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Degroot, Kalliel, Traint & Conklin, P.C. v. Camarota

Decided: July 3, 1979.


On appeal from Superior Court, Law Division, Ocean County.

Allcorn, Seidman and Botter. The opinion of the court was delivered by Seidman, J.A.D.


In this matter, involving a lawsuit instituted in this State by a firm of Michigan attorneys to recover on a default judgment obtained against defendant for professional services rendered in Michigan, and a counterclaim filed by defendant alleging legal malpractice in connection with those services, defendant appealed from a summary judgment dismissing the counterclaim entered on a holding by the trial judge that the counterclaim was barred by the Michigan statute of limitations. Defendant then moved for relief under R. 4:50 on the ground that the counterclaim was in the nature of a "recoupment" action not barred by the Michigan statute. The motion was denied and this appeal followed.

Since the summary judgment disposed only of the counterclaim, the appeal was interlocutory. However, we granted the necessary leave to appeal nunc pro tunc , and we solicited letter memoranda from counsel on whether, assuming the counterclaim was governed by the New Jersey six-year statute of limitations instead of Michigan's two-year statute, plaintiff's judgment would nevertheless be res judicata of the cause of action set up in the counterclaim. Defendant's

response raised the issue, among other things, that the Michigan judgment was a nullity for lack of in personam jurisdiction over him, in that service upon him had not been made in accordance with the "long-arm service" order of the Michigan court.

It is our view that the jurisdictional attack on the Michigan judgment would have to be resolved preliminarily by the trial court and a determination made whether full faith and credit would be given to that judgment. Accordingly, in an unreported opinion filed December 29, 1978, we remanded the matter to the trial court for a hearing on that issue, to be followed by findings of fact and conclusions of law pursuant to R. 1:7-4. We retained jurisdiction. Such hearing was held, the trial judge concluded that in personam jurisdiction was obtained, and final judgment was entered in favor of plaintiff in the amount of $4,141.64 together with interest and costs. The appeal as originally filed will be deemed to include this judgment.

Defendant maintains in a supplemental letter memorandum that since the Michigan order provided for service upon the defendant "by certified mail, deliver to addressee only," and defendant did not personally receive the mail or sign for the summons and complaint, the order of the court was not followed, and, therefore, service was not effected. The trial judge rejected the same argument below. We agree with his determination essentially for the reasons expressed by him in his comprehensive oral opinion rendered at the close of the hearing.

The parties stipulated the following facts at the hearing: The summons and complaint were sent by certified mail addressed to defendant at a postoffice box number in Toms River. The box number was in the name of International Bancorp. [of which defendant was a principal]. A postal clerk placed defendant's address on the envelope, which ultimately was delivered to defendant's residence. The return receipt was signed by defendant's wife, who placed the envelope on defendant's desk in their home. Defendant

referred the summons and complaint to an attorney in this State, who wrote to plaintiff acknowledging that service had been effected upon his client in New Jersey and requesting a short extension of time for the filing of answer by Michigan counsel to be retained for that purpose. No answer was filed and defendant first became aware of the default judgment when the present suit was instituted.

We are completely satisfied that since defendant concededly received the summons and complaint, was aware of the nature of the lawsuit and, in fact, turned it over to an attorney, service was made upon him in a manner that satisfied the requirements of due process. The trial judge correctly held that the Michigan court had therefore obtained in personam jurisdiction over defendant and that the judgment obtained thereafter was entitled to full faith and credit. O'Connor v. Abraham Altus , 67 N.J. 106, 128 (1975).

We now address the issue of whether defendant may maintain his counterclaim notwithstanding the entry of the default judgment. To resolve that issue, we need not determine whether the trial judge correctly applied the shorter Michigan period of limitations in barring the counterclaim, because in our view, even if the counterclaim was ...

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