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NJ Cure v. Estate of Hamilton

May 11, 2009

NJ CURE, PLAINTIFF-RESPONDENT,
v.
THE ESTATE OF ROBERT HAMILTON, DEFENDANT, AND ALBERT DENEVE, M.D., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6646-07.

The opinion of the court was delivered by: Waugh, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 25, 2009

Before Judges Payne,*fn1 Waugh and Newman.

Appellant Albert DeNeve, M.D., appeals from an order sanctioning him for repeated failure to produce copies of the medical records of his patient, Robert Hamilton, in connection with a Personal Injury Protection (PIP) arbitration. Although we are of the opinion that DeNeve should have acted much earlier in supplying the records and opposing the enforcement motions brought by plaintiff NJ Cure, it is clear that the trial court never had personal jurisdiction over DeNeve in this matter. Consequently, we must reverse and vacate the order.

I.

We glean the following facts from the record. In a PIP arbitration proceeding between NJ Cure and the now deceased Robert Hamilton, NJ Cure sent a letter dated March 14, 2007, to DeNeve, enclosing a subpoena duces tecum and deposition notice, seeking production of his medical records with respect to Hamilton. We note that DeNeve was apparently not the medical provider whose bills were the subject of the PIP arbitration. On April 25, 2007, NJ Cure mailed another letter to DeNeve, again enclosing a subpoena and deposition notice. Both of those letters, although mailed to DeNeve, purported to "serve" him with the subpoenas. However, DeNeve was never personally served with the subpoenas as required by Rule 1:9-3. See also R. 4:14-7(a).

Having not received the medical records sought by the mailed subpoenas, NJ Cure filed a verified complaint in the Law Division, naming DeNeve and the Estate of Robert Hamilton as defendants in the action. The Estate was subsequently dismissed voluntarily by NJ Cure. NJ Cure also requested an order to show cause (OTSC), which was duly issued on September 13, 2007, and made returnable on October 15, 2007. As drafted by NJ Cure, the OTSC authorized service of the order and verified complaint by mail "upon the Defendants' counsel." Although the Estate had counsel, DeNeve was unrepresented at the time. As far as we can discern from the record, NJ Cure had no basis to believe that DeNeve was represented and never identified any such attorney.

The OTSC and related papers were served directly on DeNeve by mail, rather than on his "counsel," as authorized by the OTSC, or by personal service, as required by Rule 4:4-4. DeNeve did not appear in court on October 15. The record does not contain a proof of service of the OTSC, so we cannot ascertain what representations were made to the trial judge in that regard. The trial judge nevertheless issued an order directing DeNeve to provide a copy of Hamilton's medical file to NJ Cure.

When the records were not produced, NJ Cure moved to enforce litigant's rights, R. 1:10-3, seeking an award of counsel fees and sanctions against DeNeve. It also sought a provision allowing it to seek an arrest warrant if DeNeve continued to disobey the court's orders.

On February 28, 2008, the trial judge entered the requested order, awarding $2,592 in counsel fees to NJ Cure, imposing a $1,000 sanction against DeNeve, and allowing NJ Cure to seek DeNeve's commitment to the Bergen County Jail if he failed to produce Hamilton's medical records.

On April 7, 2008, a copy of a proposed arrest warrant was faxed to DeNeve. On April 8, during a telephone conversation with his attorney on another matter, DeNeve mentioned the proposed warrant. Counsel went to DeNeve's office to examine the fax. Shortly thereafter, copies of all of Hamilton's medical records were sent to NJ Cure. Consequently, no arrest warrant was issued.

Following an unsuccessful attempt to resolve the remaining sanctions, DeNeve moved to set aside the award of counsel fees and the $1,000 sanction. NJ Cure cross-moved to enforce them. The trial judge denied DeNeve's motion ...


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