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Rosa v. Araujo

Decided: November 30, 1992.

ARTHUR ROSA, PLAINTIFF-RESPONDENT,
v.
ANTONIO ARAUJO, DEFENDANT-APPELLANT, AND RICHARD GOMES AND AUGUSTO GOMES, DEFENDANTS



On appeal from the Superior Court of New Jersey, Essex County, Law Division.

Petrella, Long and Keefe. The opinion of the court was delivered by Keefe, J.A.D.

Keefe

[260 NJSuper Page 460] Defendant Antonio Araujo appeals from the denial of his motion to vacate a default judgment entered against him by the Clerk of the Superior Court on July 10, 1990 in the sum of $32,838.56 plus costs. We affirm.

The complaint against Araujo and others was filed on May 25, 1990. The return of service stated that service was made upon him on June 4, 1990

at his usual place of abode, 304 Ridge Street, Newark, New Jersey, by leaving a copy thereof, together with a copy of the complaint and notice of lis pendens with a competent female member of his household of the age of 14 years or over, then residing therein Alexandra Solano, M.O.H.*fn1

No answer having been received from Araujo, plaintiff's attorney filed a request to enter default judgment, an affidavit of proof, and an affidavit of non-military service with the Clerk of the Court on July 9, 1990. A default judgment was subsequently entered by the Clerk on July 10, 1990.

On July 12, 1991 a motion to vacate the judgment was filed by an attorney other than the one now representing Araujo. The ground upon which the motion was made was "excusable neglect." See R. 4:50-1(a). The motion was supported by a certification signed by Araujo in which he essentially contended that the debt had been paid. The certification did not inform the court why an answer to the complaint had not been filed. The motion resulted in an order issued on August 9, 1991, denying the relief requested. No appeal was taken from that order.

On November 27, 1991 defendant's current attorney filed another motion to vacate the July 10, 1990 default judgment. For the first time, Araujo contended that he was not served in accordance with the provisions of R. 4:4-4(a)(1). He also contended for the first time that the affidavit of proof upon which the judgment was entered was "not legally sufficient pursuant to R. 4:43-2," and that an affidavit of non-military service was not filed pursuant to R. 1:5-7. The motion was accompanied by the certifications of Araujo, his current attorney, the sheriff's officer who effected the service, Alexandra Solano and Jack J. Soriano, the attorney who represented Araujo when suit was

instituted. The motion was heard on the papers and resulted in the entry of the order from which Araujo now appeals.

On appeal, Araujo contends that the trial Judge erred because: 1) the default judgment entered against him was void for lack of in personam jurisdiction; 2) the affidavit of proof in support of the default judgment was insufficient under the rule; 3) the trial Judge should have exercised the broad discretion afforded by the provisions of R. 4:50-1(f) to vacate the judgment; and 4) plaintiff's failure to file a certification addressing the merits of the underlying claim was an improper response to the merits of the motion.

Initially, we observe that the denial of Araujo's first motion to vacate the default judgment was a final order from which defendant had the right to appeal. See Haber v. Haber, 253 N.J. Super. 413, 601 A.2d 1199 (App.Div.1992). Defendant's attempt to relitigate the same issue under R. 4:50-1 by simply raising different arguments arising out of the same facts would ordinarily be precluded on principles of finality. However, because this appeal raises a facial question of due process relative to the court's jurisdiction over the defendant, we will address that issue on its merits.

We accept for the purpose of this opinion, that Alexandra Solano was not a member of the defendant's household on the date service was effected by the sheriff's officer. Thus, service was not made in accordance with the provisions of R. 4:4-4(a)(1). Generally, where a default judgment is taken in the face of defective personal service, the judgment is void. See Garza v. Paone, 44 N.J. Super. 553, 131 A.2d 32 (App.Div.1957). However, not every defect in the manner in which process is served renders the judgment upon which the action is brought void and unenforceable. See DeGroot v. Camarota, 169 N.J. Super. 338, 404 A.2d 1211 (App.Div.1979). The requirement that a court ...


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