, supra, 363 N.J. Super. at 426 27. "Once the presumption is removed from [the] case, it remains plaintiff's overall burden of persuasion to demonstrate that service upon [defendant] was achieved . . . ." Id. at 428 29.

Because defendant presented no evidence to rebut the presumption that he was personally served with the summons and complaint on August 3, 2008, we conclude that he was properly served and his motion to vacate was properly denied. We further conclude that defendant's appeal from December 5, 2008 default judgment is untimely.

1 The record before us does not reveal the filing date of the motion.