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Acheampong v. Addae-Wusu

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 31, 2007

ALEX ACHEAMPONG, PLAINTIFF-RESPONDENT,
v.
YAW ADDAE-WUSU, WABASH AIRLINES A/D/B TRADE WINDS AIRLINES, DEFENDANTS-RESPONDENTS, AND DR. SAMUEL AKUOKU, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2789-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 5, 2007

Before Judges Lisa and Simonelli.

Defendant Dr. Samuel Akuoku appeals from the order of October 13, 2006, denying his motion for reconsideration of the order of February 17, 2006, denying his motion to vacate a default judgment entered on February 20, 2003. We reverse and remand.

I.

Plaintiff was an investor in a failed business venture known as Wabash Airlines, a/d/b Trade Winds Airlines. On August 23, 2002, plaintiff filed a complaint alleging he lost money as a result of a fraudulent scheme perpetrated by defendants.

Plaintiff served a summons and complaint on defendant, who resides in New York, by mail. Defendant received the summons and complaint on September 30, 2002, and took it to his attorney. Defendant's attorney assisted him in preparing a pro se answer and counterclaim, which contained lack of in personam and subject matter jurisdiction defenses. Defendant and his attorney mailed the answer and counterclaim to plaintiff's attorney, but did not file it with the court, or appear in court in response. Plaintiff's attorney received the answer and counterclaim, and filed an answer thereto on December 13, 2002.

On February 20, 2003, plaintiff's attorney filed a request to enter default, certification of service, and proof of amount due. Neither the court nor plaintiff's attorney has a copy of these papers, and plaintiff's attorney has no proof he served them on defendant or his attorney.

On February 20, 2003, the court entered default judgment "pursuant to [Rule] 4:43-1," but failed to set forth the amount of the judgment. A writ of execution shows the judgment amount as $219,243.20. Defendant never received a copy of the default judgment, and plaintiff's attorney has no proof he served it on defendant or his attorney. Defendant did not discover the default judgment until on or about July 21, 2005, when he received a letter from his bank advising it had placed a hold on his account after receiving a levy and writ of execution.

After negotiations with plaintiff's attorney to vacate the default judgment failed on November 2, 2005, defendant filed a motion to vacate based upon lack of proper service. On February 17, 2006, the trial court denied the motion, finding defendant failed to show exceptional circumstances. Defendant filed a motion for reconsideration on June 19, 2006. On October 5, 2006, the trial court denied the motion, finding it was not filed within twenty days, as required by Rule 4:49-2. This appeal followed.

II.

Rule 4:50-1 permits the court to "relieve a party . . . from a final judgment" for, among other things: "(a) mistake, inadvertence, surprise, or excusable neglect; . . . (c) fraud . . ., misrepresentation, or other misconduct of an adverse party"; or "(d) the judgment or order is void."

The decision whether to grant a motion to vacate a default judgment is left to "the sound discretion of the trial court," and will not be disturbed absent an abuse of discretion. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964). Trial courts more liberally grant motions to vacate default judgments. Cho Hung Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003) (citing Marder, supra, 84 N.J. Super. at 319). A motion to vacate a judgment that "is void and, therefore, unenforceable, it is a particularly worthy candidate for relief (R. 4:50-1(d)) provided that the time lapse [between the entry of the judgment and the motion to vacate the judgment] is not unreasonable and an innocent third party's rights have not intervened." Ibid. (citing Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 205 (App. Div. (1990)); Coryell, L.L.C. v. Curry, 391 N.J. Super. 72, 80 (App. Div. 2006). All doubt should be resolved in favor of the party seeking relief. Arrow Mfg. Co. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989) (citing Foster v. New Albany Mach. & Tool Co., 63 N.J. Super. 262, 269-70 (App. Div. 1960)). With these standards in mind, we address defendant's contention that the trial court erred in denying his motion to vacate the default judgment.

III.

We first address defendant's contention that service of the summons and complaint was improper and defective, rendering the default judgment void and unenforceable under Rule 4:50-1(d).

"'The requirements of the rules with respect to service of process go to the jurisdiction of the court and must be strictly complied with. Any defects . . . are fatal and leave the court without jurisdiction and its judgment void.'" Berger, supra, 244 N.J. Super. at 204 (quoting Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 493, cert. denied, 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952)). "Personal service is a prerequisite to achieving in personam jurisdiction[."] Ibid. "The primary method of obtaining in personam jurisdiction over a defendant in the State is by" personal service. R. 4:4-4(a). If a defendant cannot be personally served, in personam jurisdiction can be obtained by substituted mail service if an affidavit is filed that satisfies the requirements of Rule 4:4-5(c)(2), and states that "despite diligent effort and inquiry personal service cannot be made in accordance with [Rule 4:4-4(a)]." R. 4:4-4(b)(1). If service is made by mail: such service shall be effective for obtaining in personam jurisdiction only if the defendant answers the complaint or otherwise appears in response thereto, and provided further that default shall not be entered against a defendant who fails to answer or appear in response thereto.

[R. 4:4-4(c).]

Here, defendant resides in New York. No affidavit was filed to permit service of the summons and complaint by mail.

R. 4:4-4(b)(1). Thus, service by mail was improper, defective and deprived the court of in personam jurisdiction. Even if an affidavit had been filed, and even if defendant received the summons and complaint, because he never filed an answer to the complaint or appeared in response, the court did not obtain in personam jurisdiction over him. R. 4:4-4(c); Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 293-94 (App. Div. 2000). In addition, because service was improper, defendant had absolutely no obligation to file an answer to the complaint or appear in response. Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 311 (App. Div. 1997).

Because the court never obtained in personam jurisdiction over defendant, "the judgment is absolutely void and of no legal effect for any purpose." Garza v. Paone, 44 N.J. Super. 553, 557 (App. Div. 1957). This constitutes grounds for vacating the default judgment. R. 4:50-1(d).

IV.

We next address defendant's contention that the misrepresentations and misconduct of plaintiff's attorney are grounds for vacating the default judgment.

To request entry of default, the moving party must submit an attorney's affidavit reciting that the defendant had been properly served. R. 4:43-1. Here, service was improper. Thus, because plaintiff's attorney obtained the default, he had to have misrepresented to the court that defendant was properly served. Such misrepresentation constitutes grounds for vacating the default judgment. R. 4:50-1(c).

Plaintiff's attorney also did not send a copy of the entry of default to defendant or defendant's attorney, and he has no proof he served the default judgment on their attorney. R. 4:43-1; R. 4:43-2(c). Plaintiff's attorney also received defendant's pro se answer and counterclaim, and filed an answer thereto. He, thus, knew defendant intended to defend this action, and assert a lack of personal jurisdiction defense. He failed to bring this to the court's attention. Such misconduct constitutes grounds for vacating the default judgment. R. 4:50-1(c).

The order denying defendant's motion to vacate the default judgment is reversed, and the matter is remanded to the Law Division to afford defendant the opportunity to file his answer and counterclaim or otherwise appear in response to the complaint.

Reverse and remanded.

20071231

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