On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, DC-3300-97 and DJ-199754-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 15, 2007
Before Judges Stern and C.L. Miniman.
Defendant Isaac Wright seeks our review of an August 31, 2006, order denying his post-judgment application to set aside a judgment by default held by plaintiff Linda Dawson, dismiss her complaint and release funds to him that were held in escrow to satisfy Dawson's judgment. The issues in this appeal are best understood in the context of the rather convoluted procedural history of this case.
Dawson instituted an action in the Special Civil Part and advised the Special Civil Part clerk to attempt service of process on Wright in care of Tarheel Funding, 1976 Flatbush Avenue, Brooklyn, New York 11234-2818.*fn1 Sometime later a default was entered and Dawson then secured a $9,869.39 judgment by default against Wright on November 21, 1997, in connection with her claim that Dawson owed her a sum of money, apparently from a period of time when Wright lived in Dawson's home. Dawson docketed the judgment in the Superior Court on October 4, 2000. The total due on the judgment as of September 30, 2000, was $11,688.13.
On May 15, 2001, Dawson served a Notice of Motion for Order in Aid of Execution on Wright in care of Tarheel Funding, 1976 Flatbush Avenue, Brooklyn, New York 11234-2818 by certified and regular mail and on Frances A. Hartman, Esquire, 300 Chester Avenue, P.O. Box 630, Moorestown, New Jersey 08057 by regular mail only. Ms. Hartman was the attorney of record for Wright in his action against the State of New Jersey, the County of Somerset and others in connection with Wright's wrongful conviction of various drug offenses. Dawson certified that the complaint had been served on Wright at the Tarheel Funding address.*fn2
On June 22, 2001, Dawson secured an order forbidding disbursement of any funds that might be obtained by settlement or judgment in Wright's action. The order required that Dawson serve the order upon Wright and Hartman. Dawson certified that on July 11, 2001, she served the order forbidding disbursement of funds upon Wright in care of Tarheel Funding, 1976 Flatbush Avenue, Brooklyn, New York, by regular mail and upon Hartman by certified and regular mail. The certified mail was accepted by Hartman and the receipt was returned to Dawson. Dawson's certification of service was filed on July 18, 2001. On May 4, 2005, Dawson, upon learning that Wright's case had settled, contacted Hartman to verify that Dawson was entitled to disbursement. On June 6, 2005, Hartman contacted Dawson and sent a proposed consent order restraining the disbursement of only $13,595.45 rather than the full settlement of $412,500.
It was not until August 1, 2005, that Wright filed a motion to vacate the default judgment. In support of that relief Wright certified that he had never received a copy of the original complaint, he never lived at Tarheel Funding, a commercial establishment, and he never had any contact with Tarheel's owner after April 1997. He denied that Dawson served him with her 2001 motion to bar disbursement of funds and stated that Hartman did not respond to the motion because she was not representing him in Dawson's action. He also asserted that, after the press reported his 2005 settlement with the State, Dawson for the first time served Hartman with the order restraining disbursement of the funds.
The motion to vacate default was heard on November 10, 2005, but Hartman did not appear because she had no notice of the hearing date. Nonetheless, the trial judge vacated the judgment by default based on lack of in personam jurisdiction. He found that service was not properly made upon Wright because the summons and complaint had been mailed to him out of state rather than served personally. In the order entered by the judge, he permitted disbursement of all of the settlement funds except for $16,000, which was to be retained by Hartman pending further order of the court.
Dawson then filed a motion for reconsideration dated February 14, 2006. The certification supporting that motion is not in the record before us. The motion was served only on Hartman, who filed no opposition, claiming that she no longer represented Wright. On May 16, 2006, the court stated on the record that it was granting the motion because service by mail in New York was valid for purposes of in personam jurisdiction pursuant to R. 4:4-4(b)(1)(A). The court specifically stated that its decision of November 10, 2005, was incorrect and an order reinstating the judgment was entered on May 16, 2006. No appeal was taken from this order.
Two weeks later, Dawson filed a motion for turnover of funds and served the motion on Wright by certified and regular mail addressed to 1767 Old Whitesville Road, Moncks Corner, South Carolina, and upon Hartman by regular mail. Dawson certified that she served the May 16, 2006, order simultaneously with the turnover motion because she had only received it on May 25, 2006. She certified that the Postmaster in Moncks Corner indicated on a postal-address verification form that Wright still lived at that address. On June 12, 2006, the court ordered the release of funds from escrow and required Hartman to disburse $13,689.45 plus 56 cents per diem for each day after June 30, 2006, that the monies were not paid.
Thereafter, Hartman submitted an order on Wright's behalf that required Dawson to show cause why the orders of May 16, 2006, and June 12, 2006, should not be set aside, why the complaint should not be dismissed and why the funds held by Wright's attorneys should not be released to him. In support of the order to show cause, Wright certified to the essential facts respecting his relationship with Dawson, stated that he lived with her for a short period of time after he was released from prison on December 16, 1996, and denied owing any money to her during the period of time he lived in her home. He also certified it was not until "several years" after he left Dawson's home that he discovered that there was not only a suit against him but a judgment in favor of Dawson. He again denied receiving service of the original complaint or any of the motions filed prior to June 27, 2006. He asserted that he had not lived in Moncks Corner since he was eighteen and that Dawson was well aware that he did not live there.
Hartman certified that when she received Dawson's February 14, 2006, notice of motion for reconsideration she advised the court that she was not representing Wright in Dawson's action and that the ...