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Bernhardt v. Cafe

January 4, 2005


On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-8205-98.

Before Judges King, R. B. Coleman and Holston, Jr.

The opinion of the court was delivered by: Coleman, R. B., J.A.D.


Submitted October 14, 2004

Defendant Greg Kuni*fn1 appeals from a portion of an order dated September 12, 2003. That order granted defendant's motion to vacate a May 30, 2000 default judgment but it denied defendant's request to vacate the underlying default which was entered while defendant was serving in the United States Marine Corp. We hold that default should have been vacated under the New Jersey Soldiers' and Sailors' Civil Relief Act, N.J.S.A. 38:23C-1 to -26, and under the Federal Soldiers' and Sailors' Civil Act of 1940, 50 U.S.C.A. App. § 500 et seq.*fn2 Accordingly, we reverse and remand.

On October 25, 1996, defendant and several other individuals were involved in a fight at the premises of defendant Alden Café in Maple Shade, Burlington County. At that time, Kuni was stationed in Dover, New Jersey. Shortly before the two year anniversary of that event, on October 22, 1998, plaintiffs James Bernhardt and Paul Smith commenced a civil action, seeking to recover damages for injuries they allegedly sustained. By then Kuni had been deployed to Okinawa, Japan. Plaintiffs' summons and complaint were served on Kuni a year later on November 3, 1999, by delivering a copy at the Office of the Staff Judge Advocate at Camp LeJeune, North Carolina. Defendant received those documents but did not file an answer or otherwise appear in the civil action in New Jersey. Instead, he directed a letter to plaintiffs' counsel, stating that the matter [.arrowhorizex] apparently referring to the mutually filed disorderly persons complaints in municipal court [.arrowhorizex] had already been settled. In that letter, defendant further stated that he had acted in self defense and that he would resist any suit. He closed by stating that he would wait for further instructions from plaintiffs' counsel or the court.

On December 22, 1999, plaintiffs sent another letter to Kuni informing him that he had failed to answer the complaint by the deadline and requesting that he provide information about his parents' homeowners' insurance. That correspondence was sent to the address on the stationery that defendant had utilized in his letter to plaintiffs' counsel rather than to the place where service of process had been made, the office of the Staff Judge Advocate. Defendant denies that he ever received the letter. Defendant was stationed in California in January 2000.

On May 26, 2000, plaintiffs requested entry of default. The certification of counsel submitted in support stated erroneously that defendant was still stationed at Camp LeJeune, North Carolina. The certification also mistakenly asserted that defendant did not fall under the Soldiers' and Sailors' Relief Act. Again, defendant states he never received this mailing. He was deployed in Greece from May through June 2000.

On August 3, 2000, counsel for plaintiffs sent another letter to Kuni's letterhead address at Camp LeJeune to advise Kuni of the entry of default and that the matter would be coming up for trial in the next few months. Kuni denies having received the letter. He was deployed to California for training exercises in August 2000 and on his return from California in September 2000, his permanent place of duty was transferred from Camp LeJeune, North Carolina, to Yorktown, Virginia.

On November 10, 2000, counsel for plaintiffs prepared a certification in support of their request that judgment by default be entered against defendant. That certification indicated that counsel had contacted the JAG/DSN office and was told that defendant had not been on active duty and did not fall under the Soldiers' and Sailors' Relief Act. The certification indicated further that plaintiffs were advised that defendant could be contacted through the civil service processor or his base. Plaintiffs certified that they had been in touch with the civil service processor and were assured that defendant was receiving his correspondence. Finally, the certification disclosed that plaintiffs had settled with all the remaining defendants and that a stipulation of dismissal was circulating. The settlements with those defendants were for de minimus amounts.

On December 7, 2000, default judgment was entered against Kuni for $37,500 plus $4,091.60 in prejudgment interest and $180 in costs. On December 11, 2000, plaintiffs sent a letter to defendant at the Camp LeJeune address to inform him of the default judgment. Defendant stated he never received the letter. However, in January 2003, defendant did receive a Notice of Filing of Foreign Judgment from the court of York County in Virginia. He retained counsel and, on February 15, 2003, before being deployed to Spain, he executed a certification in support of a motion that was filed in Burlington County, New Jersey, on April 12, 2003 to vacate the default and default judgment. Plaintiffs opposed the requested relief, and the judge before whom the motion was originally returnable for oral argument requested that plaintiffs submit proof within ten days showing that defendant was given notice of the default judgment. In response, plaintiffs submitted a copy of the December 11, 2000 letter they had sent to Kuni at the Camp LeJeune address while he was stationed in Virginia. No affidavit or certification as to the mailing nor indication of a receipt or return of the certified mailing was provided in support. The motion was thereafter transferred to the judge who had earlier entered the default judgment. That judge heard oral argument on September 12, 2003, vacated the default judgment, and ordered a proof hearing on the issue of damages only. The judge stated his belief that the Soldiers' and Sailors' Act did not apply to causes of action that arise when the person is already in the military. The judge commented that defendant was aware of the civil action but had simply"sat on his duff." He declined to vacate the default.

Under the Federal Soldiers' and Sailors' Civil Relief Act of 1940 and the nearly identical state statute, default and default judgment should not have been entered or if entered under the facts of this case, they should have been vacated.

Although the relevant federal and state statutes use both mandatory and permissive language*fn3, the obvious purposes of the statutes and the circumstances of this case required that defendant's interests be protected during his active service in the military. He was stationed in various places, domestic and foreign, and was unable to defend himself properly because of his active military service. The statutes do not differentiate between claims that accrue before or during the person's active military service. The statutes are intended to protect persons from the litigation process while they are in the military service and for a brief time thereafter. That defendant had actual notice of the civil action is assumed for purposes of this appeal. That fact is not determinative.

At the outset, we note the procedural paradox of this case. The trial court found an adequate basis existed to grant relief from the default judgment but declined to set aside the underlying ...

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