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Morristown Memorial v. Jennifer Franco

July 20, 2011

MORRISTOWN MEMORIAL, PLAINTIFF-APPELLANT,
v.
JENNIFER FRANCO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-000814-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 7, 2011

Before Judges Grall and LeWinn.

In December 2001, plaintiff, Morristown Memorial Hospital (MMH) sued defendant, Jennifer Franco, for nonpayment of her hospital bill in the amount of $1244.79. MMH served Franco at her last known address, 53 Madison Street in Morristown, New Jersey, 07860. Franco did not answer and on February 4, 2003, a default judgment was entered against her for $1419.60, representing the amount of the unpaid bill plus prejudgment interest.

Between June 18, 2004 and July 14, 2008, MMH sent numerous documents to Franco's address, by both regular and certified mail; these mailings included information subpoenas and copies of MMH's motions to enforce litigant's rights. None of the material sent by regular mail was ever returned by the Postal Service. Several of the items mailed to Franco's address added the four-digit [ZIP] suffix, 5262, to her zip code.

In October 2009, a court officer levied on Franco's account at Bank of America (BOA) for $647.47; the court's notice of levy was mailed to Franco at the 53 Madison Street address. MMH thereupon filed a motion for turnover of those funds in partial satisfaction of its default judgment. MMH's proof of service of its motion stated that a copy was served on Franco at 53 Madison Street, "being the last known address, simultaneously by certified mail, return receipt requested and by regular mail with postage prepaid thereon" as well as service upon BOA.

On November 20, 2009, the judge entered an order denying the motion. A notation on the order stated: "Motion denied without prejudice. Plaintiff may refile with adequate proof of defendant's current address."

MMH filed a motion for reconsideration, claiming the judge misapplied pertinent case law and exceeded rule requirements by requiring more than its proof of mailing. By order dated April 13, 2010, the judge denied reconsideration and appended a statement of reasons. The judge concluded that MMH's reliance on New Century Financial Service, Inc. v. Nason, 367 N.J. Super. 17 (App. Div. 2004), and First Resolution Investment Corp. v. Seker, 171 N.J. 502 (2002), was "misplaced" because:

New Century Financial held that a judgment creditor need not attach a certified mail receipt card to its proof of service certification in the context of service of an information subpoena following entry of default judgment. . . . It should be noted, however, that the plaintiff in New Century Financial certified in its proof of mailing that the order . . . at issue was sent simultaneously by regular and certified mail to the defendant's last known address and that neither mailing was returned in a manner which indicated that service by mail was not effectuated. Likewise, First Resolution, which cited Morristown Memorial v. Caldwell [340 N.J. Super. 562 (App. Div. 2001)], relied upon by plaintiff in its present [m]otion for [r]econsideration, [is] distinguishable from the present matter for similar reasons.

This case involves judgment entered February 4, 2003, more than [seven] years ago. The only statements contained in [p]laintiff's [p]roof of [m]ailing submitted with the original [m]otion were that the [n]notice of [m]otion was served to defendant at her "last known address, simultaneously by certified mail, return receipt requested and by regular mail." Contrary to the cases cited by [p]laintiff, the papers submitted in support of its original [m]otion did not certify that either the certified mailing or the regular mailing was returned in a manner which indicated that service by mail was not effectuated, nor does the proof of mailing submitted with this [m]otion for [r]econsideration so state. Although certainly [p]laintiff could have provided some proof of its attempt to confirm defendant's current address for a judgment of this age, it chose not to do so.

The judge filed an amplification of her decision pursuant to Rule 2:5-1(b) on May 27, 2010. There, the judge reiterated her concern about "the age of this case" and MMH's "failure to submit any confirming postal information or [a]ffidavit of diligent inquiry . . . ." The judge also pointed out a discrepancy in MMH's proof of service of its turnover motion, showing service at 53 Madison Street, and the proof of service of its motion for reconsideration, showing service at 53 Madison Avenue. For these reasons the judge was concerned that defendant may not have "been afforded due process."

On appeal, MMH contends the judge erred as a matter of law by requiring it to submit supplemental proof of service and by failing to accept its service by mail as valid under the circumstances. We concur and, therefore, reverse.

Initially, we note that our standard of review here is de novo. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." ...


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