April 30, 1998
CHIEN HUI CHENG, APPELLANT,
MEI WAH AU, AND CHUN KING CHEUNG AU, APPELLEES.
APPEAL FROM THE SUPERIOR COURT, EVELYN C. QUEEN, J.
Before Terry and King, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: King, Associate Judge:
After a default judgment was entered against him in this civil action claiming a breach of the terms of a lease, Chien Hui Cheng moved to vacate, contending that service of process upon him was faulty. Because the trial court erred in ruling that service was proper on the grounds stated by the court in its order, we reverse and remand for further proceedings on the motion to set aside the default judgment.
The initial complaint was filed on August 3, 1995, and served upon Cheng's wife at their place of business on August 31, 1995. Thereafter, on October 6, 1995, an amended complaint *fn1 was filed, and according to the affidavit of the process server, the "Initial Order, Summons, [and] Complaint" *fn1 were served upon Cheng by leaving a copy of each document at his place of residence on October 9, 1995, "with Ms. Cheng, Wife, a person of suitable age and discretion who resides therein with [Cheng]." After Cheng did not respond to the complaint, the trial court entered an order granting a default, scheduled an ex parte proof hearing for a later date, and sent a copy of the order to Cheng at his home address.
On April 12, 1996, after the ex parte hearing, the court entered judgment for a sum certain plus interest; a copy of the judgment was sent to Cheng at his home address. Claiming that he first learned of the judgment entered against him in October 1996 when the plaintiff commenced collection efforts, Cheng filed the instant motion to vacate in January 1997. The motion was accompanied by a verified answer denying liability, and affidavits by Cheng and his wife relating to the service of process.
In the wife's affidavit she averred that she was not at her place of residence at the time the process server claimed he had left the documents with her. She maintained that she had departed for work an hour and a half before the reported time of service and did not return home until some five hours after she had left. She also averred that the person described by the process server was not her and "is unknown to me."
In a brief written order the trial court denied the motion, observing that the wife's affidavit was consistent with her being at the place of business on August 31, 1995, and that the trial court's order granting the default was mailed to the home address and not returned. The trial court, however, made no finding regarding the claimed service upon the wife at the place of residence on October 9, 1995.
Pursuant to Super.Ct.Civ.R. 4(e)(2) (1997), service in these circumstances may be made
by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of [710 A2d Page 879]
abode with some person of suitable age and discretion then residing therein. . . .
By the terms of this provision, service upon the wife at the place of business was not adequate. Thus, the trial court erred in finding service was proper on that ground. Appellee does not now contend otherwise.
Appellee does contend, however, that the trial court has jurisdiction due to the claimed service upon the wife at the residence on October 9, 1995, pursuant to the provisions of Rule 4 quoted above. In response, Cheng challenges the underlying facts in the process server's affidavit as expressed in the wife's affidavit. Specifically, although he concedes that service would be proper if made upon the wife or someone else of suitable age and discretion residing at the residence, Cheng maintains that he can show that no such service ever occurred. Although that claim was presented to the trial court, it was not considered and the court made no findings with respect to it. Therefore, we must remand the case *fn2 to the trial court for further proceedings in order to resolve this issue. *fn2