Jameson v. Great Atlantic & Pac. Tea Co.

• Decision Date: 20 October 2003
• Parties: Frederick JAMESON and Susan Jameson, Plaintiffs-Respondents, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, and A & P Supermarkets, Defendant-Appellant.
• Court: New Jersey Superior Court

833 A.2d 626

363 N.J. Super. 419

Frederick JAMESON and Susan Jameson, Plaintiffs-Respondents, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, and A & P Supermarkets, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued September 23, 2003.

Decided October 20, 2003.

Stanley Fishman argued the cause for appellant (Fishman & Callahan, attorneys; Lauren B. DiSarno, on the brief).

Stephen J. Alexander argued the cause for respondents (Frey, Petrakis, Deeb, Blum, Briggs & Mitts, attorneys; Joseph H. Blum and Mr. Alexander, on the brief).

Before Judges STERN, A.A. RODRÍGUEZ¹ and LEFELT.

The opinion of the court was delivered by

LEFELT, J.A.D.

Plaintiff Frederick Jameson fell on melted ice cream in the frozen food aisle of a Morris County supermarket owned by defendant, The Great Atlantic and Pacific Tea Company (A & P). Plaintiff and his wife live in Warren County and filed suit in Middlesex County. Even though A & P's corporate office is located in Montvale, plaintiff contends that A & P was properly served when a Middlesex County sheriff officer left the summons and complaint with the head cashier, Kelly A. Indyk, at the courtesy counter of one of A & P's markets in Edison, a town in Middlesex County. The sheriff officer's return of service indicated that Indyk was authorized to receive process. A & P failed to answer plaintiff's complaint, and plaintiff eventually obtained a $115,000 default judgment, which was soon after recorded as a lien.

A & P now appeals from the trial judge's denial of its three motions attempting to vacate the default judgment. A & P argues before us, as it did in the trial court, that because service was defective, plaintiff's judgment was void and should have been vacated. We reverse and remand for further proceedings.

I.

We add some procedural facts to place the dispute in more precise focus. Before filing its complaint, plaintiff's attorney had some communications with Crawford & Company, A & P's claims administrator. At no point, before or after beginning this lawsuit, did plaintiff's counsel inform Crawford that a complaint was either imminent or filed. Similarly, the record does not reflect that counsel contacted Crawford after the corporation failed to answer by October 16, 2001.

Instead, plaintiff's counsel obtained a default, certifying that the Middlesex County sheriff officer, on September 10, 2001, had personally served A & P. Counsel attached a copy of the officer's affidavit of service containing a check mark next to served an "agent authorized to accept service," with the cashier Indyk's signature as the person served.

On March 5, 2002, via overnight mail to the Edison supermarket, plaintiff's counsel attempted to notify A & P of a doctor's deposition scheduled for March 8, 2002. On March 6, 2002, Indyk called plaintiff's counsel inquiring about the deposition. Counsel informed Indyk that plaintiff filed a complaint against A & P and the sheriff had left it with the store. Counsel further certifies, "Ms. Indyk asked who accepted service and I read her the Affidavit of Service with her name and signature. Ms. Indyk replied, `That's me.'" Plaintiff's counsel further certifies that he "informed Ms. Indyk that Defendant had not entered an appearance or filed a responsive pleading... [and] notified Ms. Indyk of the status of default and ... she should contact Defendant's attorneys and have them contact me." In response, plaintiff's counsel certifies that Indyk explained, "the mail run doesn't go out until Sunday," to which counsel replied "the deposition would go forward unless we hear from Defendant's attorneys."

On March 8, 2002, again via overnight mail to the Edison market, plaintiff's counsel attempted to notify A & P of a proof hearing scheduled for March 14, 2002 in Middlesex County. A & P failed to appear at the proof hearing and the trial judge granted plaintiff's motion and on March 20, 2002 awarded plaintiff the default judgment at issue in this case. Plaintiff recorded the judgment as a lien on March 26, 2002.

A & P's first motion to vacate the default judgment was made soon after plaintiff attempted to execute on the judgment. As previously indicated, A & P made three motions attempting to vacate the default judgment. As support for its position, A & P supplied an attorney's certification indicating that Indyk was neither a manager nor an agent authorized to accept service, and that Indyk told the attorney that the sheriff's officer never asked Indyk whether she was so authorized. Furthermore, A & P's attorney certifies Indyk "never represent[ed] to anyone that she was so authorized."

II.

It is elementary that service must be accomplished in accordance with the pertinent rules in such a way as to afford "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Davis v. DND/Fidoreo, Inc., 317 N.J.Super. 92, 97, 721 A.2d 312 (App.Div.1998), certif. denied sub nom., Davis v. Surrey Downs/Fidoreo, Inc., 158 N.J. 686, 731 A.2d 45 (1999) (quoting from Mullane v. Cent. Hanover & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950)).

When "a default judgment is taken in the face of defective personal service, the judgment is [generally] void." Rosa v. Araujo, 260 N.J.Super. 458, 462, 616 A.2d 1328 (App.Div.1992), certif. denied, 133 N.J. 434, 627 A.2d 1140 (1993). A default judgment will be considered void when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice. Sobel v. Long Island Entm't Prod., Inc., 329 N.J.Super. 285, 293-94, 747 A.2d 796 (App.Div.2000). Such a judgment will usually be set aside under R. 4:50-1(d). If defective service renders the judgment void, a meritorious defense is not required to vacate the judgment under R. 4:50-1(d).

With these basic principles in mind, it is instructive to detail each of the various relevant proof burdens pertaining to this dispute. Because A & P sought to vacate a default judgment, it had the overall burden of demonstrating that its failure to answer or otherwise appear and defend should be excused. Eg. Resolution Trust Corp. v. Associated Gulf Contractors, 263 N.J.Super. 332, 340, 622 A.2d 1324 (App.Div.),

certif. denied,

134 N.J. 480, 634 A.2d 527 (1993).

Also, in this case the sheriff's affidavit of service placed another burden on A & P. A "sheriff's return of service is part of the record and raises a presumption that the facts recited therein are true." Resolution Trust Corp., supra, 263 N.J.Super. at 343, 622 A.2d 1324 (quoting Garley v. Waddington, 177 N.J.Super. 173, 180, 425 A.2d 1084 (App.Div.1981)); Intek Auto Leasing v. Zetes Microtech Corp., 268 N.J.Super. 426, 433, 633 A.2d 1029 (App.Div.1993); Goldfarb v. Roeger, 54 N.J.Super. 85, 90, 148 A.2d 189 (App.Div. 1959). Because the sheriff's return facially indicates compliance with the pertinent service rule, it is prima facie evidence that service was proper. Garley, supra, 177 N.J.Super. at 180, 425 A.2d 1084.

If Indyk was authorized to accept service on behalf of A & P, service upon the corporation was proper under R. 4:4-4(a)(6), which permits service upon "any person authorized by appointment ... to receive service of process on behalf of the corporation." Therefore, because of the presumption, if A & P failed to produce any evidence "tending to disprove" the sheriff's return, there would be no basis to vacate the default judgment. N.J.R.E. 301. In that contingency, A & P would have failed to demonstrate a reasonable excuse for its failure to appear and have been unsuccessful in meeting its overall burden of proving sufficient reason for vacating the default judgment under R. 4:50-1.

In order for the sheriff's return to be established as false, clear and convincing evidence must be submitted. Resolution Trust Corp., supra, 263 N.J.Super. at 344, 622 A.2d 1324; Garley, supra, 177 N.J.Super. at 180-81, 425 A.2d 1084; Seymour v. Nessanbaum, 120 N.J. Eq. 24, 25, 184 A. 403 (Ch.1936).

If some evidence is presented tending to disprove the return, but is not sufficient to establish that the return is false, the presumption is nevertheless eliminated from the case. "If the opposing party introduces evidence `tending to disprove' the presumed fact, the presumption disappears." Ahn v. Kim, 145 N.J. 423, 439, 678 A.2d 1073 (1996) (quoting N.J.R.E. 301).

"A presumption ... is no substitute for affirmative proofs." State v. Cuccio, 350 N.J.Super. 248, 257, 794 A.2d 880 (App.Div.), certif. denied, 174 N.J. 43, 803 A.2d 638 (2002). "The function of a presumption is to allocate the burden of producing evidence; it should not be used as a surrogate for substantive evidence or as a substitute for satisfying the burden of proof assigned by law." Id. at 257 (internal citations omitted). Thus, "a valid presumption can be used to establish a prima facie case, but the presumption normally disappears in the face of conflicting evidence." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 301 (2003) (quoting the 1991 Supreme Court Committee Comment).

Here, A & P submitted an attorney's certification to attempt to rebut the presumption created by the sheriff's return of process. A & P did not produce Indyk's, the sheriff officer's or any corporate officer's certification. Instead, A & P simply submitted counsel's certification which utilized hearsay to assert that Indyk was not authorized and never told the sheriff officer that she was authorized to accept process on behalf of A & P. This certification was inadequate to establish that Indyk was not authorized. See Claypotch v. Heller, Inc., 360 N.J.Super. 472, 489, 823 A.2d 844 (App.Div.2003)

. The attorney's certification alone, does not contain admissible evidence, and would be insufficient to demonstrate that the sheriff's return was false. Cf. Garley, supra, 177 N.J.Super. at...