SCOTT GABRIEL v. LOCHLAN MACQUEEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SCOTT GABRIEL,

Plaintiff-Respondent,

v.

LOCHLAN MACQUEEN,

Defendant-Appellant.

________________________________________

May 20, 2014

 

Submitted February 3, 2014 Decided

 

Before Judges Yannotti and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. SC-0941-12.

 

Lochlan MacQueen, appellant pro se.

 

Respondent has not filed a brief.

 

PER CURIAM

Plaintiff Scott Gabriel brought an action in the Passaic Small Claims Section of the Special Civil Part, claiming that defendant Lochlan MacQueen owed him $1,000 in unpaid rent. A default judgment was entered against defendant, and she thereafter moved to vacate the judgment, contending that she was never served with process. The court denied her request to vacate the default judgment. The record before us demonstrates that personal service of process in accordance with Rule 6:2-3 was never effectuated and, therefore, we reverse and remand to the trial court.

Defendant was a co-tenant at an apartment located in Little Falls. Plaintiff was defendant's landlord pursuant to a written lease agreement, which by its terms expired on June 1, 2012. On June 18, plaintiff filed a complaint against defendant for non-payment of two months' rent. Defendant contends that the complaint was filed after she vacated the premises, and after plaintiff had rented the apartment to new tenants. Plaintiff addressed the summons and complaint to defendant at her apartment address in Little Falls, which were sent by certified and ordinary mail. The record discloses that the certified mail was returned to the court by the postal service with the notation "return to sender unclaimed unable to forward." The record does not disclose the disposition of the ordinary mail.

On July 13, plaintiff was awarded a default judgment of $1,000, plus costs, and he sent notice of the judgment to defendant's address in Cape May Courthouse. Defendant contends that plaintiff knew at the time of filing the summons and complaint that defendant no longer resided in Little Falls and that he was aware of her actual residence in Cape May Courthouse.

Defendant moved to vacate the judgment asserting that she had not been properly served with the summons and complaint. On September 21, the court denied her motion finding that she had "failed to provide sufficient information to establish excusable neglect and a meritorious defense." It is from that order that defendant appeals.

Rule 6:2-3(d)(4),(5) provides in pertinent part:

(4) Effective Service. Consistent with due process of law, service by mail pursuant to this rule shall have the same effect as personal service, and the simultaneous mailing shall constitute effective service unless the mail is returned to the court by the postal service with a marking indicating it has not been delivered, such as "Moved, Left No Address," "Attempted -- Addressee Not Known," "No Such Number/Street," "Insufficient Address," "Not Deliverable as Addressed -- Unable to Forward," or the court has other reason to believe that service was not effected.

 

. . . .

(5) Vacation of Defaults. If process is returned to the court by the postal service subsequent to entry of default and displays any of the markings listed in the preceding paragraph, or other reason exists to believe that service was not effected, the clerk shall vacate the default or default judgment and shall immediately notify the plaintiff or attorney of the action taken.

 

Addressing defendant's argument, we recognize that Rule 6:2-3(d)(4) provides that service is ineffective if certified mail is returned to the court marked "return to sender unclaimed unable to forward," as here.

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 v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (internal quotation marks omitted). Applying this standard, we conclude that the court incorrectly denied defendant's motion to vacate the default judgment.

The court incorrectly denied the motion based on Rule 4:50-1(a), which requires proof of excusable neglect and a meritorious defense. Defendant, in effect, 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.

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)). Here, the time lapse was not unreasonable and no innocent third party's rights intervened.

 
 

 
 

 
 

 
 

For all of these reasons, we conclude that the judgment against defendant was void, and the court erred as a matter of law in declining to vacate it. We reverse and remand to the Law Division with instructions to vacate the judgment.

Reversed.