NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0952-06T50952-06T5

LINDA DAWSON,

Plaintiff-Respondent,

v.

ISAAC WRIGHT,

Defendant-Appellant.

________________________________

Submitted: October 15, 2007 - Decided:

Before Judges Stern and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County, DC-3300-97 and DJ-199754-00.

Frances A. Hartman, attorney for appellant.

Linda Dawson, respondent pro se.

PER CURIAM

Defendant Isaac Wright seeks our review of an August 31, 2006, order denying his post-judgment application to set aside a judgment by default held by plaintiff Linda Dawson, dismiss her complaint and release funds to him that were held in escrow to satisfy Dawson's judgment. The issues in this appeal are best understood in the context of the rather convoluted procedural history of this case.

Dawson instituted an action in the Special Civil Part and advised the Special Civil Part clerk to attempt service of process on Wright in care of Tarheel Funding, 1976 Flatbush Avenue, Brooklyn, New York 11234-2818. Sometime later a default was entered and Dawson then secured a $9,869.39 judgment by default against Wright on November 21, 1997, in connection with her claim that Dawson owed her a sum of money, apparently from a period of time when Wright lived in Dawson's home. Dawson docketed the judgment in the Superior Court on October 4, 2000. The total due on the judgment as of September 30, 2000, was $11,688.13.

On May 15, 2001, Dawson served a Notice of Motion for Order in Aid of Execution on Wright in care of Tarheel Funding, 1976 Flatbush Avenue, Brooklyn, New York 11234-2818 by certified and regular mail and on Frances A. Hartman, Esquire, 300 Chester Avenue, P.O. Box 630, Moorestown, New Jersey 08057 by regular mail only. Ms. Hartman was the attorney of record for Wright in his action against the State of New Jersey, the County of Somerset and others in connection with Wright's wrongful conviction of various drug offenses. Dawson certified that the complaint had been served on Wright at the Tarheel Funding address.

On June 22, 2001, Dawson secured an order forbidding disbursement of any funds that might be obtained by settlement or judgment in Wright's action. The order required that Dawson serve the order upon Wright and Hartman. Dawson certified that on July 11, 2001, she served the order forbidding disbursement of funds upon Wright in care of Tarheel Funding, 1976 Flatbush Avenue, Brooklyn, New York, by regular mail and upon Hartman by certified and regular mail. The certified mail was accepted by Hartman and the receipt was returned to Dawson. Dawson's certification of service was filed on July 18, 2001. On May 4, 2005, Dawson, upon learning that Wright's case had settled, contacted Hartman to verify that Dawson was entitled to disbursement. On June 6, 2005, Hartman contacted Dawson and sent a proposed consent order restraining the disbursement of only $13,595.45 rather than the full settlement of $412,500.

It was not until August 1, 2005, that Wright filed a motion to vacate the default judgment. In support of that relief Wright certified that he had never received a copy of the original complaint, he never lived at Tarheel Funding, a commercial establishment, and he never had any contact with Tarheel's owner after April 1997. He denied that Dawson served him with her 2001 motion to bar disbursement of funds and stated that Hartman did not respond to the motion because she was not representing him in Dawson's action. He also asserted that, after the press reported his 2005 settlement with the State, Dawson for the first time served Hartman with the order restraining disbursement of the funds.

The motion to vacate default was heard on November 10, 2005, but Hartman did not appear because she had no notice of the hearing date. Nonetheless, the trial judge vacated the judgment by default based on lack of in personam jurisdiction. He found that service was not properly made upon Wright because the summons and complaint had been mailed to him out of state rather than served personally. In the order entered by the judge, he permitted disbursement of all of the settlement funds except for $16,000, which was to be retained by Hartman pending further order of the court.

Dawson then filed a motion for reconsideration dated February 14, 2006. The certification supporting that motion is not in the record before us. The motion was served only on Hartman, who filed no opposition, claiming that she no longer represented Wright. On May 16, 2006, the court stated on the record that it was granting the motion because service by mail in New York was valid for purposes of in personam jurisdiction pursuant to R. 4:4-4(b)(1)(A). The court specifically stated that its decision of November 10, 2005, was incorrect and an order reinstating the judgment was entered on May 16, 2006. No appeal was taken from this order.

Two weeks later, Dawson filed a motion for turnover of funds and served the motion on Wright by certified and regular mail addressed to 1767 Old Whitesville Road, Moncks Corner, South Carolina, and upon Hartman by regular mail. Dawson certified that she served the May 16, 2006, order simultaneously with the turnover motion because she had only received it on May 25, 2006. She certified that the Postmaster in Moncks Corner indicated on a postal-address verification form that Wright still lived at that address. On June 12, 2006, the court ordered the release of funds from escrow and required Hartman to disburse $13,689.45 plus 56 cents per diem for each day after June 30, 2006, that the monies were not paid.

Thereafter, Hartman submitted an order on Wright's behalf that required Dawson to show cause why the orders of May 16, 2006, and June 12, 2006, should not be set aside, why the complaint should not be dismissed and why the funds held by Wright's attorneys should not be released to him. In support of the order to show cause, Wright certified to the essential facts respecting his relationship with Dawson, stated that he lived with her for a short period of time after he was released from prison on December 16, 1996, and denied owing any money to her during the period of time he lived in her home. He also certified it was not until "several years" after he left Dawson's home that he discovered that there was not only a suit against him but a judgment in favor of Dawson. He again denied receiving service of the original complaint or any of the motions filed prior to June 27, 2006. He asserted that he had not lived in Moncks Corner since he was eighteen and that Dawson was well aware that he did not live there.

Hartman certified that when she received Dawson's February 14, 2006, notice of motion for reconsideration she advised the court that she was not representing Wright in Dawson's action and that the motion should be personally served upon Wright. Hartman also certified that she had called on three occasions to determine the return date of Dawson's motion for reconsideration and the date when responsive papers were required. On each occasion, court personnel told Hartman that there was no motion pending and nothing was showing as pending in the Automated Case Management System.

Hartman further certified that she did not learn that an order granting reconsideration had been entered until she was served with Dawson's May 30, 2006, notice of motion for turnover of funds. Hartman also certified that the turnover motion had not been served on Wright at a viable address and that she again contacted the court to try to determine the return date of the motions. She was advised by the court that the motion was defective and not pending. Thereafter, on June 19, 2006, counsel was served with an order to release funds from escrow.

Hartman expressed that the matter was extremely troubling in that Dawson had repeatedly avoided complying with service requirements, the original complaint had never been served pursuant to the Rules of Court and subsequent applications were never served upon Wright. The order to show cause was heard on July 28, 2006.

At the hearing, the judge acknowledged on the record that there was a dispute of fact as to whether service of the complaint was properly made. The judge concluded that Dawson had not sustained the burden of proving that there was valid service on Wright at the time of the original judgment.

The judge then decided that Wright had not made a timely application to vacate the default judgment. The judge inferred that Wright learned of the lawsuit as early as July 19, 2001, through Hartman. Noting that the first application to vacate the default judgment was on August 1, 2005, the judge concluded that relief under R. 4:50-1(a), (b) and (c) was not available to the defendant as a basis for voiding the judgment. The court also found that Wright had provided no explanation for the delay in seeking to set aside the default judgment. He did find that Wright had established a genuine issue respecting Dawson's entitlement to a judgment. Nonetheless, the judge concluded that it was not reasonable to wait four years before moving to vacate the judgment and for that reason denied Wright's application. An order denying the application was entered on August 31, 2006, and this appeal followed.

In his notice of appeal, Wright limited the appeal to the August 31, 2006, order. The appeal was not timely as to any of the prior orders. As a consequence, the only issue before us is whether the trial court's conclusion that Wright's application to vacate the default judgment was not filed within a reasonable time may be sustained on appeal. Wright contends on appeal that the trial judge was mistaken in exercising his discretion to decide the matter without a plenary hearing and to reinstate the default judgment, thus denying Wright the constitutional due process to which he was entitled.

Central to the judge's decision not to vacate the judgment was his fact-finding that Wright knew of the judgment as early as 2001 and failed to act. The scope of our review of a fact-finding made by the Special Civil Part judge in this case is limited. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc., v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

We are satisfied that no plenary hearing was required because this finding of fact was based on undisputed evidence. It was consistent with the absence of any certification from Hartman claiming that she had not advised Wright about Dawson's judgment when she received a copy of the order forbidding disbursement of funds. It was also undisputed that Hartman received that order in 2001; Dawson certified that she mailed it to her in 2001 and Hartman did not deny receiving it in 2001. The finding that Wright knew of the judgment in 2001 is also consistent with Wright's certified statement that he became aware of the judgment several years after he left Dawson's home. The latter event occurred "shortly after" December 16, 1996, which was three to four years before service of the order forbidding disbursement of any funds, i.e., in or around 2001. The fact-finding that Wright learned of the judgment in 2001 is binding on appeal because it was "supported by adequate, substantial and credible evidence." Rova Farms, supra, 65 N.J. at 484.

The issue which we are called upon to decide is whether a judge may refuse to vacate a judgment by default for lack of a timely application pursuant to R. 4:50-1 when service of the summons and complaint was determined to be defective. This is a question of law, and "de novo review is therefore appropriate." Rowe v. Hoffman-La Roche Inc., 383 N.J. Super. 442, 452 (App. Div. 2006) (citing Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)), reversed on other grounds, 189 N.J. 615 (2007). "A