ROBERT J. TRIFFIN v. EAGLE SYSTEMS, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0262-08T10262-08T1

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

EAGLE SYSTEMS, INC.,

Defendant-Respondent,

and

MARCELLO A. BARBOSA,

Defendant.

________________________________________________________________

 

Argued March 8, 2010 - Decided

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-9785-05.

Robert J. Triffin, appellant, argued the cause pro se.

Respondent has not filed a brief.

PER CURIAM

Plaintiff, Robert J. Triffin, appeals from the June 27, 2008 order of the Special Civil Part denying his motion to reinstate his complaint, and the August 8, 2008 order denying his motion for reconsideration. Plaintiff's complaint was dismissed because he failed to appear at trial. Plaintiff contends he never received notice of the trial, as a result of which the complaint should not have been dismissed and his motion to reinstate it should have been granted. We reject plaintiff's argument and affirm.

Plaintiff initiated this action on July 11, 2005 against the issuer of a check, Eagle Systems, Inc. (Eagle) and the payee, Marcello A. Barbosa (Barbosa). Eagle had issued the check to Barbosa in the amount of $1924.74. For reasons not important to the appeal, Eagle issued a new check to Barbosa on February 22, 2005 in the amount of $1724.74, and it stopped payment on the previously issued check which the new one replaced. Barbosa cashed the original check with Express Check Cashing, Inc. on March 1, 2005. Upon presentment of the check, it was dishonored on that date as a "Payment Stopped" item. On June 24, 2005, Express Check Cashing, Inc. executed an assignment of the dishonored check to plaintiff, who then initiated this action pursuant to N.J.S.A. 12A:3-414 and -415 of the Uniform Commercial Code.

On September 22, 2005, Eagle filed an answer. However, on October 5, 2005, the clerk of the Middlesex County Special Civil Part rejected the answer for some technical deficiency. Eagle apparently corrected the deficiency but, according to plaintiff, failed to serve him with the corrected answer that was filed with the court.

Plaintiff subsequently filed a request to enter default judgment, supported by his certification, and on December 6, 2005, the court entered judgment by default against Eagle in the amount of $2058.86. On April 23, 2008, the court ordered that the entry of judgment against Eagle be vacated based upon the court's determination that the judgment had been improvidently granted because defendant failed to appear for trial, which had been scheduled on November 14, 2005.

On May 5, 2008, plaintiff filed a motion to reinstate the complaint. In his moving papers, plaintiff certified that "a review of plaintiff's file shows that this court failed to send plaintiff notice of the trial call for this matter." Eagle's opposition was supported by a certification of a vice-president of the company that it had received postcard notification of the trial date on October 17, 2005, scheduling the trial for November 28, 2005 at 9:00 a.m., and that "[w]e were prepared and ready to defend this claim at that time." At the hearing on the motion on June 27, 2008, two attorneys appeared on behalf of Eagle. One of them advised the court that "Eagle Systems showed up [and] I was one of them" who was present, but "the plaintiff never showed up." Co-counsel then commented that as a result the complaint was dismissed.

At the hearing, referring to the court file, the judge said:

Well, Mr. Triffin, quite frankly, the -- the Court records show that notice was sent to all parties for the trial and there is no -- and they have your -- they have your address on file. You've been in this courtroom many times. And there is no basis for this Court to find that there was excusable neglect for failure to appear at the trial and therefore, the motion is denied.

The judge accordingly entered the order of June 27, 2008 denying plaintiff's motion to reinstate the complaint.

Plaintiff moved for a reconsideration. In his supporting certification, he expanded somewhat on his assertion that he had not received trial notice, stating that "[a] search of plaintiff's file for this archived case shows that plaintiff did not receive a trial notice for any of the defendants in this case." In an opposing certification, the same vice-president of Eagle reiterated that Eagle had received the postcard notification and "[w]e were prepared and ready to defend this claim at the given trial date." After hearing oral argument on August 8, 2008, the judge was satisfied that nothing new had been presented and he accordingly entered an order on that date denying plaintiff's reconsideration motion. This appeal followed.

Upon appellate review, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995). However, factual findings by the trial court are considered binding "when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Discretionary decisions are reviewed under an "abuse of discretion" standard, which questions whether a decision was "made without a rational explanation, inexplicably departed from establish policies, or rested on an impermissible basis," and whether the decision was "arbitrary, capricious, whimsical, or manifestly unreasonable." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002). To this end, an abuse of discretion is shown "if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).

If a plaintiff fails to appear at trial "without just excuse or because of failure to give reasonable attention to the matter," the court is authorized to dismiss the complaint. R. 1:2-4a. That is what happened here on the day of trial. As a result, the default judgment subsequently entered was improperly entered and was vacated by the court. The dispositive issue before us, as before the trial court, is whether plaintiff received notice of the trial. If the record supports the judge's finding that he did, we have no occasion to disturb the judge's discretionary decision to deny plaintiff's reinstatement motion.

Our law recognizes a presumption that "mail properly addressed, stamped, and posted was received by the party to whom it was addressed." SSI Med. Servs., Inc. v. State Dep't of Human Servs., 146 N.J. 614, 621 (1996). In order to invoke this presumption, it must be shown "(1) that the mailing was correctly addressed; (2) that proper postage was affixed; (3) that the return address was correct; and (4) that the mailing was deposited in a proper mail receptacle or at the post office." Ibid. (citing Lamantia v. Howell Twp., 12 N.J. Tax 347, 352 (1992)).

Plaintiff argues that these criteria were not satisfied. We are hindered somewhat in our review by the sparse record furnished to us by plaintiff and the failure of defendant to file a response in this court. However, what the record does tell us is that the judge looked at the court file and recognized that the notice was sent to plaintiff at his correct address. It is fair to infer that the notices were indeed mailed properly with the correct postage because Eagle received its notice and had its representatives in the courtroom at the duly appointed time for trial. In essence, we are here reviewing the judge's factfinding on this issue, and we defer to it.

We are also satisfied that the judge did not err in rejecting plaintiff's contention that by his certifications he rebutted the presumption that he received the trial notice. In support of his argument, plaintiff relies on the legal standards governing the refutation of rebuttable presumptions. Comment 9 to N.J.R.E. 301 provides that "for [a] presumption to be rebutted as a matter of law, the contradicting evidence must be strong enough so that after its admission reasonable [persons] would differ as to whether the presumed fact could be found." Biunno, Current N.J. Rules of Evidence, comment 9 on N.J.R.E. 301 (2009) (citing Harvey v. Craw, 110 N.J. Super. 68, 73 (App. Div.), certif. denied, 56 N.J. 479 (1970)). Comment 9 also provides that "[g]enerally, evidence sufficient to raise a debatable question is all that is necessary to rebut a presumption." Ibid. (citing Wasserman v. Parciasepe, 377 N.J. Super. 191, 198-99 (Ch. Div. 2004)).

We find unpersuasive plaintiff's conclusory assertion that he did not receive the notice and his rather bland and vague basis for the assertion, namely that he checked his files and the notice was not there. Nor are we persuaded by plaintiff's reliance on the fact that he once received a copy of a court notice that was not directed to him, but which was inadvertently stuck to a notice that was directed to him. We do not doubt that on occasion mistakes can be made. This circumstance does not obviate the presumption of receipt that is recognized in our law when the necessary criteria are satisfied.

For the reasons we have stated, the presumption exists in this case. That shifts the burden to plaintiff to overcome it. He has not done so. He has not, for example, certified that during the time in question he was experiencing problems in receiving mail addressed to him. He did not claim, for example, that neighbors were receiving his mail, that he was aware of other mail or bills sent to him that he did not receive, that someone was stealing his mail, or that he had taken any steps to rectify any such problems, such as by writing a letter to the post office or renting a post office box.

We are satisfied that the judge's factual findings are supported by the record. We are also satisfied that the judge correctly applied the controlling legal principles. Finally, we find no mistaken exercise of discretion in the judge's determination that plaintiff did not demonstrate that his failure to appear at trial should be excused.

 
Affirmed.

(continued)

(continued)

9

A-0262-08T1

March 31, 2010