IVO KOPIC v. MAGRIPLIS CORPORATION, et al.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0212-05T10212-05T1

IVO KOPIC,

Plaintiff-Respondent,

v.

MAGRIPLIS CORPORATION, LEXINGTON

DINER, EFXHIHIA MAGRIPLIS, and

IRENE MAGRIPLIS,

Defendants,

and

ALEX MAGRIPLIS and

EMANUEL MAGRIPLIS,

Defendants-Appellants.

___________________________________________________________

 

Argued May 31, 2006 - Decided December 29, 2006

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-5346-98.

Richard P. Rinaldo argued the cause for appellants (Rinaldo and Rinaldo, attorneys; Mr. Rinaldo, of counsel and on the brief; John J. Sharkey, Jr., on the brief).

David L. Kowzun argued the cause for respondents (Goldstein, Ballen, O'Rourke & Wildstein, attorneys; Mr. Kowzun, of counsel and on the brief).

PER CURIAM

Defendants, Alex Magriplis and Emanuel Magriplis, who are brothers, appeal from an order dated August 18, 2005, which denied defendants' motion for reconsideration of an order dated July 13, 2005, denying their motion to vacate default and final judgment by default. We reverse and remand.

In August 1998, plaintiff, Ivo Kopic, sued defendants and others associated with the ownership and operation of a diner known as the Lexington Diner. The complaint alleged that on December 13, 1997, plaintiff slipped and fell in the parking lot at defendants' diner in Clifton, and that he sustained personal injuries. By the time the complaint was filed, the diner had gone out of business. Moreover, plaintiff's attempts to serve process on defendants at the business location and by mail were unsuccessful.

On December 18, 1998, the court granted plaintiff's motion for an order permitting service upon all the named defendants by publication in the Passaic Herald News. Still, no defendant came forward to answer or otherwise defend, and default was entered against them all. However, at a proof hearing conducted on November 30, 1999, plaintiff voluntarily dismissed the complaint, without prejudice, as to all defendants except Alex Magriplis and Emanuel Magriplis a/k/a Manny Magriplis. As to those two defendants, the judge considered plaintiff's unopposed proofs and placed his findings of fact on the record. Based upon those findings, an order for judgment, by default, was entered against Alex Magriplis and Emanuel Magriplis on December 17, 1999, in the amount of $69,642.60, consisting of a compensatory damages award of $65,000, plus $4,642.60 in prejudgment interest.

Approximately four years later, in or about July 2004, plaintiff located and served Alex Magriplis in Virginia Beach, Virginia, and Alex informed Emanuel of plaintiff's action seeking to enforce the judgment there. In the face of defendants' opposition to the enforcement action, the Virginia court stayed its consideration of the matter to afford defendants an opportunity to seek the vacation of the judgment in New Jersey. Both Alex and Emanuel moved for such relief in the Law Division, Passaic County, and on July 13, 2005, the return date of their motion, the request to vacate the default judgment was denied. The motion judge ruled the order permitting publication in 1999 had been an allowable discretionary determination under R. 4:4-4(b)(3) and that such service of process had been effective. The court further determined that defendants had failed to show excusable neglect for their delay in seeking relief from the default and default judgment. Defendant's motion for reconsideration of that order was also denied.

On appeal, defendants argue that service by publication did not comport with the requirements of due process, and, thus, the judgment is void and should be vacated. Defendants contend that they had not been aware they had been named as defendants in the personal injury action, let alone that a final judgment by default had been taken against them, until Alex Magriplis received notice in July 2004 of attempts by plaintiff's Virginia counsel to enforce the judgment in Virginia. Alex certified that he had lived in Fair Lawn, New Jersey, before moving to Virginia in February 1999. However, plaintiff points to an inconsistency in an earlier certification that suggested Alex was employed at Saddle Brook Diner in late March 1999, when a return of service indicated Alex was served by leaving a copy of the summons and complaint with a co-employee over the age of fourteen.

The primary method of obtaining jurisdiction is personal service of the summons and complaint upon the adverse party. R. 4:4-4. Pursuant to R. 4:4-4 (a)(1), in personam jurisdiction may be obtained over an individual by causing the summons and complaint to be delivered personally to the individual 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, or by delivering a copy thereof to a person authorized by appointment or by law to receive service process on the individual's behalf[.]

Service may be effected upon an individual proprietor, pursuant to R. 4:4-4(a)(4), by delivering a copy of the summons and complaint to any employee or agent of the individual acting in the discharge of his duties in connection with the business, provided that the action arises out of a business in which the individual is engaged within the State or out of any real property or interest in real property owned by the individual. However, "[i]f service cannot be made by any of the modes provided by [R. 4:4-4], any defendant may be served as provided by court order, consistent with due process of law." R. 4:4-4(b)(3).

Plaintiff argues in his brief that ". . . as long as a judge approves it [the mode of service], it will result in in personam jurisdiction. Thus, there is nothing in the rule that prohibits service via publication." Significantly, that purported restatement of the rule omits the requirement that any mode of service ordered by the court must be "consistent with due process of law." R. 4:4-4(b)(3). At its most basic, due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." O'Connor v. Altus, 67 N.J. 106, 126 (1975) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950)).

"Service by publication is hardly favored and is the method of service that is least likely to give notice." M & D Assocs. v. Mandara, 366 N.J. Super. 341, 353 (App. Div.), certif. denied, 180 N.J. 151 (2004). See also Modan v. Modan, 327 N.J. Super. 44, 48 (App. Div. 2000); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 794-800, 103 S. Ct. 2706, 2709-2712, 77 L. Ed. 2d 180, 184-188 (1983).

The United States Supreme Court has highlighted the ineffectiveness of constructive notice by publication, observing:

Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's normal circulation the odds that the information will never reach him are large indeed.

[Mullane, supra, 339 U.S. at 315, 70 S. Ct. at 658, 94 L. Ed. at 874.]

Therefore, "a valid judgment cannot be entered based on service by publication where a diligent inquiry for the identity and location of the persons entitled to be noticed of the action is not made, particularly where such an inquiry would have resulted in their amenability to personal service." Pressler, Current N.J. Court Rules, comment to R. 4:4-5 (2007). See N.J. Turnpike Auth. v. Tootle, 59 N.J. 308 (1971). See also Camden County Bd. of Soc. Servs. v. Yocavitch, 251 N.J. Super. 24 (Ch. Div. 1991).

Here, plaintiff did not find defendants while they resided in Fair Lawn, New Jersey, and nothing in the record, other than conclusory assertions in the certification of plaintiff's counsel in opposition to defendants' motion to vacate the final default judgment, suggests that defendants actually knew of the lawsuit and deliberately evaded service. Indeed, there is no competent evidence that defendants were aware of a pending suit until enforcement proceedings were commenced in Virginia. The newspaper publication simply did not satisfy the due process requirements of giving defendants notice and an opportunity to defend. More fundamentally, such publication was not reasonably calculated to give notice and opportunity to defend against the claim of negligent maintenance of the premises at the diner.

Service by publication of a notice in a newspaper is prescribed or permitted by R. 4:4-5, but that rule is limited to: "actions affecting specific property, or any interest therein, or any res within the jurisdiction of the court, or in matrimonial actions over which the court has jurisdiction, wherein it shall appear . . . that a defendant cannot, after diligent inquiry be served within the State[.]" This is not a case where service by publication is specifically authorized by rule and such service was not proper.

When a default judgment is entered in the face of ineffective service of process, the judgment is generally held to be void. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div.), certif. denied, 179 N.J. 309 (2004); Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992). As the court has recognized:

A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice. Sobel v. Long Island Entm't Prod. Inc., 329 N.J. Super. 285, 293-94 [] (App. Div. 2000). Such a judgment will usually be set aside under R. 4:50-1(d). If defective service renders the judgment void, a meritorious defense is not required to vacate the judgment under R. 4:50-1(d).

[Jameson, supra, 363 N.J. Super. at 425.]

By these standards, the default judgment should have been vacated.

Finally, we are aware that plaintiff also contends service was made upon Alex by leaving a copy of the summons and complaint with an employee of the Saddle Brook Diner in March 1999, while Alex was an employee there. Assuming that Alex was an employee there at that time, he was not an owner and the incident that gave rise to this lawsuit did not arise out of any interest he had, if any, in that business. There is no allegation and no basis to infer that the person with whom the summons and complaint was left was a person authorized by appointment or by law to receive service of process. R. 4:4-4(a)(1) and (a)(4). Plainly, such service was ineffective.

 
Obviously, defendants now have notice of the complaint; and they requested, in their motion to vacate, that they be permitted to file a responsive pleading. They have therefore invoked the jurisdiction of the court to allow them to defend against the claim asserted by plaintiff. Consistent with the request in their brief herein, we reverse and remand for further proceedings in the Law Division.

Reversed and remanded.

The complaint named as defendants: Magriplis Corporation; Lexington Diner; Alex Magriplis; Alkividias Magriplis; Efxihia Magriplis, Emanuel Magriplis; Irene Magriplis; ABC CO. and John Doe (said names being fictitious), Jointly, Severally or in the Alternative.

A court order is generally reserved for circumstances in which the usual modes of service are either impossible or unduly oppressive upon the plaintiff or where the defendant successfully evades service of process. Pressler, Current N.J. Court Rules, comment to R. 4:4-5 (2007).

(continued)

(continued)

9

A-0212-05T1

December 29, 2006

 


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