MANUEL VIEIRA v. ALBINA GUERRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2352-10T1

MANUEL VIEIRA,

Plaintiff-Respondent,

v.

ALBINA GUERRA,

Defendant-Appellant.

_________________________________________________

December 14, 2011

Submitted October 18, 2011 - Decided

Before Judges Payne and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-003107-10.

The Lambert Firm, P.C., attorney for

appellant (Cristina R. Lambert, of

counsel; Clara S. Licata, on the brief).

Esteves & Garcia, L.L.C., attorneys for

respondent (Ana P. Esteves, on the brief).

PER CURIAM

Defendant, Albina Guerra, appeals from a December 3, 2010 order denying her motion pursuant to Rule 4:43-3 to vacate a default judgment entered against her in the Special Civil Part for the sum of $15,000 plus post-judgment interest.

The record establishes that defendant rented an apartment to plaintiff, Manuel Vieira, on a month-to-month basis, charging rent in the amount of $950 per month, with a $950 security deposit. On November 29, 2009, plaintiff vacated the apartment and requested the return of his security deposit. However, defendant sought to withhold $95, constituting the cost to defendant of installing a telephone jack in the apartment. A dispute arose over the deduction, and in the course of the dispute, the palm of plaintiff's hand was cut, either with a knife or the apartment key. Defendant claims that plaintiff injured her wrist. Both parties filed police reports and both were treated in hospital emergency rooms. No part of the security deposit was ever returned to plaintiff.

Thereafter, both plaintiff and defendant filed municipal court actions for assault. However, plaintiff's action was lost and never tried. Defendant's action was tried in Newark Municipal Court in April 2011, and resulted in a verdict of not guilty.

In the meantime, on January 22, 2010, plaintiff filed a complaint against defendant in the Special Civil Part claiming breach of the Security Deposit Act, N.J.S.A. 46:8-19 to -26, battery, assault, and the intentional infliction of emotional distress. Service of process was allegedly effected by the court by regular and certified mail. However, the certified mail, which bore the wrong zip code 97107 rather than 07104 was returned as unclaimed. The regular mail was not returned. Defendant has certified that she never received the complaint.

On March 24, 2010, plaintiff's attorney mailed a correctly addressed notice of motion for a default judgment by regular and certified mail, neither of which was returned as undeliverable. The motion was accompanied by a certification from plaintiff, in which he claimed damages of $1,900 for failure to return the security deposit and $455.64 in unreimbursed medical expense. In support of his claim for damages for emotional distress, plaintiff certified:

I have suffered emotionally as a result of this assault. This happened in front of my daughter and it was humiliating for me.

Additionally, plaintiff claimed that, as the result of the assault, he had residual numbness and tingling in his left hand. A judgment in the amount of $15,000 was requested.

On failing to receive a response to the motion, a $15,000 default judgment was entered on April 16, 2010. Contrary to proper practice, a proof hearing did not take place with respect to plaintiff's unliquidated damage claim. See R. 4:43-2(b) (providing that "[i]f, to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court, on its own motion or at the request of a party on notice to the defaulting defendant or defendant's representative, may conduct such proof hearings . . . as it deems appropriate.").1

Defendant was informed of the judgment by letter dated April 26, 2010, although she claims not to have received a copy of the judgment itself. On May 24, 2010, a notice of levy was served on defendant in the amount of $16,552.80, an information subpoena was served on her on September 17, 2010, and a notice of motion for order enforcing litigant's rights was served on October 29, 2010. It was at that point that defendant cross-moved to vacate the default judgment against her, filing her motion on November 10, 2010, approximately seven months after the default judgment had been entered. The motion to vacate default was denied on the papers without any statement of reasons, and the motion enforcing litigant's rights was granted. Defendant appealed.

On appeal, defendant claims that the judgment was void because service was not perfected. Accordingly, she argues that it should have been vacated pursuant to Rule 4:50-1(d). Additionally, defendant claims that she does not speak English, and she did not understand the significance of the documents that she did receive. She argues as a result that the default judgment should have been vacated under Rule 4:50-1(a) (excusable neglect) or (f) (other reasons warranting relief). Both of these arguments were made in the trial court. However, because the court neglected to give any reason for its denial of defendant's motion, we are unable to determine the basis for that ruling.

Rule 1:7-4(a) provides:

The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, . . . The court shall thereupon enter or direct the entry of the appropriate judgment.

In this case, the court did not comply with that rule. Nor did the court set forth its reasons following the filing of the notice of appeal as permitted by Rule 2:5-1(b).

Although we could remand the matter with directions that the necessary factual and legal findings be made, we choose instead to assume original jurisdiction pursuant to our constitutional authority, Const. 1947, Art. VI, V, par. 3, and Rule 2:10-5, and to decide ourselves the issues raised by this appeal. Farmingdale Realty Co. v. Farmingdale, 55 N.J. 103, 106 (1969); Leeds v. Chase Manhattan Bank, 331 N.J. Super. 416, 420-21 (App. Div. 2000).

Addressing defendant's first argument, we recognize that Rule 6:2-3(d)(4) provides service is effective if certified mail is returned to the court marked "unclaimed," as here, but the ordinary mail is not returned. We also recognize that, in this case, the ordinary mail was not returned. However, the envelope sent to defendant bore a zip code applicable to Bay City, Oregon,2 not Newark, New Jersey. Moreover, defendant has certified that she did not receive service of process. In these unusual circumstances, we are unwilling to presume that proper service was effected by regular mail. Thus, grounds exist to vacate the default judgment under Rule 4:50-1(d) because the judgment is void for lack of in personam jurisdiction. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004). A motion to vacate a judgment that "is void and, therefore, unenforceable . . . is a particularly worthy candidate for relief (R. 4:50-1(d)) provided that the time lapse [between the entry of the judgment and the motion to vacate the judgment] is not unreasonable and an innocent third party's rights have not intervened." Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003) (citing Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 205 (App. Div. 1990); Coryell, L.L.C. v. Curry, 391 N.J. Super. 72, 80 (App. Div. 2006). All doubt 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 v. New Albany Mach. & Tool Co., 63 N.J. Super. 262, 269-70 (App. Div. 1960)).

In this case, defendant moved to vacate the judgment against her within seven months of its entry. Thus, her motion was not untimely. Cf. R. 4:50-2 (imposing a one-year limit on motions to vacate judgment pursuant to Rules 4:50-1(a), (b) and (c). Further, we find that, because plaintiff's complaint was timely filed, plaintiff was diligent in pursuing his action, and because the mistake in service was caused by the court and remained unrecognized, plaintiff is not time-barred from proceeding with re-service of his suit. Berger, supra, 244 N.J. Super. at 206. Thus, plaintiff has sustained no prejudice as the result of our decision.

Having determined this appeal on the first ground asserted by defendant, we decline to address whether grounds to vacate the judgment also exist under Rule 4:50-1(a) or (f).

R

1 We find that the court abused its discretion in failing to conduct a proof hearing in this case to establish the extent of plaintiff's emotional distress damages and to determine whether they met the threshold established in Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366-67 (1988). If plaintiff sought damages for pain and suffering or for permanent injury as the result of the laceration to his hand, prima facie proof of such damages would also be required. See Douglas v. Harris, 35 N.J. 270, 276 (1961) (holding that trial court has discretion to require proof of liability upon default); Heimbach v. Mueller, 229 N.J. Super. 17, 24-28 (App. Div. 1988) (applying prima facie standard to plaintiff's proofs).

2 We take judicial notice of this fact. N.J.R.E. 201(b).