OMAR R. CHAVEZ v. ROBERT A. HULL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4632-06T24632-06T2

OMAR R. CHAVEZ,

Plaintiff-Appellant,

v.

ROBERT A. HULL,

Defendant-Respondent.

___________________________

 

Submitted September 29, 2008 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3043-03.

Joseph D. Kaplan & Son, P.C., attorneys for appellant (Martin J. Hillman, on the brief).

Backes & Hill, L.L.P., attorneys for respondent (Robert C. Billmeier, on the brief).

PER CURIAM

Plaintiff Omar R. Chavez appeals from the trial court's order of January 19, 2007, stating that he had been timely served with a summary judgment order entered on February 4, 2005; plaintiff also appeals from the trial court's order of April 13, 2007, denying reconsideration.

The tortuous history of this case may be summarized as follows. On November 25, 2003, plaintiff filed a complaint against defendant Robert A. Hull for damages arising out of an automobile accident. Defendant filed an answer and jury trial demand. Following discovery, defendant filed a motion for summary judgment on December 8, 2004, returnable on January 7, 2005.

On December 22, 2004, plaintiff requested and received a four-week adjournment of the return date to February 4, 2005, with defendant's consent. Plaintiff did not file any opposition to the motion. On February 4, 2005, the trial court entered an order granting summary judgment to defendant, dismissing the action with prejudice and noting that the motion was unopposed.

On July 25, 2005, plaintiff inquired of his attorney as to the status of his case. Plaintiff's attorney reviewed his file and realized that it contained no follow-up documents subsequent to the adjournment of the motion date. Plaintiff's attorney contacted defense counsel who stated that summary judgment had been granted in February and the order had been forwarded to the office of plaintiff's attorney. Defense counsel thereupon faxed to plaintiff's attorney a copy of the February 4, 2005 order, as well as counsel's transmittal letter of February 9, 2005.

On August 5, 2005, plaintiff filed a motion to vacate the summary judgment order, seeking relief pursuant to Rule 4:50-1(f). The trial judge denied this motion on September 9, 2005. Plaintiff thereupon moved for reconsideration, which was denied by an order entered on October 21, 2005.

On December 5, 2005, plaintiff filed an appeal from those orders. We rendered a decision remanding the matter for a plenary hearing

to determine whether service of the [February 4, 2005] order was late as claimed by plaintiff or timely. Likewise, whether plaintiff is attempting to use R. 4:50-1 as a substitute for failing to object to defendant's motion or follow up with a timely motion for reconsideration must be decided by a plenary hearing.

[Chavez v. Hull, No. A-1810-05 (App. Div. December 6, 2006) (slip op. at 6).]

Judge Paul Innes conducted a plenary hearing on January 8, 2007. Plaintiff's attorney, Martin J. Hillman, testified that his office received defendant's summary judgment motion in early December 2004; that motion was assigned to attorney Sheree Maskantz. Ms. Maskantz requested a four-week adjournment of the motion and, at some point thereafter, transferred responsibility for plaintiff's file to Hillman. When asked why he never filed any response to the motion, Hillman stated that he "could only speculate as to why not." Ms. Maskantz filed a certification in which she stated: "Inadvertently the [m]otion was misrouted in our office and we did not file opposition." Ms. Maskantz did not appear at the plenary hearing.

Lionel Kaplan, a partner in the firm, testified that defendant's motion was never calendared by the office. Kaplan also described the mail procedure at his law firm. For the last twenty years, the procedure has been, with limited exceptions, that he and the office manager open "all the . . . letters that come . . . to [the] lawyers." Kaplan then determines to whom the mail should be directed and either he or the office manager delivers the mail to the appropriate recipient. However, upon receipt of unopposed summary judgment orders, Kaplan follows a different procedure; he asks the attorney in charge of litigation, Jerem Gordon, about the order and Gordon decides which attorney should receive it.

Margaret Walker, legal secretary to defendant's attorney Robert Billmeier, testified that she had been responsible for handling the file in this matter. Ms. Walker testified that, upon the office's receipt of the order granting summary judgment, she wrote a cover letter addressed to Hillman at his law firm address, dated February 9, 2005. Ms. Walker had Billmeier sign the letter; she then photocopied the letter and "put the letter and the order in an envelope, stamped it, and then put it for . . . outgoing mail." Although Walker testified that she did not "specifically remember doing this specific letter," upon being presented with the copy of the February 9, 2005 letter, she confirmed that she had in fact typed it, as her initials appeared at the bottom of the page.

Ms. Walker further described the general postage and mailing procedure in place at Billmeier's office in February 2005:

We have a postage meter. I would run [the mail] in the postage meter. . . . [W]e have a place where we put the outgoing mail, and so after I prepare all mail to go out for the day, then I put it with the outgoing mail. And, then we take it to the box. . . . [T]he receptionist takes the mail to the corner, there's a U.S. Postal drop box and the mail goes into there.

Ms. Walker confirmed that the process she described was "used every working day[.]" She also testified that, to the best of her knowledge, the letter and order mailed to Hillman on February 9, 2005, had never been returned to her office.

At the conclusion of the testimony, the trial judge inquired of Hillman: "What do I have to indicate that [the letter and order were not] received by your office?" Hillman responded that, despite defendant's showing of proper mailing, three possibilities remained: (1) the letter was not mailed properly; (2) the letter was not delivered to Hillman's office properly; or (3) the letter was negligently mishandled in Hillman's office. To support these propositions, Hillman presented evidence of prior instances in which mail addressed to his law firm was not received by the intended recipients.

In his ruling, the trial judge noted that Rule 1:5-4 "makes provision that service of an order, even an order for summary judgment[,] is complete upon mailing." The judge found further:

Based upon the testimony from Ms. Walker here, which really went unchallenged and . . . there was no showing that she did not follow the ordinary course of business with her employer, the Court finds that service was complete upon mailing of the order granting summary judgment, I believe on February the 9th, 2005.

Now, the Kaplan law firm is essentially arguing that even though it may have been mailed, they never received it and for that reason, their motion for reconsideration was timely and that it was made within 20 days after service of the order. They're actually talking about actual service [on July 25, 2005], not service by mail, which is complete upon mailing, under Rule 1:5-4. But in any event, I will consider the testimony presented here and I think most . . . surprising is that we don't have the testimony from Ms. Maskantz. Ms. Maskantz was the attorney of record in this case at one time and, in fact, she was the person who asked for and obtained the adjournment of the original summary judgment motion that was filed in this case.

. . . .

I appreciate and accept the testimony from Mr. Hillman that he was able to examine the file and he didn't see any order in the file, but that doesn't really answer the question of whether or not the order did, in fact, come into the Kaplan law firm. As I said, there was another attorney responsible for the case, Ms. Maskantz, she might have been able to offer some testimony with regard to her knowledge concerning the situation, and I did go back also and review the certification from Ms. Maskantz in connection with the original motion for reconsideration.

And, quite frankly, that troubles me somewhat because there she . . . states: "Inadvertently, the motion was misrouted in our office and we did not file opposition." So that leads one to understand that there are some problems with the office. . . . Ms. Maskantz was the person who filed the motions for reconsideration. So, . . . it would seem to me that her testimony would have been important for the Court to have, to learn whether or not there had been all efforts made to search all files . . . . That was not done.

Also important is Mr. Hillman's testimony and I have to say, I found Mr. Hillman's testimony to be candid, his testimony was that when asked by Mr. Billmeier about the specific circumstances surrounding the situation here, that is, an order for summary judgment on a motion that was not opposed by the Kaplan law firm, whether or not one had ever been lost before, Mr. Hillman said in his experience this is the first time that this particular type of situation has occurred at the Kaplan law firm.

So, for those reasons, I cannot accept the argument made by Kaplan's law firm that they have shown me that the order was not received in the office, and I do find that the matter was properly served in accordance with the court rule.

Now, the second issue the Court must resolve is whether or not this application for reconsideration is really a substitute for the Kaplan's law office failure to oppose the motion for summary judgment. And, again, I have to point to Mr. Hillman's candid testimony. He stated that once he took over the file from Ms. Maskantz, it was his responsibility to oppose the motion and for whatever reason, he failed to do so. He certainly did not like having to make that admission, but he made it. . . .

Now, we know that attorney inadvertence is not a proper motion for reconsideration, so under the circumstances presented here, I have no option but to find that this particular motion for reconsideration is nothing more than a substitute for the Kaplan's office[']s failure to oppose the original motion for summary judgment.

Plaintiff moved for reconsideration, arguing that defendant had failed to make a prima facie showing of proper service, and citing Szczesny v. Vasquez, 71 N.J. Super. 347, 354 (App. Div. 1962), in support of his contention that the presumption of proper service by mail "may be overcome by evidence that the notice was never in fact received." The trial court rejected this argument, distinguished Szczesny factually, and denied reconsideration.

On appeal, plaintiff argues that the order of the trial court should be reversed because plaintiff "rebutted the presumption of proof of service by presenting evidence that the court order was not in fact received." Having considered this argument in light of the record, we affirm substantially for the reasons set forth in Judge Innes' decisions stated on the record on January 8 and April 13, 2007. R. 2:11-3(e)(1)(A). We add only the following comments.

Our scope of review in this matter is limited. When reviewing the factfindings of a judge sitting without a jury, we

"give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.

The aim of the review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record."

[State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)).]

Our analysis begins with Rule 1:5-4(b), which provides that "[s]ervice by mail of any paper referred to in Rule 1:5-1, when authorized by rule or court order, shall be complete upon mailing of the ordinary mail." Rule 1:5-1(a) includes "orders, judgments, [and] pleadings subsequent to the original complaint . . . ."

It was defendant's burden to prove that the mailing in fact occurred. Cwiklinski v. Burton, 217 N.J. Super. 506, 510 (App. Div. 1987). "Evidence of office procedure can give rise to the presumption of mailing." Ibid. Moreover, "proof of mailing, correct addressing and due posting of a letter raises the presumption that it was received by the addressee." Id. at 509.

The unrebutted testimony of Ms. Walker established that she typed Billmeier's February 9, 2005 letter enclosing the February 4 summary judgment order, addressed the correspondence to the Kaplan law firm, and put the envelope with the firm's outgoing mail for that day. The receptionist deposited the day's mail in a U.S. Postal Service box. This testimony supports the judge's finding that defendant "established conclusively the fact of mailing." Id. at 511.

Regarding plaintiff's reliance upon Sczcesny, supra, we note initially that plaintiff cited this case for the first time in its motion for reconsideration. In Sczcesny, the plaintiffs sought recovery from the Unsatisfied Claim and Judgment Fund Board (the Fund) of a judgment they had obtained against a bankrupt defendant. The plaintiffs claimed that they timely filed their notices with the Fund through their attorney who mailed the notices from his office.

As distinguished from the facts in this case, the record in Sczcesny established that "no letter or similar precaution was employed in transmitting the alleged notice of intention to register a legal claim against the Fund." Id. at 355. In the absence of supporting documentation, we concluded that "the mere dictation or writing of a letter, coupled with evidence of an office custom with reference to the mailing of letters, is not sufficient to constitute proof of mailing." Id. at 357.

We concur with Judge Innes' analysis distinguishing Sczcesny in his decision denying plaintiff's motion for reconsideration:

With regard to the citation of Sczcesny in response is that the plaintiff never brought Sczcesny to the Court's attention prior to this application for reconsideration.

The standard for reconsideration permits reconsideration on the basis of new or additional information only when said information could not have been provided on the first application. The instant case does not meet the standard and shall be disregarded.

Additionally, there are several factual discrepancies between the instant case and Sczcesny. First, the envelope containing the disputed document in Sczcesny did not contain a return address. The copies of the letter and order were also incomplete and no transmittal letter accompanied same.

Those same facts are not presented here. Additionally, the attorney who was responsible for the handling of this matter, Ms. [Maskantz], was never called to testify with regard to this particular matter.

The critical factual distinctions between this case and Sczcesny defeat plaintiff's argument that he successfully rebutted the presumption that the February 4, 2005 summary judgment order was received by his office.

Affirmed.

 

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A-4632-06T2

October 10, 2008