1、SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONNo. A-005249-03T1Evergreen Meadows Associates A Partnership of New Jersey,Plaintiff and Respondent, vs.Louis Lilakos,Defendant and Appellant. REPLY OF APPELLANT ByLouis LilakosOn appeal from Superior Court, Special Civil Part, Middlesex In the State of
2、New Jersey,Number DC-002570-97 Motion To Vacate Default JudgmentHonorable Judge Frank M. Ciuffani 2TABLE OF CONTENTSTABLE OF AUTHORITIES.3PROCEDURAL HISTORY 4STATEMENT OF THE FACTS .5ARGUMENTS 11I. THE LOWER COURTS DETERMININATION TO DENY DEFENDANTS MOTION TO VACATE DEFAULT JUDGMENT SHOULD BE REVERS
3、ED AS THE RECORD DEMONSTRATES CLEAR ABUSE OF DISCRETION SUPPORTED BY LOWER COURT ERRORS. THE RECORD INVITED CONSIDERATION FOR VACATING DEFAULT JUDGMENT ON SEVERAL GROUNDS. THE RECORD CLEARLY SHOWS THE MOST CONVINCING GROUNDS FOR VACATING THE DEFAULT JUDGMENT, WHICH RESTS ON THE CLEAR EVIDENCE THAT T
4、HE JUDGMENT IS VOID THEREBY DEPRIVING THE COURT JURISDICTION IN THE SUBJECT MATTER11A. No proof demonstrating an unfulfilled obligation upon the defendant to the plaintiff was offered in the court below or in obtaining original default judgment thus rendering judgment void. .11B. A void judgment is
5、a legal nullity and court decisions stemming from it are also void. Defendant challenges the courts jurisdiction in the subject matter in this case.16C. Service of summons and complaint that allowed counsel to pursue a default judgment was improper despite misguided claims by plaintiffs counsel that
6、 notice was reasonably calculated to inform18II. IT WOULD BE PROPER FOR APPELLATE COURT TO VACATE DEFAULT JUDGMENT BECAUSE THE LOWER COURTS FINDINGS ARE CLEARLY NOT SUPPORTED BY THE EVIDENCE AND THE FACTS DEMONSTRATE BEHAVIOR THAT RUNS COUNTER TO THAT ESTABLISHED IN BOTH THE CODE OF JUDICIAL CONDUCT
7、 AND NEW JERSEY RULES OF PROFESSIONAL CONDUCT 19A. Lower courts findings are not supported by the evidence presented.20B. Spirit and intent of the law is not upheld and proceedings characteristic of that which would erode public trust and confidence 20CONCLUSION213TABLE OF AUTHORITIESCasesBates v. B
8、oard of Education, Allendale Community Consolidated School District No. 17 Ill.2d (1990) 17Camden Safe Deposit People ex rel. Gowdy v. Baltimore In re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992) (“if the order is void, it may be attacked at any time in any proceeding, “; Evans v. Corpora
9、te Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (2nd Dist. 1990) (“a void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally“). An examination of the record supporting entry of the default judgment will reveal that the judgment is void. The Appella
10、te Court would be justified in reversing the lower courts denial of motion to vacate the default judgment on grounds formulated in R. 4:50-1(d) and ordering all monies collected by plaintiff from defendant returned to the defendant.The plaintiff must show a prima facie case, even though judgment was
11、 by default. If this is not the case, then anyone can on the flimsiest allegations obtain a default judgment against nearly anyone.In Cooper and Cooper v. Mullin 2 N.J.L 98 (1806) the court ruled that even after default, the plaintiff must proceed to prove his demand. In the case of T & S Painting v
12、. Baker Residential, 333 N.J. Super. 189, 193 (App. Div. 2000) the court again ruled 18with respect to default and Rule 6:6-3(a), “The rule requires a “particular statement of the items of the claim,“ and a copy of the relevant contract or books of account, particularly important where, as here, the
13、 dispute concerns lack of payment for contractual work said to have been completed.”In this case the contracts that should have been attached to the complaint or affidavit were the lease and the lease renewal. Opposing counsel produced neither the complaint nor the documents that should have been at
14、tached. Without the complaint, there is evidence of neither a valid default judgment nor proper service. Judge could have provided relief from judgment on the grounds that either the default judgment was void or that service of summons and complaint was not effectuated. C. Service of summons and com
15、plaint that allowed counsel to pursue a default judgment was improper despite misguided claims by plaintiffs counsel that notice was reasonably calculated to inform. Plaintiffs counsel misconstrues the intent of service by mail program as an alternative to personal service. Service by mail still req
16、uires that the complaint be sent to a defendants current place of residence or “last known address” and “ last known address does not mean the last address known to the plaintiff, but does mean the last address of the defendant so far as is known, that is, by those who under the ordinary circumstanc
17、es of life would know it.” W.S. Frey v Heath, 158 N.J. 327 (1999). Even when using an address that is “reasonably calculated to inform” the intent is that the calculation precede the service not to twist the facts with far reaching assumptions in an effort to fit a reasonable calculation well after
18、the service was attempted. The intention that the “reasonable calculation to inform” be calculated prior to the summons and complaint can 19be inferred from the requirement that a complaint contain an affidavit “that sets forth the source of the address used for service of the summons and complaint”
19、. (R.6:6-3) Furthermore, the finding “The signature on the certified mail receipt was plainly not that of Heath. No effort was made to confirm that Heath received the notice. The Law Division has found as a fact that Heath had no actual notice” W.S. Frey v Heath, 158 N.J. 327 (1999) can be applied i
20、n the current case as the signature on the certified mail receipt was clearly not the defendants and there was no attempt on plaintiffs counsel to confirm that defendant had received notice thus the conclusion that the defendant had no actual notice. Whether by mail or personal, “Service must be per
21、sonal upon the defendant, or the summons left at his dwelling house.” Rogers v. Jarman 3 N.J.L. 527. Also, “a summons must be served on him at the dwelling house in which he is living at the time of the service.” Camden Safe Deposit & Trust Co. v. Barbour 48 A. 1008. Judge is not able to find that s
22、ervice was to an address in accordance with Rogers and Camden cited above. Therefore, Judges conclusion “And that service was proper.” (Transcript of Evergreen Meadows vs. Louis Lilakos, page 20) still does not logically follow from the findings and applicable and relevant interpretations of proper
23、service.II. IT WOULD BE PROPER FOR APPELLATE COURT TO VACATE DEFAULT JUDGMENT BECAUSE THE LOWER COURTS FINDINGS ARE CLEARLY NOT SUPPORTED BY THE EVIDENCE AND THE FACTS DEMONSTRATE BEHAVIOR THAT RUNS COUNTER TO THAT ESTABLISHED IN BOTH THE CODE OF JUDICIAL CONDUCT AND NEW JERSEY RULES OF PROFESSIONAL
24、 CONDUCT20A. Lower courts findings are not supported by the evidence presentedDefendant stands by all arguments presented in defendants initial brief despite all the unsubstantiated, irrelevant, and twisted ramblings by plaintiffs counsel. Many of the inconsistencies ingrained in plaintiffs brief ha
25、ve been addressed. Unfortunately, the 20 page limit in this reply brief prohibits defendant from addressing the numerous others. B. Spirit and intent of the law is not upheld and proceedings characteristic of that which would erode public trust and confidenceAgain, defendant allows the facts demonst
26、rated within and in defendants brief to affirm this point not to “leverage his argument” (PB-17) to vacate default judgment but to advocate the noble principles upon which this country was founded.Finally, plaintiffs argument (PB-21) starting with “Defendant cites Davis” is nearly tantamount to argu
27、ing: All men are mortal, Aristotle is a man, therefore no man but Aristotle is mortal. In keeping stride with other arguments offered by plaintiffs counsel, this one is obviously absurd. 21CONCLUSIONFor the foregoing reasons and reasons put forth in defendants first brief, the decision of the Superior Court, Special Civil Part in Middlesex County should be reversed, default judgment should be vacated, and all monies received by plaintiff from defendant ordered returned to defendant.Respectfully submitted this 3rd day of October, 2004._ Louis Lilakos
