March 26, 2009
BOSTON COLLEGE, PLAINTIFF-RESPONDENT,
ANTHONY GRANDE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DJ-51503-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2009
Before Judges Sapp-Peterson and Alvarez.
Defendant Anthony Grande appeals from the denial of his motion, styled "to strike the defective docketing" of a default judgment originally entered by Civil Business Division of the Boston Municipal Court Department in 1994. The judgment was domesticated in New Jersey pursuant to the Uniform Enforcement of Foreign Judgments Act (UEFJA), N.J.S.A. 2A:49A-25 to -33.*fn1
On appeal, Grande argues, as he did unsuccessfully before the motion judge, that the entry of the Massachusetts default judgment violated constitutional due process guarantees and that service by mail violated court rules. As a result, he contends, the judgment should not be recognized by New Jersey. We affirm.
Plaintiff Boston College filed a complaint on August 27, 1993, to collect on an unpaid promissory note in the principal amount of $7,687.61. The note accrued interest at the rate of eight percent annually commencing January 26, 1993. An affidavit prepared by the "collection manager" of the law office that filed suit, which was offered in support of the application for a default judgment, states that a summons and complaint were sent to Grande's New York address via certified mail, return receipt requested, and regular mail. The affidavit also states that on March 2, 1994, further correspondence was sent to that address. Although the registered letter was not claimed, none of the correspondence was returned. The affidavit further states:
That on 11/24/93 plaintiff's attorney discussed the instant action with the defendant (and defendant acknowledged receipt of the summons and complaint) in a telephone conversation;
That the defendant maintains a non-published telephone at the above address;
That the defendant has communicated with the plaintiff regarding the instant action.
A photocopy of the submission to the Massachusetts court shows that the registered letter went unclaimed. The "motion to default" dated January 18, 1994, bears the following handwritten notation: "P/O, plff's motion to default defendant is heard, the Court grants deft. 21 days to file an answer or be defaulted. Callahan AC 4-25-94 DMC."
Judgment was entered, together with interest, attorney's fees and costs, for $9,800.45 on June 22, 1994. A certification prepared by Boston College's New Jersey attorney recites that the judgment was domesticated on February 27, 2007. That same certification indicates that as of March 1, 2007, $10,620.29 had accrued in interest for a total due of $20,420.74.
When a wage attachment was sought against Grande on April 13, 2007, he filed the motion to "strike defective docketing now being appealed." In his certification in support of the motion, he states:
In order to refresh my memory and recollection of this matter, some 13 years after the fact, I performed a thorough search of my personal records which I have from 1993 to the present, which is a file dedicated to important papers such as these, and found no record of having received such a complaint, default motion, judgment, etc. prior to January 2007, which I believe or submit supports my certification that I do not think or believe that I was ever personally, timely or properly served with the summons, complaint or default papers before receiving them just recently beginning in January 2007.
On May 25, 2007, Grande filed a motion for reconsideration, which was also denied.
The motion judge analyzed the matter based on Massachusetts Rule of Civil Procedure 4(f). As the motion judge said, pursuant to the rule, service of process made only by mail may be proven by signed receipt or other evidence of personal delivery. The affidavit filed in support of the entry of default judgment asserted that Boston College's attorney had spoken to Grande, who "acknowledged [his] receipt of the summons and complaint." Furthermore, although the registered mail was unclaimed, none of the correspondence sent by the law office was returned, including the regular mailing of the summons and complaint. It is not disputed that the address was correct. For those reasons, the motion judge concluded, proof of service by "other evidence" was established so as to satisfy the requirements of Massachusetts Rule of Civil Procedure 4(f).
Grande's brief raises the following points:
THE LAW DIVISION ERRED IN FAILING TO STRIKE THE DEFECTIVE DOCKETING BECAUSE PLAINTIFF FAILED TO ACHIEVE PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT AS IS REQUIRED UNDER MASSACHUSETTS COURT RULES AND THE ONLY NOTICE DEFENDANT HAD OF THIS MATTER WAS SOME 14 YEARS LATER WHEN COLLECTION PROCEEDINGS WERE INSTITUTED IN NEW JERSEY.
A. THE LAW DIVISION ERRED IN RELYING ON A TRIPLE HEARSAY AFFIDAVIT NOT BASED ON PERSONAL KNOWLEDGE IN DENYING DEFENDANT'S MOTION TO STRIKE THE NEW JERSEY JUDGMENT DOCKETING.
THIS FOREIGN JUDGMENT SHOULD FURTHER HAVE BEEN STRICKEN FROM THE DOCKET BECAUSE DEFENDANT WAS NEVER SERVED THE DEFAULT PAPERS AND THUS HE NEVER HAD NOTICE NOR AN OPPORTUNITY TO BE HEARD.
As we recently said in considering due process in the context of judgments domesticated in New Jersey pursuant to the UEFJA:
[T]he Constitutional requirements of the Full Faith and Credit Clause are predicated upon the judgment debtor having been accorded due process in the forum state.... A denial of due process occurs when the rendering state 1) lacked personal jurisdiction over the judgment debtor, 2) lacked subject matter jurisdiction, [or] 3) failed to provide the judgment debtor adequate notice and an opportunity to be heard.
[Maine v. SeKap, S.A. Greek Coop. Cigarette Mfg., S.A., 392 N.J. Super. 227, 235 (App. Div. 2007) (internal citations and quotations omitted).]
The motion judge found that confirmation of mail service was provided in accord with Massachusetts law by means other than a return receipt, namely, by virtue of the conversation between Boston College's attorney and Grande. The fact that the affidavit was made by a person functioning in some secretarial or paralegal capacity, who repeated the substance of a conversation between the attorney and Grande, the judge found, did not negate that it is "other evidence" that confirms receipt of the summons and complaint.
In fact, our own Rule 6:2-3(d) allows for similar process in civil actions cognizable in the Special Civil Part when the amount in controversy does not exceed $15,000. See R. 6:1-2(a)(1). The rule states that effective service includes service by mail unless the mail is returned with a marking indicating that it has not been delivered. R. 6:2-3(d)(4). Admittedly, the mailing is made by court staff, and not, as in this case, by plaintiff's counsel. R. 6:2-3(d)(1). The point remains, however, that the manner in which service was effectuated, by registered mail that was not claimed, ordinary mail that was not returned, suffices under the Special Civil Part rules. It simply does not violate due process concerns.
Grande's second point is raised for the first time on this appeal. He contends that because he was never served default papers, he was not afforded notice or an opportunity to be heard prior to the entry of the default judgment. Generally, we will not entertain legal issues not raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Even constitutional issues will not be considered unless they are jurisdictional in nature or substantially implicate the public interest. Ibid.
Even if we were to consider the argument, it nonetheless lacks merit. Grande contends that the Massachusetts rules require service of the paperwork seeking entry of default judgment on a defendant who has "appeared" in an action. Assuming that interpretation is correct, Grande is not a person who appeared in the action even though he communicated with Boston College's counsel. In addition, the Massachusetts cases that Grande cites in support this proposition relate to defaulted defendants to whom a summons and complaint was sent at an incorrect address, which is not the case here. Grande does not dispute that the Boston College correspondence, including the summons and complaint, was sent to a correct address. Accordingly, any failure to send him default papers in advance is not fatal.