December 10, 2009
FOX ROTHSCHILD, LLP, PLAINTIFF,
GUY LESTICIAN, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
SAL CARFARO, JR., THIRD-PARTY DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2147-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 18, 2009
Before Judges Cuff and Waugh.
Third-party defendant Salvatore F. Carfaro, Jr., appeals the denial of his motion to vacate a default judgment entered against him on the third-party complaint filed by defendant/third-party plaintiff Guy Lestician. We affirm.
Lestician was the defendant in a suit for unpaid legal fees brought by plaintiff Fox Rothschild, LLP. He filed the third-party complaint seeking contribution and indemnification, alleging that Carfaro was the beneficiary of the legal services rendered by Fox Rothschild and had agreed to be financially responsible for the resulting legal fees. Lestician's counsel engaged the services of a professional process server, whose agent completed an affidavit of service to the effect that he personally served Carfaro at his address in Plainfield on April 22, 2007.
Lestician subsequently sought and obtained entry of default against Carfaro. R. 4:43-1. Lestician then sought entry of a default judgment, giving Carfaro notice of the application as required by Rule 4:43-2. The application was not opposed, and a default judgment against Carfaro in the amount of $292,956.85, the amount sought by Fox Rothschild,*fn1 was entered on September 10, 2007.
In February 2008, Lestician's attorney sent Carfaro an information subpoena. On March 13, 2008, Carfaro sent a "letter brief" and two certifications, but no notice of motion, to one of the Law Division judges in Mercer County. In his letter Carfaro sought to have the default judgment vacated, contending that he had not been served with the summons and third-party complaint. In support of his contention, Carfaro submitted certifications, his own and that of a "personal friend," to the effect that the date of service was a Sunday and that Carfaro was not in Plainfield on that date.
In response, Lestician submitted a certification from the process server stating that the server knew Carfaro from having served him on prior occasions and that the actual date of service was April 20, 2007. In the certification, it was explained that the affidavit of service had the wrong date because the process server did not electronically register the service with his office until Sunday, April 22. The process server further certified that he did not notice the incorrect date of service when he signed the affidavit of service on April 23.
Following several adjournments, the application was initially heard during July or August 2008.*fn2 A plenary hearing was scheduled for October 31, 2008. On that date, Lestician appeared with counsel and the process server. Carfaro did not appear, having requested an adjournment by letter faxed at 4:35 the preceding evening. The basis of the request was that he wanted to take discovery and had just located an expert on the electronic device used by the process server. The motion judge attempted to contact Carfaro prior to the hearing on October 31, but was unsuccessful.
The motion judge denied the application for an adjournment, setting forth his reasons as follows:
Well, this is shocking, frankly, to receive something like this at this point in time after we were here in July and the plan of how to proceed was certainly set. Three months -- over three months have passed and after work hours on a Thursday to get a request for an adjournment for a Friday morning. I am not going to grant that, it is impossible. He has not appeared. As far as the Court is concerned, the matter must come to an end. We can only schedule these things so often. He should have done something, certainly, if he wanted time, well before this.
And, it does not even make sense to me, because the issue is one of testimony. I did not take testimony last time. He said he was some place else and there were witnesses who could support that and service of process did not occur. And service of process is important. Often it will rely upon credibility. I have seen situations in 44 years where process servers lied, just filled out forms that were absolutely falsifications, did not want to come back, probably wanted to be done with it. There is always a few of those, just like you will find a few . . . bad apples in any barrel, I suppose. So, you never really know, and it is worthy of having a full hearing and making credibility determinations.
But, the Court is left in an impossible situation and I really have no time on the schedule to reschedule this, it is highly unfair to the third-party plaintiff. And the request just simply does not make sense under any standard. And even factoring in the pro se status of Mr. Carfaro, the Court is being played with, is my final feeling about this. It is just not right, it is absolutely wrong. There is no basis upon which to grant the relief requested, and it is denied. Consequently, the application to set aside the default is denied.
This appeal followed.
If "a default judgment is taken in the face of defective personal service, the judgment is [generally] void." Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993). In this case, there was a factual dispute between the parties as to whether personal service had actually been made.
The affidavit of service, upon which the default was based, represented that Carfaro was personally served on April 22, 2007 in Plainfield.*fn3 In his application to set aside the default judgment, Carfaro certified that he had not been served, and submitted two certifications to the effect that he was not at the Plainfield address on April 22. In opposition, Lestician submitted the certification of the process server, who again asserted that he had served Carfaro personally, but that the actual date of service had been April 20 rather than April 22. Carfaro did not file a reply certification with respect to the assertion that service took place on April 20.
The motion judge properly concluded that the factual dispute required a plenary hearing. He set the date for the hearing well in advance, providing the parties several months to take discovery on the issue. Carfaro sought no discovery during that period, nor did he make any application for more time to complete discovery until the late afternoon on the day prior to the date scheduled for the hearing in the letter faxed to the motion judge's chambers.
Despite the extreme lateness of his request for an adjournment, Carfaro failed to appear before the motion judge to determine whether his late request would be granted.*fn4 In that regard, we find it significant that Carfaro's adjournment request did not in any way suggest that he was unable to appear, or that he would not appear, at the appointed time. The judge attempted to contact him at the number on his letter, but was not able to do so, apparently because the number had been disconnected. Counsel for Lestician, however, was present with his witness and ready to proceed.
The determination as to whether an adjournment should have been granted rested within the sound discretion of the motion judge. See Nadel v. Bergamo, 160 N.J. Super. 213, 218 (App. Div. 1978); State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). An appellate court is obliged to sustain a judge's exercise of discretionary power "absent a clear showing that such authority has been abused."
Bass v. De Vink, 336 N.J. Super. 450, 456 (App. Div.), certif. denied, 168 N.J. 292 (2001). Our Supreme Court has said:
Although the ordinary "abuse of discretion" standard defies precise definition, it arises when a decision is "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F. 2d 1260, 1265 (7th Cir. 1985). In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue. It may be "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Coletti v. Cudd Pressure Control, 165 F. 3d 767, 777 (10th Cir. 1999) (internal quotations and citations omitted). "Ordinarily, an abuse of discretion will be manifest if defendant can show that a [discretionary decision] (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Baynes, 148 N.J. 434, 444 (1997) (quoting State v. Bender, 80 N.J. 84, 93 (1979)). [Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002).]
Our review of the record in this case reveals no abuse of discretion. Carfaro's request was both untimely and baseless. He had already had an opportunity to take discovery, but did not do so. His purported software expert would, at best, have provided testimony related to the very tangential issue of the functioning of the process server's palm pilot. We are, consequently, satisfied that the motion judge appropriately denied the adjournment.
We are similarly satisfied that the judge did not abuse his discretion by proceeding to determine the application on the papers in light of Carfaro's willful failure to attend and present evidence at the hearing. Carfaro never responded to the process server's certification that the actual service had taken place on April 20, 2007. Although Carfaro offered proofs that he was not at the Plainfield address on April 22, the record is clear that he was personally associated with that address. In fact, he used it as his return address for written communications with the court. Consequently, the motion judge had a sufficient factual basis in the record to determine that service had been made in light of Carfaro's failure to respond to the assertion that service took place on April 20 and his decision not to participate in the plenary hearing.
We affirm the order on appeal. As already noted, Lestician has conceded that he is only entitled to collect the amount he paid to settle the claim for legal fees brought by Fox Rothschild, plus applicable interest and fees based upon that amount, rather than the full amount of the judgment. To ensure that the record reflects the amount due on the judgment, Lestician shall file a warrant to satisfy that portion of the judgment that corresponds to the amount waived by Fox Rothschild as the result of the settlement.