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Lapatka Associates, Inc., A New Jersey Corporation v. John Garry Merrett

July 7, 2011

LAPATKA ASSOCIATES, INC., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
JOHN GARRY MERRETT, A/K/A GARY MERRETT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-13310-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 8, 2011

Before Judges Cuff and Sapp-Peterson.

Defendant appeals from the denial of his motion to vacate the entry of default judgment pursuant to Rule 4:50 based upon defective service and the assertion of a meritorious defense. The motion judge denied the motion, finding defendant was aware of the lawsuit and that his due process rights had not been violated.

In February 2002, defendant was a member and CEO of Caven Carteret, LLC (Caven), which was attempting to develop property in Jersey City for multi-family residential use. On February 20, 2002, defendant, in his capacity as CEO, entered into an agreement with plaintiff for engineering services. Plaintiff subsequently billed Caven for services provided in the amount of $30,697.16, which Caven did not pay. Plaintiff filed a complaint against defendant in October 2004. The Affidavit of Service executed by a process server, Steven Inghilleri, stated that the summons and complaint were served upon defendant on November 12, 2004, at 31-11 Broadway, Fair Lawn, by leaving "a copy with a competent household member over 14 years of age residing therein[,]" defendant's son, Gary Merrett, Jr.

Defendant did not answer the complaint or otherwise respond to the pleadings, and plaintiff obtained a default judgment against defendant for $45,008.57. In April 2010, defendant received a copy of the application to record the judgment in Florida, where he has a residence. He filed a motion in August 2010, seeking an order vacating the default judgment. In support of the motion, defendant submitted a certification indicating that 31-11 Broadway was not his residence but a commercial office building. He stated further that August 2004 was the last time he was at the building, but the landlord allowed he and his son to receive mail at the address, which his son would pick up. He alleged, however, that he "did not receive from [his] son a copy of the subject Summons and Complaint." In addition, the certification claimed that the services plaintiff performed were on behalf of Caven, that at all times he acted in his capacity as CEO, and the Certification of Proof of Amount Due did not have as attachments the invoices for the services allegedly performed.

Plaintiff opposed the motion and submitted two certified letters dated January 20, 2005, addressed to defendant at 31-11 Broadway. Both letters were marked received with a signature from "Shadeequa Jones." Plaintiff additionally argued that defendant "at least" had an agent at the location to accept service of process in the event defendant was absent.

The court conducted oral argument and, at its conclusion, rendered its decision orally. The court acknowledged that leaving a copy of the summons and complaint at the "place of business" rather than at defendant's residence was a technical violation, but concluded that 31-11 was the address in the contracting agreement, "defendant was certainly at that address admittedly until three months before the service of process[,]" and that his certification did not definitively state that "he was unaware certainly that there was a dispute and that money was owed and unaware that plaintiff was pursuing it by way of a complaint." Additionally, the court noted that defendant did not deny his son received a copy of the summons and complaint and that "defendant acknowledges receiving a judgment [at] the same address, on the same day in a case of Lapatka Engineering v. Danmark Partners, LLC. The [c]court notes that defendant was a member of Danmark Partners, LLC."

The court also rejected defendant's contention that he had a meritorious defense to the actions, finding defendant acknowledged that services had been performed by plaintiff and failed to "raise any meaningful substantive defense as to the services provided." The court concluded that defendant was a sophisticated businessman who "relied on technical service issues and perhaps his own relocation in strategically choosing not to respond." Finally, the court found that plaintiff waited over five years before he sought relief from judgment, which the court concluded was unreasonable.

On appeal, defendant raises the following points for our consideration:

POINT I

THE COURT BELOW ERRED IN DENYING MERRETT'S MOTION TO VACATE THE DEFAULT[] JUDGMENT UNDER RULE ...


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