December 31, 2009
SHRENIK BAVISHI, PLAINTIFF-APPELLANT,
SAM ALADABBAGH D/B/A DIAMOND INN MOTEL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DJ-163099-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2009
Before Judges Baxter and Alvarez.
Plaintiff Shrenik Bavishi appeals from the entry of a judgment for $41,451.48 in taxed costs and attorney's fees entered by the District Court in Clark County, Nevada on November 24, 2004. 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. We reverse.
Plaintiff sued defendant Sam Aladabbagh, doing business as Diamond Inn Motel, in Nevada for personal injury and property damages incurred while plaintiff was staying at defendant's premises. Plaintiff alleged that on December 1, 1999, he was attacked, stabbed and robbed of thousands of dollars worth of jewelry. For reasons not contained in this record, plaintiff's personal injury attorney withdrew from representation and plaintiff has never secured the services of another attorney in Nevada.
Shortly before the personal injury case was listed for trial, defendant filed an application for summary judgment. Plaintiff was, by then, pro se and disputes that he was properly served with the summary judgment papers. The case minutes from the District Court, dated September 27, 2004, indicate that the court did not receive opposition to defendant's motion for summary judgment. The "District Case Inquiry - Minutes" state:
Plaintiff faxed the Law Clerk this morning advising he would not be present as he had to care for his son today. Court previously granted [plaintiff's counsel's] Motion to Withdraw. As opposition received late, the Court reconsidered the Motion. . . . Motion GRANTED . . . . As plaintiff requested additional time to submit further opposition for the Motion for Summary Judgment, COURT ORDERED, matter CONTINUED. . . . TO: 9/29/04 9:00 AM . . . .
Although plaintiff presumably was noticed of the new September 29, 2004 date, there is no documentation in the record that this occurred. It must be reiterated that plaintiff was at that point pro se and continued to live in New Jersey.
The only other relevant document provided to us is a November 24, 2004 Nevada District Court order. It states:
This matter having come regular for hearing on November 15, 2004, in chambers, and the Court having considered all relevant facts, testimony and proof offered by the respective parties and the cause having been submitted to the Court for decision, the Court being fully advised in the premises, finds as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion Requesting Reconsideration is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant's Motion to Tax Costs is granted in the amount of $11,373.98.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant's Motion for Attorney's Fees is hereby granted in the amount of $30,077.50.
IT IS SO ORDERED.
The order makes no reference to the extent of plaintiff's participation in that proceeding; furthermore, there is no proof he was noticed of the initial November 15 proceeding. It is not clear from the order whether hearing the matter "in chambers" is a reference to a decision being made on the papers or a literal reference to an in-chambers meeting with counsel. Since plaintiff by then was pro se, it is unlikely that an in-chambers discussion would have included him.
It is also unclear from our review of the order whether the motion for summary judgment that plaintiff asked to have reconsidered included reconsideration of defendant's request for $11,373.58 in taxed costs and $30,077.50 in attorney's fees or only the dismissal of the complaint. We cannot determine from our review of this record when attorney's fees and costs were first requested. Plaintiff provides us with copies of Federal Express tracking documents purporting to establish that the September application for summary judgment was delivered to someone other than himself at an address other than his own. He contends on appeal, as he did before the trial judge, that the Federal Express tracking record establishes defendant's failure to serve him with the motion papers prior to the entry of summary judgment. But we cannot determine whether those papers included a request for counsel fees and costs.
Neither can we determine, nor does defendant contend, that plaintiff had notice of any proceeding after September 27, 2004. We do not know from this scant record if plaintiff understood that in addition to dismissing his complaint, that defendant's counsel was seeking a judgment for substantial costs and attorney's fees.
Plaintiff appeared in the New Jersey trial court on August 29, 2008 for his motion to vacate the foreign judgment that defendant was seeking to domesticate. Plaintiff essentially asserted to the trial judge, as he does to us, that the summary judgment papers were sent to the wrong apartment. At the hearing for the motion to vacate the foreign judgment, the court advised defendant that he needed to challenge service in Nevada, the rendering state, and that the court in New Jersey had no basis for vacating the entry of the judgment against him. In fact, plaintiff appears to have taken an appeal of the Nevada judgment to the United States Supreme Court, but it is not clear what issues he has raised, or even if his appeal will be entertained at this late date.
In assessing claims of violations of 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).]
Plaintiff does not dispute personal jurisdiction or subject matter jurisdiction. His complaint is that he was not properly served and did not have an adequate opportunity to challenge service prior to the entry of judgment. No proof was presented by defendant establishing notice prior to the entry of the disputed order for costs and attorney's fees.
Absent a due process claim, we will give sister states' judgments "the same effect as would be provided in the state that rendered the judgment." Sonntag Reporting Serv., Ltd. v. Ciccarelli, 374 N.J. Super. 533, 537 (App. Div. 2005) (citing Durfee v. Duke, 375 U.S. 106, 109-11, 84 S.Ct. 242, 244-45, 11 L.Ed. 2d 186, 190-91 (1963)). It is impossible to determine from the record before us, however, whether this judgment debtor was provided with adequate "'notice plus an opportunity to be heard.'" Simmerman v. Dryvit Systems, Inc., 196 N.J. 316, 330 (2008) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12, 105 S.Ct. 2965, 2974, 86 L.Ed. 2d 628, 641-42 (1985)). Certainly, it is an unusual outcome for a plaintiff in a personal injury action to have such substantial attorney's fees and costs entered against him.
The District Court record from September 27, referring to the motion for summary judgment, establishes that defendant was aware of that proceeding. That record does not mention any request for attorney's fees and costs. There is no equivalent documentation supplied to us establishing that, prior to the November 24, 2004 hearing, plaintiff had been noticed of the forthcoming proceeding in any fashion whatsoever. Nothing in the body of the order was helpful; it stated in general terms that the court considered "all relevant facts, testimony and proofs offered by the respective parties," but did not name them. That plaintiff's request for reconsideration was denied is clearly stated, but what that request included is not described.
Because we are not certain that due process considerations were satisfied or that plaintiff was given notice of the application and an opportunity to respond, we cannot conclude that the notice requirement implicit in the UEFJA has been met. We simply have no record upon which to fairly assess the issue of notice.
Because we are not satisfied that due process requirements and the constitutional prerequisites have been met, we reverse the court's order domesticating the Nevada judgment.
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