Opinion
DOCKET NO. A-5111-13T1
05-07-2015
LASSER HOCHMAN, L.L.C., Plaintiff-Respondent, v. REMY JACOBSON, Defendant-Appellant.
Kevin C. Orr argued the cause for appellant (Law Offices of Kevin Crawford Orr, attorneys; Mr. Orr, of counsel and on the briefs). Ryan M. Buehler argued the cause for respondent (Lasser Hochman, L.L.C., attorneys; Mr. Buehler and Richard L. Zucker, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10049-08. Kevin C. Orr argued the cause for appellant (Law Offices of Kevin Crawford Orr, attorneys; Mr. Orr, of counsel and on the briefs). Ryan M. Buehler argued the cause for respondent (Lasser Hochman, L.L.C., attorneys; Mr. Buehler and Richard L. Zucker, of counsel and on the brief). PER CURIAM
Defendant Remy Jacobson appeals from an order entered by the Law Division on May 23, 2014, which granted a motion by plaintiff Lasser Hochman, L.L.C., for reconsideration of an order dated February 14, 2014, and required a bank to turn over certain monies to the Sheriff of Morris County. We affirm.
We briefly summarize the relevant facts and procedural history. Plaintiff is a law firm that provided legal advice to defendant in connection with certain real estate transactions involving real property in Weehawken. Defendant failed to pay for the legal services provided. Accordingly, on October 23, 2008, plaintiff sent defendant a Rule 1:20A-6 pre-action notice, which detailed the amounts due and owing. Plaintiff again contacted defendant by e-mail on November 3, 2008 regarding the amount owed. Defendant did not pay the monies demanded.
On December 18, 2008, plaintiff filed a complaint in the Law Division seeking the "reasonable value of the unpaid services rendered and disbursements" in the amount of $27,412.88. On December 31, 2008, plaintiff submitted an ex parte application to the court seeking the issuance of a writ of attachment. In a supporting certification, Richard L. Zucker ("Zucker"), a member of the firm, stated that defendant was not a resident of New Jersey, but had an address in Aventura, Florida.
In the certification, Zucker also stated that defendant owned membership units in a New Jersey limited liability company, and plaintiff had been informed that defendant was attempting to sell his interest in the company. Zucker said that if notice of the application was provided to defendant, he will attempt to sell his membership interest in the company "before a sheriff can execute a writ of attachment."
On January 6, 2009, plaintiff mailed the summons and complaint to defendant at the Aventura, Florida address, by certified mail, return receipt requested, and by regular mail. The trial court entered an order dated January 9, 2009, granting plaintiff's ex parte application for a writ of attachment.
On February 23, 2009, plaintiff filed a certification of diligent inquiry and service in the trial court. In the certification, Ryan M. Buehler ("Buehler"), an associate with the firm, stated the certification was being made to set forth "the efforts made to identify" defendant's location.
Buehler asserted that defendant does not have a registered agent or residence in New Jersey, and that defendant's "last known dwelling house or usual place of abode" was at an address in Aventura, Florida. Buehler indicated that, because plaintiff believed defendant could not be personally served in New Jersey, service had been made by mail at defendant's Florida address. Buehler also stated that the summons and complaint that were sent via certified mail had been returned, stamped "Refused," while the papers sent by regular mail had not been returned.
Defendant did not file an answer to the complaint within the time required by the court rules, and on February 23, 2009, plaintiff filed a request for the entry of default pursuant to Rule 4:43-1. In a supporting affidavit dated March 17, 2009, a licensed investigator stated, among other things, that defendant resided at the Aventura, Florida address.
On April 21, 2009, Zucker sent an e-mail to an attorney who defendant had apparently retained to represent him in the dispute concerning the legal fees. In the e-mail, Zucker indicated the amount due, and said that if plaintiff did not receive payment by April 24, 2009, interest would accrue on the unpaid amount.
On April 23, 2009, defendant's attorney responded to Zucker and stated that defendant owned property that was under contract for sale, and that defendant would pay off the debt to plaintiff "upon closing" of that sale. Thereafter, the attorney sent additional e-mails to Zucker which indicated that defendant intended to pay plaintiff the legal fees owed.
Meanwhile, plaintiff had asked the court to enter a final judgment by default. On April 28, 2009, the court entered the final judgment against defendant in the amount of $27,412.88, plus costs. Thereafter, Zucker exchanged e-mails with attorneys for defendant, and the parties endeavored to resolve the dispute concerning the fees. Defendant did not, however, pay the amounts demanded.
Thereafter, on December 9, 2013, the clerk of the court issued a writ of execution to the Sheriff for Morris County. The writ ordered the Sheriff to satisfy the default judgment entered against defendant out of his personal property. On January 9, 2014, the Sheriff levied upon defendant's bank account.
On January 24, 2014, plaintiff filed a motion to direct the bank to turn over the monies levied upon to the Sheriff. The motion papers were served upon defendant at his Aventura, Florida address. Defendant opposed the motion and filed a cross-motion which sought, among other relief, to vacate the default judgment. On February 14, 2014, the court denied plaintiff's motion for a turnover order. On the order, the court wrote, "No prior orders provided."
On February 26, 2013, plaintiff filed a motion for reconsideration of the February 14, 2014 order, and again sought a turnover order. Defendant filed a cross-motion to vacate the default judgment. On March 14, 2014, the court heard argument on the motions.
Thereafter, the court issued a written decision on the motions. The court noted that a judgment can be set aside for lack of in personam jurisdiction, and indicated that the issue to be resolved was whether defendant had been properly served with the summons and complaint. The court stated that technical violations of the rules governing service of process would not defeat jurisdiction.
The court noted that, while plaintiff's affidavit of diligent inquiry should have been filed at the time the summons and complaint were mailed to defendant, the filing of the affidavit was "not so untimely that [it] renders the service defective and the judgment void." The court also noted that plaintiff had sent defendant pre-action notices which were apparently received, and that the information contained in the affidavit in support of the motion for a writ of attachment provided "essentially the same information that was in the [subsequently filed] certification of diligent inquiry."
The court memorialized its decision in an order dated May 23, 2014, which granted plaintiff's motion for reconsideration, and directed the bank to turn over $31,783.07 to the Sheriff. This appeal followed.
Defendant argues that the trial court erred by finding that it had personal jurisdiction in the matter. Defendant maintains that mailed service was invalid because plaintiff failed to file the affidavit of diligent inquiry prior to or contemporaneously with the mailing of the summons and complaint. Defendant contends that, even if the affidavit is deemed to be timely, it failed to set forth whether defendant was amenable to service of process in New Jersey on the date when plaintiff mailed the summons and complaint to him. In addition, defendant contends that the court should vacate the default judgment and the writ of attachment because the final judgment was entered without a proof hearing.
A trial court's decision on a motion to vacate a default judgment "warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citing DEG, L.L.C. v. Twp. of Fairfield, 198 N.J. 242, 261 (2009)). A reviewing court will find that the trial court mistakenly exercised its discretion only when the court's decision lacks a rational explanation, deviates inexplicably from established policies, or rests "'on an impermissible basis.'" Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)). Because a trial court's ruling as to whether it has in personam jurisdiction involves a question of law, it is reviewed de novo. Mastondrea v. Occidental Hotels Mqmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007) (citing Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 150 (3d Cir. 1996)).
We reject defendant's contention that plaintiff failed to properly effect service of process upon him. Personal jurisdiction over a defendant can be obtained "[b]y mail or personal service outside the [s]tate[]" where "it appears by affidavit satisfying the requirements of [Rule] 4:4-5(b) that despite diligent effort and inquiry personal service cannot be made in accordance with [Rule 4:4-4(a).]" R. 4:4-4(b)(1).
Under Rule 4:4-4(b)(1)(C), personal jurisdiction can be obtained by
mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, and, simultaneously, by ordinary mail to . . . a competent individual of the age of [fourteen] or over, addressed to the individual's dwelling house or usual place of abode . . . . Mail may be addressed to a post office box in lieu of a street address only as provided by [Rule] 1:5-2.
Thus, "a prerequisite for serving a defendant outside the [s]tate is an 'affidavit satisfying the requirements of [Rule] 4:4-5(c)(2) that despite diligent effort and inquiry personal service' cannot be effected within the [s]tate." Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 291 (App. Div. 2000) (quoting R. 4:4-4(b)(1)). "The underlying purpose to an affidavit of diligent inquiry is to establish the impossibility of serving the defendant in this state." Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 390-91 (App. Div. 2007).
We note that the court rules applicable to this case are those that were in effect in 2009. At that time, current Rule 4:4-5(b) was included in the rule designated as Rule 4:4-5. See Pressler and Verniero, Current N.J. Court Rules, note on R. 4:4-5 (2015).
Defendant argues that service was not effected in accordance with the rules because the affidavit of diligent inquiry was not filed prior to or contemporaneously with the mailing of the summons and complaint. In support of this argument, defendant relies upon Rule 4:4-4(b)(1), but the rule does not require the filing of the affidavit before or at the time the summons and complaint are mailed.
However, Rule 4:4-4(b)(1) merely requires that the affidavit establish that personal service cannot be effected in this state "despite diligent effort and inquiry[.]" Furthermore, even if the rule were interpreted to require the filing of the affidavit prior to or contemporaneously with the mailing of the summons and complaint, the delay here was not a significant deviation from any such requirement. The summons and complaint were mailed on January 6, 2009, and the affidavit was filed on February 23, 2009. The delay was insubstantial and there is no indication that the circumstances that prevailed on January 6, 2009 changed before the affidavit was filed.
Defendant further argues that, if the affidavit is deemed to have been timely filed, it failed to conform to the requirements of Rule 4:4-5(b), which states:
Contents of Affidavit of Inquiry. The inquiry required by this rule shall be made by the plaintiff, plaintiff's attorney actually entrusted with the conduct of the action, or by the agent of the attorney; it shall be made of any person who the inquirer has reason to believe possesses knowledge or information as to the defendant's residence or address or the matter inquired of; the inquiry shall be undertaken in person or by letter enclosing sufficient postage for the return of an answer; and the inquirer shall state that an action has been or is about to be commenced against the person inquired for, and that the object of the inquiry is to give notice of the action in order that the person may appear and defend it. The affidavit of inquiry shall be made by the inquirer fully specifying the inquiry made, of what persons and in what manner, so that by the facts stated therein it may appear that diligent inquiry has been made for the purpose of effecting actual notice.
Defendant argues that there is no reference in plaintiff's affidavit indicating the inquiry that the affiant actually made. He also asserts that the affidavit is deficient because it does not state when or in what manner the inquiry was made. Again, we disagree. Here, the affidavit was provided by Buehler, an associate of plaintiff. As plaintiff points out, the firm had been defendant's attorney. The firm had knowledge of defendant's residence or address, which was confirmed by an inquiry made of defendant's attorney, who indicated that defendant's last known dwelling or usual place of abode was in Aventura, Florida.
Moreover, even if the affidavit lacked all of the relevant information required by Rule 4:4-5(b), the deficiencies are not sufficient to defeat jurisdiction. Here, plaintiff established that defendant did not have a residence or address in New Jersey and could not be personally served in this state. Those facts had been presented to the trial court in December 2008, when plaintiff made an ex parte application for issuance of a writ of attachment.
Our decision in Goldhaber supports this conclusion. There, we held that service of process was valid even though the plaintiff had not filed an affidavit of diligent inquiry. Goldhaber, supra, 395 N.J. Super. at 390. We emphasized that rather than compel strict compliance with the rule, the courts must look to the purpose of the affidavit. Ibid. We said that, had the affidavit been filed, it would have established that the defendant could not be served within New Jersey. Ibid. In this case, the affidavit was filed and plaintiff provided sufficient information to the trial court to show that defendant could not, in fact, be personally served within this state.
In addition, defendant contends that the trial court erred by entering the default judgment without conducting a proof hearing. Again, we disagree. Rule 4:43-2(a) provides that:
[i]f the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit setting forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due, shall sign and enter judgment for the net amount and costs against such defendant, if not a minor or mentally incapacitated person . . . . If the claim is founded upon a note, check or bill of exchange or is evidenced by entries in the plaintiff's book of account, or other records, a copy thereof shall be attached to the affidavit.
Here, plaintiff's claim was for a sum certain, as shown in the invoices that plaintiff issued for the services it provided. Moreover, the claim was founded upon plaintiff's records, which were appended to the certification submitted in support of the application for entry of the final judgment by default. Thus, entry of the final judgment by default by the clerk was proper.
Defendant nevertheless argues that a proof hearing was required because plaintiff's claim was for unliquidated damages. However, as noted, Rule 4:43-2(a) does not impose such a requirement. Even if "liquidated damages" was the test, plaintiff's application met that requirement. Liquidated damages are damages "'the amount whereof has been ascertained by judgment or by the specific agreement of the parties, or which are susceptible of being made certain by mathematical calculation from known factors.'" Schettino v. Roizman Dev., Inc., 158 N.J. 476, 486-87 (1999) (quoting 25 C.J.S. Damages § 2 (1966)). Based on the invoices submitted to the trial court, plaintiff's claim was capable of being "made certain by mathematical calculation."
We have considered defendant's other contentions and conclude that they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION