On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-005892-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Graves.
Defendant Tosh L. Henderson appeals from an order denying his application to vacate a default judgment entered on August 4, 2006, in the amount of $152,875. Defendant claims that he was never served with the summons and complaint and that he first learned of the default judgment from Doug Malcolm, an attorney who represented him in connection with a piece of real estate he tried to purchase. We reverse and remand.
Between November 23, 2004, and September 20, 2005, defendant Henderson was employed by plaintiff Innovative Engineering, Inc., a telecommunications service provider. Defendant was the sole employee assigned to installing telephone lines and other telecommunication equipment for Cingular Wireless (Cingular), one of plaintiff's clients. On November 16, 2005, plaintiff filed suit against defendant and Vantage Associates, Inc. (Vantage), alleging, among other things, that in September 2005, defendant negotiated for employment with Vantage while still employed by plaintiff and subsequently "convinced Cingular to cease dealings with Innovative and begin [dealing] with Vantage." Plaintiff's complaint against defendant and Vantage consisted of six counts: breach of contract (count one), misappropriation of proprietary information (count two), conversion (count three), breach of implied covenant of good faith and fair dealing (count four), tortious interference with contractual relations (count five), and unfair competition (count six).
On December 8, 2005, counsel for plaintiff mailed a copy of the complaint and summons via regular and certified mail to defendant, "Tosh L. Henderson, 706 Garfield Avenue, Apartment L, Jersey City, New Jersey 07304." (Emphasis added). The certified mail was returned on December 24, 2005, after service attempts on December 10, 14, and 24, 2005, were unsuccessful. The complaint and summons sent by regular mail were never returned. Additionally, on December 20, 2005, Joseph Bartley, a process server for the Hudson County Sheriff's Office, signed an affidavit of service declaring he personally served Henderson with a copy of the summons and complaint at his place of abode---- 706 Garfield Ave., Apartment 1, Jersey City, New Jersey----on December 19, 2005.
When defendant failed to answer or file a responsive motion, plaintiff sent the court a "Request to Enter Default" on January 25, 2006. Plaintiff's complaint against Vantage was dismissed with prejudice on March 9, 2006, and a proof hearing was scheduled July 11, 2006, to consider plaintiff's claims against defendant. On March 30 and June 20, 2006, counsel for plaintiff sent letters to defendant at 706 Garfield Avenue, Apartment L, Jersey City, New Jersey 07304, via certified and regular mail, to notify him of the proof hearing.
Defendant did not attend the proof hearing on July 11, 2006, and on August 4, 2006, the trial court entered a default judgment against defendant in the amount of $152,875.00 plus costs of $270. There is no proof in the record that plaintiff ever attempted to serve defendant with a copy of the default judgment entered on August 4, 2006. See R. 4:43-2(c) ("Within seven days after receipt of the executed judgment from the court, the proponent of the judgment shall serve a copy thereof on the defaulting defendant as required by R. 1:5-2 except that service may be made by ordinary mail alone.").
On or about April 24, 2007, plaintiff's counsel was contacted by defendant's counsel after defendant attempted to purchase real estate in New Jersey. On May 22, 2007, defendant filed a motion under Rule 4:50-1 to vacate the default judgment. In a certification in support of his motion, defendant stated: "Neither I nor any member of my family was served with any process."
On the return date of defendant's motion, the court scheduled a plenary hearing for July 19, 2007. Four witnesses testified at the hearing: Daniela Munoz and defendant testified for the defense; and Joseph Bartley (a process server employed by the Hudson County Sheriff's Office), and James Paul Curry (an attorney employed by plaintiff's counsel's firm) testified on behalf of plaintiff.
Daniela Munoz, who was defendant's landlord when he lived at 706 Garfield Avenue, Apartment 2, Jersey City, New Jersey, testified that the building defendant lived in was a "two family house" with the first floor apartment of the house designated number one and the second floor apartment designated number two. From February 2003 until defendant moved out in January 2006, Munoz lived on the first floor with her nine-year-old son. According to Munoz, there is just one "main door" leading into the house, and immediately inside the entrance were two mailboxes. During defendant's residence, from February 2003 until January 2006, one of the mailboxes read "Munoz" and the other was marked "Henderson."
During the hearing, defendant testified he and his wife and two children moved from 706 Garfield Avenue, Jersey City, New Jersey, to 27 Pine Grove Terrace in Newark, New Jersey, in January 2006. While he admitted to residing at 706 Garfield Avenue, Apartment 2, Jersey City, New Jersey, from February 2003 until January 2006, defendant contended he never lived at 706 Garfield Avenue, Apartment 1 or Apartment L in Jersey City, New Jersey. Defendant described the building on Garfield Ave. as "a two family house," with Apartment 1 occupying the lower level and Apartment 2 on the second floor. Moreover, defendant denied that he was served by Joseph Bartley, and he denied receiving any of the certified or non-certified mailings from plaintiff's attorney at either his residences in Jersey City or Newark. Defendant testified that in June or July 2006 he spoke with a "former boss" from Vantage who told him he "was named in the lawsuit." Defendant believed, however, he was "a middle party [in] stopping Cingular Wireless from doing business with Innovative" and not a defendant in the suit.
Joseph Bartley, the process server employed by the Hudson County Sheriff's Office, was the next witness. He testified that although he recalled going to the two-family house at 706 Garfield Avenue and serving process upon "an adult male," he could not remember whether he had served ...