October 31, 2007
NEW JERSEY RE-INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
PROSPER SAINTPHARD, ANGELEINE SAINTPHARD AND LOVELY SAINTPHARD, DEFENDANTS-APPELLANTS, AND ANGELA SAINTPHARD, DEFENDANT, AND THE CENTRAL HEALTH GROUP, P.C., ALLIED CHIROPRACTIC AND REHABILITATION CENTER, P.C., SHINE MEDICAL P.C., NALINI PRASAD, M.D., JERALD P. VIZZONE, D.O., CLIFFSIDE PARK IMAGING & DIAGNOSTIC CENTER, L.L.C., NEWARK IMAGING CENTER, P.C., BLOOMFIELD DIAGNOSTIC CENTER, LLC A/K/A OPEN MRI OF BLOOMFIELD, AND OPEN MRI & IMAGING OF ROCHELLE PARK, P.A. A/K/A OPEN MRI AND IMAGING OF ROCHELLE PARK, INC., DEFENDANTS IN INTEREST.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-2685-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges Weissbard and S.L. Reisner.
Defendants Prosper Saintphard (Prosper), Angeleine Saintphard (Angeleine), and Lovely Saintphard (Lovely), appeal from an order denying their motion to vacate a default judgment obtained by plaintiff New Jersey Re-Insurance Company (NJ Re). We affirm as to Lovely and Angeleine but remand for further proceedings as to Prosper.
On October 6, 2005, NJ Re filed a verified complaint against Prosper, Lovely, Angeleine and Angela Saintphard, alleging that defendants engaged in insurance fraud, asserting a breach of contract claim and seeking declaratory relief. More specifically, the complaint asserted that the defendants "submitted claims to NJ Re for insurance benefits, either directly or by way of assignment to various medical providers, in relation to injuries allegedly sustained by defendants as a result of their operation of and/or occupancy in motor vehicles during three motor vehicle accidents that allegedly occurred" between May 20, 2003 and December 5, 2003. After the first motor vehicle accident (MVA) NJ Re paid nearly all of defendants medical providers, but denied most of the medical providers' requests for PIP benefits in connection with the second and third MVAs.
Due to multiple pending arbitration hearings and the frequency of defendants' accidents in such a short time span, NJ Re requested that Angeleine, Prosper and Angela appear for an Examination Under Oath (EUO). Prosper appeared for his EUO on March 23, 2005 in connection with MVA III; however, Angela did not appear for her scheduled EUO in connection with MVA III. On April 27, 2005, Prosper appeared for a second EUO in connection with MVA II. Angeleine agreed to appear on the same date for an EUO but failed to do so. Based on the EUOs, "NJ Re determined that defendant Prosper made numerous knowing and material misrepresentations in support of his and his family members' claims for PIP benefits." Furthermore, NJ Re alleged that this information led it to investigate if MVA I, MVA II or MVA III actually occurred and whether or not the accidents were intentionally staged. NJ Re claimed that after the three MVAs, defendants assigned their rights to PIP benefits to various medical providers who later sought and/or obtained insurance benefits from NJ Re.
Attached to the complaint were three transcripts of sworn testimony by Prosper and two arbitration resolutions denying insurance benefits to defendants' assignees due to a lack of causal relation between defendants' injuries and any accident. Additionally, the complaint named several Defendants In Interest, described as "alleged medical providers who have in the past or may in the future bring claims for personal injury protection ('PIP') benefits, as assignees of one or more defendants, under personal automobile insurance policies issued by NJ Re."
On November 7, 2005, four separate affidavits of service were filed purporting to show that each defendant had been served process. All four affidavits recited that process was served on October 30, 2005 between 12:10 p.m. and 12:15 p.m. at 7 Essex Street, Irvington, New Jersey.
The affidavit of service for Lovely indicated that she was "Served Successfully" and the process server "Delivered a copy to him/her personally." The affidavit contained the following information in the section entitled "Description of Person Accepting Service": Sex: F Age: 21-35 Height: 5'0"-5'3" Weight: 100-130 lbs. Skin: Black Hair: Black.
The affidavit of service for Angela indicated that she was "Served Successfully" and the process server "Delivered a copy to him/her personally." The affidavit contained the following information in the section entitled "Description of Person Accepting Service": Sex: F Age: 21-35 Height: 5'0"-5'3" Weight: 100-130 lbs. Skin: Black Hair: Black.
The affidavit of service for Angeleine indicated that she was "Served Successfully" and the process server "Delivered a copy to him/her personally." The affidavit contained the following information in the section entitled "Description of Person Accepting Service": Sex: F Age: 21-35 Height: 5'4"-5'8" Weight: 100-130 lbs. Skin: Black Hair: Black*fn1 .
The affidavit of service for Prosper indicated that he was "Served Successfully" and the process server "Left a copy with a competent household member over 14 years of age residing therein." The "Name of Person Served and relationship/title" read "Prosper Saintphard" and "Self," respectively. The affidavit contained the following information in the section entitled "Description of Person Accepting Service": Sex: F Age: 21-35 Height: 5'0"-5'3" Weight: 100-130 lbs. Skin: Black Hair: Black.*fn2
When defendants failed to answer the complaint, NJ Re requested entry of default and copied defendants on the request. On December 13, 2005, the court entered default against defendants and NJ Re sent notice of default to each defendant. Thereafter, the court requested a proof hearing. NJ Re confirmed the court's request for a proof hearing and sent notice via regular mail to the defendants, using the same address where service had purportedly been made.
The defendants still did not respond; however, on May 1, 2006, two of the defendants, Prosper and Angeleine, appeared at the proof hearing without counsel. At the hearing, Prosper acknowledged that he and Angeleine received notice of the hearing, otherwise they would not have been in attendance. The judge informed defendants that because they defaulted they could not present any defenses or testimony, although they could cross-examine witnesses. Prosper then attempted to express a lack of familiarity with the judicial process. The judge strongly disagreed with Prosper's claim, stating that after having read the papers, he did not believe that Prosper lacked an understanding of the system. Rather, the judge said that he believed "[Prosper] understand[s] how to work the system." The court denied Prosper's request to reschedule the hearing, noting that he could make an application later. Moving forward, the court permitted NJ Re to present its proofs.
NJ Re called three witnesses who explained their reasons for concluding that defendants committed a fraud. Prosper and Angeleine had an opportunity to cross-examine the witnesses but the court interrupted them after they began to make statements instead of asking questions. After hearing the proofs, the court held that NJ Re provided sufficient evidence of insurance fraud and entered judgment in favor of NJ Re. Prosper then asked for the court's permission to hire a lawyer and the court granted him permission. Next, the court asked defendants questions concerning their address, occupation and employers, and their current usage of motor vehicles. At the request of NJ Re's counsel, the court read defendants' license numbers into the record because the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:30A-1 to -30 (as amended) and N.J.S.A. 39:6A-15, necessitate a license suspension upon a finding of fraud.
Following the hearing and entry of default, NJ Re requested a pre-trial conference to address how to proceed against the remaining Defendants In Interest. The court scheduled a case management conference for June 7, 2006. On May 23, 2006, Joel A. Bacher, Esq. notified NJ Re and the court that he now represented the defendants and intended to file a motion to vacate the defaults. Bacher participated in the June 7, 2006 pre-trial conference and the majority of the conference addressed the timing of defendants' anticipated motion. The next day, the court entered final judgment against all four defendants, jointly and severally, in the following amounts: $168,621.10 against Prosper; $168,621.10 against Angeleine; $5,677.54 against Lovely; and $12,159.04 against Angela.
Subsequently, defendants moved to set aside the default judgment. In support of their motion to vacate, the defendants submitted a certification stating that "[n]one of the defendants was ever served with a summons or complaint in this matter prior to the default hearing on May 1, 2006." The defendants maintained that the letter advising them about the default hearing was the first notice any of the defendants received regarding this action. In response, NJ Re relied on the affidavits of service discussed above, as well as copies of letters mailed to defendants prior to the entry of the default judgment. Additionally, NJ Re submitted a certification by one of its counsel attesting that he had a conversation with an attorney who had represented the defendants in MVA II. The certification included a memo describing a conversation between NJ Re's attorney and defendants' attorney; however, the memo did not confirm whether defendants' attorney received the complaint or whether Prosper or NJ Re's counsel sent him the complaint.
During argument of the motion to vacate the default judgment, defendants' newly retained counsel attempted to distinguish his clients from typical absentee defendants. Counsel noted that Prosper appeared for the May 1, 2006 proof hearing and that the affidavits of service contained discrepancies. Assuming arguendo that the affidavits of service were entirely false, the court found that the indicia of service demonstrated that defendants were sufficiently served. Also, the court questioned why counsel focused his argument on R. 4:50-1(f)*fn3, when the basis of his argument implicated R. 4:50-1(d).*fn4 As a result, counsel adopted the R. 4:50-1(d) argument while still arguing for relief under R. 4:50-1(f). The court noted that normally, a plea of mercy to set aside a judgment would be sufficient, but in this case, defendants failed to present any compelling evidence. Ultimately, the court denied defendants' motion to vacate the default judgment. On November 8, 2006, NJ Re stipulated to relieve Angela from the judgment and voluntarily dismissed its claims solely against her.
On appeal defendants present the following arguments:
POINT I: THE TRIAL JUDGE ABUSED HIS DISCRETION BY REFUSING TO POSTPONE THE PROOF HEARING.
A. The Denial Was Infected By Partiality.
B. The Judge Failed To Protect The Saintphards' Rights.
C. The Judge Allowed a Concern For Convenience To Override His Duty To Ensure That Justice Is Done.
POINT II: THE MOTION JUDGE ERRED BY REFUSING TO VACATE THE DEFAULT JUDGMENT.
A. The Motion Should Have Been Granted Under Subsection (d).
B. The Motion Should Have Been Granted Under Subsection (f).
We conclude that the arguments raised in defendant's Point I, including its three sub-parts, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendants argue that the affidavits of service contain inconsistencies and factual errors negating proper service, thereby requiring the court to set aside the default judgment.
Defendants contend that the evidence, consisting of the errors and defendants' certification that they did not receive service, rebuts the presumption of proper service resulting from the process server's affidavit of service. In addition, defendants maintain that subsequent letters and faxes sent to them by plaintiff's attorney did not cure defective service.
Plaintiff asserts that defendants failed to meet their burden in challenging proof of service. Plaintiff contends that it effected proper service and that any inconsistencies in the affidavits of service are inconsequential. Also, plaintiff points to other circumstantial evidence, such as the defendants' appearance at the proof hearing and the receipt of other documents sent to the same address where service was allegedly completed, to demonstrate that defendants were properly served.
As a general rule, motions for relief from judgment pursuant to R. 4:50-1 "are addressed to the sound discretion of the trial court, whose determination will be left undisturbed unless it results from a clear abuse of discretion." Pressler, Current N.J. Court Rules, comment 1 on R. 4:50-1 (2007), and cases cited therein. Motions to vacate default judgments, however, are "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Id. at comment 2, and cases cited therein.
Judgments that are void, and thereby unenforceable, are particularly worthy candidates for relief. Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003).
Rule 4:50-1(d) provides that the court may relieve a party from a final judgment if the judgment is void; however, the "mere fact that a judgment is void" does not automatically entitle a moving party to relief. Pressler, supra, comment 5.4.1 on R. 4:50-1 (2007). If a court is satisfied that initial service of process was so defective that the judgment is void, ordinarily, the judgment should be set aside. Berger v. Paterson Veterans Taxi Service, 244 N.J. Super. 200, 205 (App. Div. 1990). A default judgment is void "when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice." Jameson v. Great Atlantic and Pacific Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003). Even in a situation where a defendant had actual knowledge of the suit, a substantial deviation from the service of process rules requires relief from a default judgment. Sobel v. Long Island Entertainment, 329 N.J. Super. 285, 293-94 (App. Div. 2000). If a judgment is void due to defective service the defendant is not required to present a meritorious defense in order to vacate the judgment. Ibid.
According to Rule 4:4-4(a)(1):
[t]he primary method of obtaining in personum jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State . . . by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household . . . residing therein.
The person serving process shall make a return by filing an affidavit establishing proof of service. R. 4:4-7. Return of service creates a "presumption that the facts recited therein are true." Garley v. Waddington, 177 N.J. Super. 173, 180 (App. Div. 1981). Although this presumption may be rebutted, it may only be rebutted by clear and convincing evidence that the return is false. Ibid. A defendant's uncorroborated testimony alone cannot overcome the presumption raised by a return of service. Goldfarb v. Roeger, 54 N.J. Super. 85, 89-90 (App. Div. 1959) (citing 72 C.J.S. Process § 102b, p. 1145). The party seeking to vacate the default judgment has the overall burden of demonstrating that its failure to answer should be excused. Jameson, supra, 363 N.J. Super. at 425. If a party produces evidence tending to disprove the return, but the evidence is not sufficient to demonstrate that the return is false, the presumption disappears. Id. at 426-27. Also, a defect in service cannot be cured by transmission of notice by alternative means. Sobel, supra, 329 N.J. Super. at 293 ("it is insufficient that a defendant somehow receive a copy of the summons and complaint within sufficient time to file an answer").
In Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 344 (App. Div. 1993), we found that the trial judge properly denied defendant's motion to vacate a default. Defendant failed to demonstrate the falsity of the sheriff's affidavit of service by clear and convincing evidence. In that case, the sheriff served defendant's resident housekeeper at his usual place of abode. Ibid. Defendant asserted that his housekeeper did not give him the service papers or mention that she had received the papers. Ibid. Defendant's assertion failed to meet his burden and we had little doubt that the sheriff properly effectuated service upon the defendant. Ibid. Thus, we affirmed the trial court's denial of defendant's motion to vacate. Ibid.
Conversely, in Jameson, we found that the defendant's uncontested evidence in conjunction with the reasonable inferences that could be drawn from the evidence, disproved the presumption, even if the evidence could not demonstrate that the return of service was false. Jameson, supra, 363 N.J. Super. at 428. As a result, the burden remained on the plaintiffs to prove that the defendants had been served. Id. at 429.
The Jameson defendant initially attempted to rebut the presumption by offering an attorney certification stating that the person who received service of process was not authorized to do so. Id. at 427. We found that the certification alone could not prove that the affidavit of service was false; however, additional evidence tended to disprove the sheriff's return. Id. at 428. The additional evidence included: 1) serving a large supermarket corporation with a New Jersey corporate office by leaving papers with a cashier in a local market; and 2) the speed and diligence of the defendant in relation to its attempt to vacate the default judgment once it learned of the pending lawsuit. Ibid. We concluded that service was not proper, despite the sheriff's affidavit of service. Id. at 430.
Similarly, in Garley v. Waddington, 177 N.J. Super. 173, 181 (App. Div. 1981), we found that plaintiff's claims of defective service established a genuine issue of material fact, thereby precluding the trial court from entering summary judgment against either party. In Garley, the sheriff delivered service papers to an address believed to be the plaintiff's and left the papers with an individual identified as plaintiff's "cousin," according to the sheriff's affidavit. Id. at 178. Through a certification, plaintiff's parents stated that no one other than themselves and plaintiff's brother resided at the address where the sheriff delivered the papers. Ibid. The trial court, accepting the certification as true, concluded that "service of process on a cousin at that address was invalid as a matter of law." Ibid.
We reversed, noting that "different minds may come to different conclusions" as to whether a member of plaintiff's family was properly served. Id. at 181. We stated that even if plaintiff's proofs were clear and convincing to sufficiently rebut the truth of the sheriff's statement that he served plaintiff's "cousin," the proofs "were not sufficient to rebut the fact that another member of [plaintiff's] family, such as his brother . . . might have accepted service for [plaintiff]." Ibid. We continued, "that the reference to 'cousin' was either a mistake by the deputy sheriff or a misrepresentation by the person accepting the service as to his relationship with [plaintiff]." Ibid. Nevertheless, the proofs created genuine issues of material fact that required a plenary hearing. Id. at 182.
In the present case, the record supports a finding that Lovely cannot overcome the burden created by the sheriff's affidavits of service. As previously stated, the return of service created a presumption that service was proper and can only be rebutted by clear and convincing evidence. Garley, supra, 177 N.J. Super. at 180. Lovely presented a certification that she never received a summons and complaint. As the Goldfarb court noted, uncorroborated evidence alone cannot overcome the presumption of return of service. Goldfarb, supra, 54 N.J. Super. at 89-90. The sole piece of evidence offered by Lovely was her uncorroborated certification. In fact, defendants fail to argue on appeal that service was insufficient as to Lovely. Unlike Prosper and Angeleine, there are no inconsistencies or errors on the affidavit of service as to Lovely.
The record likewise supports a finding that Angeleine cannot overcome the burden created by the sheriff's affidavits of service. Angeleine presented a certification that she never received a summons and complaint. However, as noted above, uncorroborated evidence alone cannot overcome the presumption of return of service. In addition to her certification, the record shows that the affidavit of service for Angeleine contained an error. The error, describing her between the ages of 21-35 when she was actually 42 years old at the time of service, is minor, not rising to the level of a substantial deviation as described in Sobel, supra, 329 N.J. Super. at 293-94. Nor does it rise to the level of the deviation in Garley, supra, 177 N.J. Super. at 181. There, the court found that describing the recipient as the plaintiff's "cousin" when the plaintiff's family certified that no such person resided at the address for service sufficed to rebut the presumption. Id. at 181-82. In this case, Angeleine's certification merely claims that she did not receive proper service. In contrast to Garley, Angeleine does not claim that the person accepting service did not reside in her home. Angeleine merely asserts that the error as to her age defeats the presumption. We reject that assertion.
Furthermore, circumstantial evidence supports the trial court's decision. Although alternative means of notice will not cure a service of process defect, Sobel, supra, 329 N.J. Super. at 293, the surrounding circumstances of this case decrease the credibility of the statements made in Angeleine's certification. First, Angeleine appeared at the proof hearing. Second, notice of the hearing was mailed to the same address indicated on the return of service. Ibid. Also, the entry of default was mailed to the same address. Ibid. Because Angeleine could not overcome the burden created by return of service, the decision of the trial court was correct.
However, the record supports a finding that Prosper overcame the burden created by the sheriff's affidavit of service. Although the discrepancy on Prosper's affidavit of service may be due to the sheriff mistakenly writing that the person he served was Prosper, when in actuality he served one of Prosper's female family members, this discrepancy constitutes a substantial deviation. The error is more egregious than the error leading to reversal of summary judgment in Garley. In the present case, the affidavit of service indicated that the person accepting service was a competent household member, described as a female, yet the "Person Served and relationship/title" was Prosper himself. The affidavit is inconsistent on its face; it is impossible to have personally served Prosper if service was left with a female household member.
In Garley, the sheriff mistook the relationship of the person accepting service while in the present case, the sheriff indicated that the person accepting service was of the opposite sex of the person purportedly served. Additionally, the sheriff in this case failed to adequately indicate whether delivery was made personally to Prosper or to a competent member of his household. In contrast, it was clear in Garley that a person other than the defendant received process. The mistakes in the present case are more egregious than the mistakes in Garley. As a result, we conclude that the denial of Prosper's motion to vacate the default judgment was erroneous. The case must be remanded to determine whether Prosper received proper service.
Rule 4:50-1(f) is a "catchall" provision that allows courts to relieve a party from a final judgment for "any other reason justifying relief from the operation of the judgment." Motions under subsection (f) are "addressed to the broad discretion of the trial court." Court Inv. Co. v. Perillo, 48 N.J. 341 (1966). "That discretion is . . . to be exercised according to equitable principles, and the decision reached by the trial court will be accepted by an appellate tribunal in the absence of an abuse of its discretion." Ibid. The Court articulated that: "the very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." Ibid. Additionally, subsection (f) requires defendants to demonstrate that their failure to appear was excusable and that they had a meritorious defense. Pressler, supra, comment 4 on R. 4:50-1.
Defendants rely on our decision in Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92 (App. Div. 1998), for the proposition that "if 'there is at least some doubt as to whether the defendant was in fact served with process, the circumstances require a more liberal disposition of' the motion." Id. at 100 (citing Goldfarb, supra, 54 N.J. Super. at 92; and Garley, supra, 177 N.J. Super. at 181).
In Davis, the plaintiff served a copy of the summons and complaint upon the assistant manager of a bank at a branch office. Id. at 95. The assistant manager failed to forward the papers to the appropriate person in the principal office. Ibid. Consequently, defendant did not file an answer and plaintiff obtained a default judgment. Ibid. Once the defendant learned of the suit, it quickly moved to vacate the default judgment. Ibid. In vacating the judgment against defendant, we emphasized that "there was undeniably doubt about defendants' actual receipt of the process." Id. at 100. The underlying facts of Davis presented a situation where in the interest of justice, defendants should have been heard on the merits.
The circumstances in the present case do not rise to the level of Davis; therefore, vacation under subsection (f) is not warranted. The present situation lacks the "undeniable doubt of actual receipt" that existed in Davis. As discussed in the previous section, Lovely did not provide any evidence that she did not receive service of process, other than her certification. Lovely did not offer any evidence demonstrating that her situation is exceptional.
The same is true for both Angeleine and Prosper. In addition to their certifications, Angeleine and Prosper point out the discrepancies on their affidavits of service; however, such errors do not rise to the level of undeniable doubt exhibited in Davis. At the hearing, defendants' counsel could only claim that the "the interests of justice would be best served" if the court set aside the default, without articulating a reason why the interests of justice would be served. Defendants' efforts in obtaining counsel and making certifications, even in conjunction with the errors on the affidavits, do not demonstrate that the situation is exceptional. In fact, as the motion judge agreed, the evidence in this case tends to suggest that defendants were served process. Aside from what appears to be an error on the return of service that may provide relief under (d), there is nothing warranting individual relief for Prosper or Angeleine under subsection (f).
Most importantly, none of the defendants offer a meritorious defense as required by R. 4:50-1(f). Again, the defendants' attorney argued that justice is best served by vacating the judgment; however, he admitted that "there may not be any real concrete reason" for the court to take this action. He further stated that "[t]here's no fact here that I can bring before the Court that's going to shape this case." In addition, defendants failed to mention any defense in their certifications. The certifications merely state that the defendants were not served and do not address the underlying merits of the case. Ibid.
Finally, the present case is distinguishable from Morales v. Santiago, 217 N.J. Super. 496 (App. Div. 1987). In Morales, the court vacated a judgment following a proof hearing because the plaintiff lacked critical evidence concerning the merits of his case. Id. at 504. In the current case, NJ Re's proofs, including testimony of three witnesses, adequately supported the merits of its case. In contrast to the facts of Morales, the case on appeal presents a situation in which the defendants, not the plaintiff, cannot prove the merits of their case. In the present case, plaintiff presented its proofs adequately and defendants failed to proffer a meritorious defense. Thus, Morales does not offer support for the defendants' argument.
Affirmed as to Lovely and Angeleine Saintphard; remanded for a hearing as to Prosper Saintphard.