Granite Mut. Ins. Co. v. Griggs, No. 120-5-10 Oecv (Eaton, J., Jan. 31, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                  STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Orange County                                                                              Docket No. 120-5-10 Oecv

Granite Mutual Insurance Co.
       Plaintiff

v.

Stephen Griggs and Louis Weintraub
       Defendants


                                              Decision on Pending Motions

         Defendant Louis Weintraub was the owner of a commercial and residential
apartment building located in downtown Chelsea, Vermont. The building was destroyed
in a fire in January 2009. According to plaintiff’s allegations in this subrogation
complaint, the cause of the fire was space heaters that were left on in the basement by
Mr. Weintraub’s agent, defendant Stephen Griggs.

        Plaintiff commenced the action by filing on May 27, 2010. According to the
affidavit of service that was filed with the court, service was made on Mr. Weintraub on
June 23, 2010. The affidavit indicates that service was made at [address redacted], in
Clearwater, Florida, by leaving a copy of the summons and complaint with an adult
household member residing therein. The household member was identified as one Maria
Iguanco, a cousin and co-occupant with Mr. Weintraub.

     Mr. Weintraub never answered the complaint. Default judgment was granted on
November 9, 2010.

         On November 24, 2010, Mr. Weintraub made an appearance in this action
through his attorney and filed a motion to vacate the default judgment, and to dismiss the
complaint. His motion included an affidavit from his daughter, Lisa Williams, who
testified that she indeed lived with her father at [address redacted] until November 1,
2009, but that they moved out on that date, and were not living there at the time of
service. Ms. Williams moreover testified that she does not know Maria Iguanco, and is
not related to her, and has never lived with anyone by that name. Mr. Weintraub’s
motion included other allegations of dishonesty directed towards the process server.

        On December 28, 2010, the court granted the motion to vacate the default
judgment as unopposed by plaintiff. In granting the motion, the court relied solely on
Ms. Williams’ representation that her father did not live at the address where service was
made, and gave no weight to the allegations of dishonesty. The court’s exercise of
discretion in granting the motion was informed by the policies favoring adjudication of
claims on the merits. See, e.g., Desjarlais v. Gilman, 143 Vt. 154, 157 (1983) (“A
judgment by default effectively deprives a defendant of an opportunity to have the merits
of his position determined through the normal adversary judicial process.”).

       As it turns out, plaintiff had indeed filed an opposition the day before the court
took action; the pleadings and the decision crossed in the courthouse mail. Plaintiff filed
a motion for reconsideration on January 6th, 2011, effectively asking the court to
consider the opposition, which the court now does.

       Plaintiff takes issue with the allegations of dishonest conduct on the part of the
process server. As noted above, however, the allegations of dishonesty played no role in
the court’s decision to vacate the default judgment. It is not necessary to make any
findings on that issue.

         Plaintiff also argues that service was effective. Plaintiff points out that a process
server attempted service on the [street name redacted] address in November 2010, and
was told by the current occupants that defendant “moved out three months ago.” Plaintiff
argues that this means that defendant was living in the apartment in June 2010. It must
be noted, however, that this statement is hearsay attributable to the persons who were
living at the [street name redacted] address and who were trying to persuade the process
server that Mr. Weintraub was no longer living there. It does not have many hallmarks of
reliability. The court is not persuaded that much insight would be gained into Mr.
Weintraub’s actual moving date if these nameless tenants were to be somehow located
for the purpose of offering testimony in Vermont.

        Plaintiff also argues that it mailed a “courtesy copy” of the motion for default
judgment to Ms. Williams at the [street name redacted] address, and that the mail was not
returned as undeliverable. Yet this does not prove anything about whether Ms. Williams
and Mr. Weintraub were living at the [street name redacted] address at the time of service
of the complaint. Nor does it prove whether Mr. Weintraub ever received the summons
and complaint.

        None of this causes the court to reconsider its earlier determination: Mr.
Weintraub was not living at the [street name redacted] address at the time service was
made there. As a result, service was not effective. See Shurman v. Atlantic Mortg. &
Inv. Corp., 795 So.2d 952, 954 (Fla. 2001) (explaining that service at a person’s “usual
place of abode with any person residing therein” under the Florida procedural rules
means service at “the place where the defendant is actually living at the time of service”).
The default judgment was therefore properly vacated. See 4A Wright, Miller, Kane &
Marcus, Federal Practice and Procedure: Civil 3d § 1096 (“If . . . the requirements of
Rule 4(e) are not complied with, service will be ineffective and a default judgment based
on that service will be vacated.”).

       Defendant has also moved to dismiss the complaint for reasons related to the
passage of time between the filing of the complaint and effective service. Any such
dismissal, however, would be without prejudice to the filing of a new complaint, and



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there does not appear to be any reason why defendant would benefit from dismissal of the
instant action and the commencement of a new one. In the absence of any prejudice
accruing to defendant, the motion to dismiss the complaint is denied. See Mountainview
Ass’n, Inc. v. Town of Wilmington, 147 Vt. 627, 629 (1987) (“[I]f service of process is
defective, but a reasonable prospect exists that plaintiff could properly serve defendant, a
court should treat a motion to dismiss as a motion to quash service and retain the case
pending effective service.”).

        Some documents have now been served on plaintiff, but it is not apparent whether
the summons and complaint are among the documents that have been served.
Accordingly, the court will grant plaintiff sixty days within which to effect service upon
Mr. Weintraub. In view of the fact that defendant has now appeared in this action
through an attorney, and in view of defendant’s obligation to avoid unnecessary costs of
service, V.R.C.P. 4(l)(2), the court does not anticipate that there will be any further
disputes about the manner or method of service.

                                          ORDER

          (1)    Plaintiff’s Motion to Reconsider (MPR #4), filed January 6, 2011, is
denied;

          (2)    Defendant’s Motion to Dismiss (MPR #3), filed November 24, 2010, is
denied;

          (3)    The default judgment remains vacated;

        (4)    Plaintiff shall complete service within sixty days. After the returns of
service have been filed, the court shall set Plaintiff’s Motion for Writ of Attachment
(MPR #1) for hearing.

          Dated at Chelsea, Vermont this 31st day of January, 2011.


                                              ________________________________
                                              Hon. Harold E. Eaton, Jr.
                                              Superior Court Judge




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