ALLIANCE GAME DISTRIBUTORS INC v. VINCENT SEESE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ALLIANCE GAME DISTRIBUTORS,

INC.,

Plaintiff-Respondent,

v.

VINCENT SEESE,

Defendant-Appellant.

_____________________________________________

June 18, 2015

Before Judges Reisner and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. DJ-089999-13.

Scott L. Puro argued the cause for appellant (Backes & Hill, L.L.P., attorneys; Mr. Puro, on the brief).

James T. Hunt, Jr., argued the cause for respondent (Slater, Tenaglia, Fritz & Hunt, P.A., attorneys; Mr. Hunt, on the brief).

PER CURIAM

Defendant Vincent Seese (Seese) appeals from the August 23, 2013 and October 25, 2013 orders denying his motion to vacate default judgment. Defendant argues before us, as he did to the trial judge, that service was defective, and therefore the judgment was void and should have been vacated. We reverse and remand for further proceedings consistent with our opinion.

Seese was the sole proprietor of a hobby shop in Connecticut. He entered into an agreement with Alliance Game Distributors Inc. (Alliance) for the sale of merchandise. In May 2004, Seese sold his business and claims that thereafter he had no further contact with Alliance nor his prior business. In January 2007 a lawsuit was filed by Alliance against defendant in Maryland seeking approximately $58,000 for unpaid invoices for merchandise. In July 2007, default judgment was entered against defendant after he failed to respond to the lawsuit.

Also pertinent to our discussion are some aspects of defendant's personal life. In October 2006 defendant and his wife separated and defendant moved into an apartment over an hour away from the marital home. After his departure Ms. Seese remained in the marital home and had the locks changed. Defendant never resided at that house again. After the divorce was finalized on March 16, 2007, he returned once briefly to collect his belongings. In May 2007 Seese relocated from Connecticut to New Jersey.

On May 14, 2013, defendant received a notice of judgment from the clerk of the New Jersey Superior Court that default judgment had been entered against him in Maryland in July 2007. The judgment had been domesticated in New Jersey under the Uniform Enforcement of Foreign Judgment Act (UEFJA) N.J.S.A. 2A:49A-25.

Seese moved to vacate the judgment under Rule 4:50-1 contending that he had never been served with a summons or complaint as required under Maryland court rules and in accordance with due process. He provided a certification and documents in support of his arguments. The judge found that the affidavit of service from a private process server verified service on defendant1 and thus was prima facie evidence of valid service of process. The court did not find that defendant had rebutted the presumption by clear and convincing evidence and so therefore denied the motion.

Defendant filed a motion for reconsideration including, for the first time, a certification from his ex-wife.2 The court heard oral argument and then adjourned the motion, offering defendant the opportunity to pursue the vacation of the judgment in the Maryland courts. Additional information was provided to the judge by both parties. The court then entered an order on October 25, 2013 denying the motion for reconsideration. This appeal ensued.

Rule 4:50-1 allows for the granting of relief from a judgment or order "upon such terms as are just." In the context of an application to vacate a default judgment, the court's discretion must be liberally exercised. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994)(citing Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318-19, aff'd, 43 N.J. 508 (1964)). However, "[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).

When "a default judgment is taken in the face of defective personal service, the judgment is [generally] void." Jameson v. Great Atlantic and Pacif Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003)(quoting Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993)). A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice. Jameson, supra, 363 N.J. Super. at 425 (citing 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 Rule 4:50-1(d). Ibid.

Defendant denies having been served with the summons and complaint in this matter. Alliance contends defendant was properly served with process as required under Maryland rules of court and relies upon an affidavit of service executed by a private process server. The affidavit stated that defendant was personally served at the marital residence on March 5, 2007 at 6:10 p.m. and described general physical characteristics of the recipient of service.

This affidavit of service raises the burden placed on defendant. A "sheriff's return of service is part of the record and raises a presumption that the facts recited therein are true." Jameson, supra, 363 N.J. Super. at 426 (quoting Garley v. Waddington, 177 N.J. Super. 173, 180 (App. Div. 1981)). Because the . . . return facially indicates compliance with the pertinent service rule, it is prima facie evidence that service was proper." Ibid. Therefore, defendant must present evidence "tending to disprove" the return of service. N.J.R.E. 301. As noted by the trial judge, in order to establish the affidavit of service as false, clear and convincing evidence must be presented. Jameson, supra, 363 N.J. Super. at 426. If some evidence is presented tending to disprove the affidavit, but is not sufficient to establish that it is false, the presumption nevertheless is eliminated. "[A] valid presumption can be used to establish a prima facie case, but the presumption normally disappears in the face of conflicting evidence." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 301 (2003).

Once notified of the domesticated judgment, defendant filed a motion to vacate it, moving to collaterally attack the judgment due to defective service. Defendant presented a certification and supporting documents. He provided a lease showing he had rented an apartment in October 2006 and moved out of the marital home. An invoice was produced for a locksmith who changed the locks at the marital residence in December 2006. Defendant thereafter did not have keys nor access to his former home. He provided a copy of his Divorce Decree dated March 16, 2007. He produced leases for apartments rented in New Jersey after his move in 2007. He averred that his ex-wife was not home at the time of the alleged service. Finally, he stated that his physical description did not match any of the characteristics noted by the process server in the affidavit of service.

We find that at this juncture, defendant had produced sufficient evidence that "tend[ed] to disprove" the affidavit of service. N.J.R.E. 301. These documents created doubt as to defendant's actual receipt of process. Additionally, once apprised of the judgment, defendant moved quickly and diligently to vacate the default judgment. We agree with defendant that it was appropriate for the trial court to have held a plenary hearing to resolve the issue of service.

In light of the above conclusion, we do not find it necessary to address the additional arguments made respecting the motion for reconsideration. We do note that defendant s ex-wife provided additional evidence in her affidavit which raised questions as to the issue of service.

Finally, to allay any confusion as to the proceedings on remand, the "UEFJA requires neither the direct appeal of the default judgments in [Maryland], nor the posting of adequate security in New Jersey, before [defendant] may assert a due process challenge to the domesticated judgment[]." State of Me. v. SeKap, S.A. Greek Co-op. Cigarette Mfg., S.A. 392 N.J. Super. 227, 242 (App. Div. 2007). We remand the matter therefore for the judge to conduct a plenary hearing to decide defendant's jurisdictional challenge to the Maryland judgment based on lack of service.

Reversed and remanded for further proceedings consistent with this decision. We do not retain jurisdiction.

1 The affidavit stated that defendant had been personally served on March 5, 2007 at the marital home.

2 With his reply brief, defendant provided a second certification from his ex-wife. Both certifications corroborated information defendant gave about their living arrangement.