Brady v. Brauer

• Decision Date: 13 February 1987
• Citation: 529 A.2d 159,148 Vt. 40
• Court: Vermont Supreme Court
• Parties: Robert BRADY d/b/a Robert Brady Associates v. David BRAUER and Matthew Pitoniak. No 85-213.

Page 159

529 A.2d 159

148 Vt. 40

Robert BRADY d/b/a Robert Brady Associates v. David BRAUER and Matthew Pitoniak.

No 85-213.

Supreme Court of Vermont.

Feb. 13, 1987.

Motion for Reargument Denied April 9, 1987.

P. Scott McGee and Claude Thaddeus Buttrey, Law Clerk, Norwich, (on the brief), for plaintiff-appellee

Jon Anderson of Goldstein, Manello & Burak, Burlington, and Robert D. Cultice and Stephen M. Voltz of Goldstein & Manello, Boston, Mass., for defendant-appellant

Before ALLEN, C.J., HILL and PECK, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

BARNEY, Chief Justice (Retired), Specially Assigned.

In April, 1982, a default judgment in the amount of $38,663.62, against defendant Brauer, a nonresident, was granted based on notice by publication under V.R.C.P. 4(g). This is an appeal from a denial of a motion to set aside that judgment under the provisions of V.R.C.P. 60(b). The defendant Pitoniak was personally served in Massachusetts. In 1983 he stipulated to a judgment against himself by which he agreed to pay the difference between any amount collected from defendant Brauer and $28,000, but not more than $15,000.

Brauer brought this motion in January, 1985, seeking to have this case heard on its merits and asserting the existence of valid defenses to the original action. The motion was denied below, as was a subsequent motion to reconsider which contained further allegations and affidavits in support of relief. Appeal followed.

The basic dispute involves architectural services contracted for and allegedly performed by the plaintiff in connection with a projected apartment house complex to be built in West Townshend, Vermont, by a Vermont partnership not yet in existence. The contract was executed by the plaintiff and defendant Pitoniak, and also signed by defendant Brauer as "attorney for a limited partnership to be formed." The contract was, for the most part, a standard architectural contract with provision for disputes to be settled by arbitration, limitations on compensation for additional services and providing for no payment for schematic design services until the design had approval from the Vermont State Housing Finance Agency and the Vermont State Housing Authority.

There is a further term inserted under Article 15 of the contract which provides that no funds are "due and payable until a construction mortgage is issued on the property, at which time the architect is to be paid first." Although the contract with this provision is in the printed record as an exhibit attached to the plaintiff's original complaint, the plaintiff claims that that record is wrong and there is no such provision in the contract as actually pled. This dispute cannot be resolved in this proceeding by this Court, since it involves issues of fact not yet reduced to findings by a trier of fact.

In any event, the plaintiff, in his pleadings, alleged performance of services entitling him to $35,388.82 plus interest and costs. This claim became the default judgment.

The principal challenge to that judgment by Brauer rests on claimed due process shortcomings sufficient to amount to good cause for setting the judgment aside under V.R.C.P. 60(b)(6), even if the defects do not provide a constitutional basis on which to invalidate the entry of judgment. If relief should have been afforded under V.R.C.P. 60(b)(6), it will not be necessary to reach the constitutional issue. To resolve the question recourse must be had to the pleadings and the record. These demonstrate the circumstances of the service of process, and the information in the possession of the plaintiff most likely to have a bearing on the manner of getting notice to the defendant according to the requirements of law.

It is unquestioned that at the time of alleged performance under the contract that the plaintiff knew that Brauer was a resident of Massachusetts, living at 144 Farm Street, Dover, Massachusetts. The plaintiff acknowledged that bills for services rendered were sent to that address and not returned. It further appears from allegations made by the plaintiff in connection with this litigation that Brauer held out "to all the world" that 144 Farm Street was his residence. The plaintiff identified Brauer as a businessman and Massachusetts attorney whose 1984 updated Bar registration showed this residence as continuing throughout the time that this suit was instituted and judgment obtained.

The actual service undertaken to legally notify the defendant of this pending litigation must be examined in the light of this information. The process was sent to Dover to be served at that address by a deputy sheriff. According to the plaintiff, when the process server went to that address, he was told by defendant's wife that Brauer no longer lived there. No copy of the process was left with her. The papers were returned to the plaintiff along with a Florida address for Brauer furnished by the wife. The process was then sent to Florida. It was returned unserved, the report being that Brauer was not known at the address given, nor discoverable in a search of the area.

This information was then presented to Windsor Superior Court in the form of an affidavit sworn to on information and belief by plaintiff's attorney, unaccompanied by any affidavits of returns of service from any process server involved. Based on this information, the plaintiff requested service by publication in a newspaper of general circulation in Windsor County with a copy to be mailed to the Florida address as the defendant's last known address. This was granted.

The provisions of V.R.C.P. 4(e) make the proper manner of service without the state the same as service within the state under V.R.C.P. 4(d). That rule provides that service be made on a defendant who is not available for personal service by leaving a copy of the summons and complaint at his dwelling or usual place of abode with some person of suitable age and discretion then resident therein. If that fails, and is properly evidenced by affidavit, the court may order that the process simply be left at the defendant's dwelling house or usual place of abode. Publication is available "if the court deems publication to be more effective." V.R.C.P. 4(d)(1).

The Reporter's Note to V.R.C.P. 4(d)(1) is significant:

The rule permits leaving of process at the last place of abode when no suitable person is present only on motion and a showing of inability to make service by other methods. In such a case, the court has the option to permit service by publication when such service might be more effective, as when a dwelling house is abandoned. (Emphasis added.)

It is the law that the party at whose instance a writ or execution has issued, or his attorney, has the right to give the officer directions as to service, which, if lawful, he is bound to follow. Gross v. Gates, 109 Vt. 156, 162, 194 A. 465, 468 (1937). Therefore, the responsibility for any failure to fulfill the provisions of V.R.C.P. 4(d) and (e), if the opportunity was presented, must be borne by the plaintiff.

In seeking relief under V.R.C.P. 60(b)(6), in the face of a denial by the lower court, the defendant, as moving party, has the burden of proving that the denial below was an abuse of discretion. Darken v. Mooney, 144 Vt. 561, 566, 481 A.2d 407, 410 (1984). However, the denial of relief from a default judgment must have strong support, and a court ought to be indulgent in reopening judgments entered by default. Vahlteich v. Knott, 139 Vt. 588, 590, 433 A.2d 287, 288 (1981). A default judgment issued without the opportunity to be heard is not favored over one rendered after full hearing, and relief ought not to be denied for insufficient reasons.

Here we find that the lower court did not properly apply the remedial purposes of V.R.C.P. 60(b), because it did not adequately take into account the due process shortcomings of the service of process in this case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950), sets out the standards which substituted or constructive service...