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Welsh v. X-Clusive Vehicle Enhancements

September 19, 2007

JAMES P. WELSH AND LINDA J. URRUTIA, PLAINTIFFS-RESPONDENTS,
v.
X-CLUSIVE VEHICLE ENHANCEMENTS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, DC-5034-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2007

Before Judges Coburn and Chambers.

In this Special Civil Part case, defendant appeals from the denial of its motion to vacate a default. Defendant was not served with the complaint in accordance with the court rules, although it did receive a copy of the complaint from the defense attorney in the mail. When defendant failed to file a timely answer, plaintiffs obtained a default. Defendant's motion to vacate the default and file an answer, made a few months later, was denied by the court below. We reverse.

This lawsuit arises out of a bailment relationship. Plaintiffs had left their vehicle at the defendant's place of business in order to have defendant sell it on their behalf. Plaintiffs contend that the vehicle was left with defendant in good operating condition with no problems involving the clutch. When the vehicle failed to sell, plaintiffs retrieved the vehicle and discovered that the clutch had been damaged. Defendant maintains that this clutch problem was a pre-existing condition, present when it took possession of the vehicle.

On or about May 23, 2006, plaintiffs filed a complaint in the Special Civil Part seeking recovery in the sum of $1,904.44, representing the cost of repairing the clutch, and treble damages and attorney fees under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -166.

Under the Rules of the Special Civil Part, the court serves the complaint by certified and ordinary mail to the address of defendant which is provided by plaintiff. R. 6:2-3(d)(1). In this case, plaintiffs' attorney provided the court with the address where defendant's business is located, namely, 534 Wrightstown-Sykesville Road, Wrightstown,*fn1 New Jersey. However, defendant did not receive mail at this address. Defendant's mailing address was a post office box. As a result, defendant did not receive the service of process sent by the court.

Plaintiffs' counsel was aware, when he gave the court defendant's street address, that defendant did not receive mail at that address and that the post office address was the proper address. At oral argument before the motion judge, he explained that, before filing the complaint, he wrote to defendant at the street address and the letter came back. As a result, he called defendant's place of business and was advised that it did not receive mail at the street address, rather its mail was received at a post office address which was provided to him. He stated that he provided the street address to the court anyway, because he had some concerns about the veracity of defendant's explanation that it did not receive mail at the street address and he thought there would be difficulties in effectuating service on a post office box. We note, however, that the court rules governing the Special Civil Part expressly permit service by mailing to a post office box. R. 6:2-3(d)(4).

On May 24, 2006, plaintiffs' counsel did send a courtesy copy of the complaint to the defendant, at both its street and post office address, and advised defendant that the complaint had been filed against it. Defendant acknowledges that it received a copy of the complaint from plaintiffs' counsel at its post office address. However, defendant explains that it was awaiting a copy of the docketed complaint before responding. It does not appear that defendant received a summons. The next communication defendant received on the matter was a copy of plaintiffs' notice to enter a default which plaintiffs' counsel sent to the court on or about July 24, 2006, with a copy to defendant at its post office address. Default was entered.

On October 31, 2006, defendant moved to vacate the default and sought permission to file an answer. After hearing oral argument, the motion judge noted that, while she could be convinced that there was a meritorious defense, she found no excusable neglect, because defendant was aware of the litigation and failed to respond. An order was entered on November 3, 2006, denying the motion.

While the record below, including the order denying defendant's motion and appellate briefs, refers to the entry of a default judgment, in fact, no default judgment has been entered pursuant to R. 4:43-2. Rather only a default was entered in accordance with R. 4:43-1. The motion filed below properly sought vacation of the default. At oral argument, references were made to a default judgment, and this mistake continued into the order and the appellate papers before this court. However, the issue is whether the default should have been vacated, not a default judgment.*fn2

Defendant maintains that since the service was defective, the court below should have granted its motion. Plaintiffs, on the other hand, contend that the motion was correctly denied because the error in service upon defendant constituted a mere technical violation of the rules, that defendant had actual knowledge of the lawsuit, that the address served was the one appearing on defendant's website, and that the service in this case did not violate due process, relying on Rosa v. Araujo, 260 N.J. Super. 458 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993).

This court need not reach the constitutional question of whether the service here violated principles of due process; the case can be resolved based on the application of the court rules. Courts will not reach a constitutional issue if the matter can be resolved on another legal basis. N.J. Div. of Youth & Family Servs. v. S.S., 187 N.J. 556, 564 (2006). Where the service of a defendant meets due process requirements, a default judgment may still be set aside for ...


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