Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3730-24 EVERLASTING STRENGTH MINISTRIES, INC., Plaintiff-Respondent, v. BRIAN NOGIEWICH, INTEGRITY BUILDER, and I&B ENTERPRISING, INC., Defendants-Appellants. __________________________ Argued September 29, 2026 – Decided October 21, 2026 Before Judges Firko and Vanek. On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-000012-24. Louis Giansante argued the cause for appellants (Giansante & Associates, LLC, attorneys; Louis Giansante, of counsel and on the briefs). Robert B. Eyre argued the cause for respondent (Foehl & Eyre, PC, attorneys; Robert B. Eyre, on the brief). PER CURIAM Defendants Brian Nogiewich, Integrity Builder, and I&B Enterprising appeal from a June 11, 2025 order denying their motion to vacate a default judgment entered in favor of plaintiff Everlasting Strength Ministries, Inc. (ESM). We affirm. I. In June 2022 ESM a New Jersey religious nonprofit corporation and public charity, was introduced to Nogiewich who represented himself as Integrity Builder—an established "contracting entity" suitable to conduct repairs on the church. ESM's complaint alleges that Integrity Builder is a trade name of Nogiewich, I&B Enterprising, Inc. (I&B) owns Integrity Builder and I&B is the only entity that could obtain a New Jersey contractor's license. On July 18, 2022 and October 26, 2022, ESM entered into construction contracts with Integrity Builder for the necessary repairs. However, despite making substantial payments, only minimal work was performed under the agreements. ESM claims Nogiewich operated under the trade name Integrity Builder and the "sham corporation" I&B to induce it to enter the construction agreements and pay $116,070.00 in now unaccounted-for charitable funds for the repairs. A-3730-24 2 ESM asserts that Nogiewich stalled the project, falsely claiming that the municipal construction department had required changes to the plan. Ultimately, the project was not completed by the December 20, 2022 deadline, and ESM alleges Nogiewich continued to delay until March 2, 2023, when he admitted he had not been truthful about the project's status. On March 25, 2023, ESM demanded an accounting and a refund of the amounts paid. Nogiewich provided neither, and ESM canceled the contracts on April 14, 2023. Despite ESM's further demands through counsel in August and September 2023, it still received neither an accounting nor a refund. On February 22, 2024, ESM filed a Law Division complaint against defendants Nogiewich, Integrity Builder and I&B, 1 asserting causes of action for an accounting (against Nogiewich and Integrity Builder); fraud, breach of fiduciary duty, conversion and violation of the Consumer Fraud Act (the CFA), N.J.S.A. 56:8-1 to -233 (against Nogiewich only); and alter ego liability (against Integrity Builder and I&B), stemming from contracts for repairs to its church facility. On March 14, 2024, ESM filed proofs of service of the complaint on all 1 We refer to Nogiewich, Integrity Builder and I&B collectively as "defendants." A-3730-24 3 defendants with the court reflecting a March 8 service date. The process server's affidavit of service states Nogiewich, Integrity Builders and I&B Enterprising were all served at "48 Sunflower Lane, Toms River, NJ" and that the name of the person served on behalf of Integrity Builders and I&B Enterprising was "Brian Nogiewich, Owner, Left a copy with a person authorized to accept service, e.g. managing agent, registered agent, etc." When defendants failed to answer ESM's complaint, the clerk entered default against them on May 28, 2024. ESM moved for entry of default judgment against Nogiewich and Nogiewich doing business as Integrity Builder for $116,070.00, and $348,210.00 in CFA treble damages against Nogiewich, with vicarious liability imposed against Integrity Builder and I&B, for the reasons set forth by counsel in an accompanying brief. On August 27, 2024, the court granted ESM's motion and entered the requested default judgment based on ESM's submissions, severing the remaining claims pursuant to Rule 4:38-2 "to allow [p]laintiff to proceed with discovery and trial of other disposition before th[e] court. " On May 2, 2025, defendants jointly filed a Rule 4:42-2 motion to vacate the default judgment. ESM opposed the motion. Defendants argued service was never properly effectuated under Rule 4:4-4, claiming Nogiewich was not the A-3730-24 4 registered agent authorized to accept service on behalf of I&B and Integrity Builder. Instead, defendants argued that Anna Nogiewich, his mother, was the proper recipient, as she is the sole shareholder and registered agent of I&B Enterprising. The New Jersey business registration document defendants provided shows I&B's authorization to do business in New Jersey was revoked by the State on February 16, 2024. No business records for Integrity Builder were provided and, instead, defendants only submitted a printout from Integrity Builder's own website which represents that it is owned by I&B. Defendants did not submit any factual certifications pursuant to Rule 1:6- 6 contesting Nogiewich's acceptance of service on behalf of Integrity Builder and I&B or his relationship to those entities. ESM submitted a certification from process server, Jessica Murphy, documenting her three attempts to serve defendants with process before accomplishing service when Nogiewich stepped out of his vehicle right outside the business's registered address at approximately 6:25 A.M. on March 8, 2024. Before Nogiewich walked into the house, Murphy told him the documents were for him, Integrity Builder and I&B. Nogiewich did not object to accepting the documents for Integrity Builder and I&B. Defendants asserted they were not served with the default judgment that was entered within the seven days set forth by the court. Although ESM A-3730-24 5 admitted it did not serve defendants within seven days, it represented it had not taken efforts to collect on the judgment and did not object to the timing of defendants' motion. On June 11, 2025, the court entered an order denying defendants' motion to vacate the default judgment. In its written statement of reasons, the court considered the judgment interlocutory because the other claims had been severed and, although stating it was applying the standard governing reconsideration of interlocutory orders under Rule 4:42-2 (b), found the motion untimely under Rule 4:49-2. The court also ruled on the merits of the motion, finding defendants did not establish insufficient service of process and any meritorious defense. Defendants argue on appeal the order denying their motion should be vacated because it was improperly deemed untimely, service of the summons and complaint was defective as to Integrity Builder and I&B Enterprising, and the court should have held a proof hearing before entering the default judgment. ESM argues all three defendants had been properly served, any mistaken application of the reconsideration rules was harmless because the motion judge properly considered the substance of defendants' arguments and no proof hearing was necessary. ESM posits the default judgment was properly entered A-3730-24 6 based on the proofs in the record and defendants' motion to vacate was properly denied because they did not establish lack of service or any other right to relief. We address the parties' arguments in turn. II. We first address the standards of review which guide our analysis. Although "courts have liberally exercised the power to vacate default judgment[s] 'in order that cases may be decided on the merits,'" BV001 REO Blocker, LLC v. 53 W. Somerset St. Props., LLC, 467 N.J. Super. 117, 123 (App. Div. 2021) (quoting Nowosleska v. Steele, 400 N.J. Super. 297, 303 (App. Div. 2008)), the trial court's determination "warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." U.S. Nat'l Bank Ass'n v. Guillame, 209 N.J. 449, 467 (2012); BV001 REO Blocker, 467 N.J. Super. at 124 (citing Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)); Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994) ("[A] decision granting or denying an application to open a judgment will be left undisturbed unless it represents a clear abuse of discretion."). Orders deciding motions for reconsideration under Rules 4:49-2 and 4:42- 2 are likewise reviewed for abuse of discretion. In re Est. of Jones, 477 N.J. A-3730-24 7 Super 203, 216 (App. Div. 2023). "An abuse of discretion arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)) (internal quotations omitted). However, the trial court's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Summit Plaza Assocs. v. Kolta, 462 N.J. Super. 401, 410 (App. Div. 2020). III. Although the court mistakenly applied the twenty-day deadline in Rule 4:49-2 to defendants' motion for reconsideration of the interlocutory default judgment rather than the Rule 4:42-2 standard applicable to interlocutory orders, it nonetheless considered the motion on its merits. Because defendants were not prejudiced, we decline to grant relief. Rule 4:49-2 "applies only to motions to alter or amend final judgments and final orders, and does[ not] apply when an interlocutory order is challenged." Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021) (emphasis in original). Rule 4:49-2 sets forth that "a motion for rehearing or A-3730-24 8 reconsideration seeking to alter or amend a judgment or final order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it." Rule 4:42-2, governing reconsideration of interlocutory orders, employs a "much more liberal approach," both procedurally and substantively, by allowing review at any time "in the interests of justice." Lawson, 468 N.J. Super. at 134. Trial-level courts in New Jersey thus have "complete power over [their] interlocutory orders and may revise them when it would be consonant with the interests of justice to do so." Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983). We have previously concluded that when a judge confuses Rules 4:42-2 and 4:49-2, a mere misapplication of the procedural deadline is not enough to warrant reversal in cases where the motion is addressed on its merits. See Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 97 (App. Div. 2008). Discerning no prejudice to defendants as a result of the harmless error, we turn to our review of the order denying their motion to vacate default judgment. IV. Based on our review of the record and prevailing law, we are unpersuaded the default judgment is void for lack of service on Integrity Builder and I&B A-3730-24 9 Enterprising. "A motion to vacate a default judgment 'should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.'" Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 99 (App. Div. 1998) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div. 1963)). Any doubts regarding an application to vacate a default judgment "should be resolved in favor of the parties seeking relief." Mancini, 132 N.J. at 334 (citing Arrow Mfg. Co. v. Levinson, 231 N.J. Super. 527, 534 (App. Div. 1989)). "When 'a default judgment is taken in the face of defective personal service, the judgment is [generally] void.'" Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003) (quoting Rosa v. Araujo, 260 N.J. Super. 458, 462 (App. Div. 1992)) (alteration in original). While required to reopen a default judgment under the more traditional Rule 4:50-1(a)2 motion, there is no requirement for the movant to demonstrate excusable neglect or a meritorious defense in cases where service of process is at issue. See, e.g., 2 "On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect . . . ." A-3730-24 10 Jameson, 363 N.J. Super.at 425-26; Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 98 (2012); Midland Funding LLC v. Albern, 433 N.J. Super. 494, 501 (App. Div. 2012); see also Pressler & Verniero, cmt. on R. 4:43-2 ("[T]he meritorious defense showing [for setting aside a default or default judgment] cannot be required as a matter of due process if the defendant was not properly served with process."). The purpose underpinning the rules governing service of process is well - settled. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is 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." O'Connor v. Altus, 67 N.J. 106, 126 (1973) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). Accordingly, "the court rules [that] describe the manner in which process is to be served must be read in the context of effecting due process." Rosa, 260 N.J. Super. at 463. Although the constitutional requirement of due process "contemplates effective service" so as to provide defendants with proper notice, it "does not mandate perfect service." Coryell LLC v. Curry, 391 N.J. Super. 72, 81 (App. Div. 2006). Service upon a corporate entity is governed by Rule 4:4-4(a)(6), which A-3730-24 11 provides in relevant part that a corporation can be served by delivering a copy of the summons and complaint on: any officer, director, trustee or managing or general agent, or any person authorized by appointment or by law to receive service of process on behalf of the corporation, or on a person at the registered office of the corporation in charge thereof, or, if service cannot be made on any of those persons, then on a person at the principal place of business of the corporation in this State in charge thereof, or if there is no place of business in this State, then on any employee of the corporation within this State acting in the discharge of his or her duties, provided, however, that a foreign corporation may be served only as herein prescribed subject to due process of law. In O'Connor, our Court adopted the federal two-pronged test for determining whether service upon someone not ordinarily competent to receive service on behalf of a corporation is valid. See 67 N.J. at 128; Trs. of Loc. 478 Trucking & Allied Indus. Pension Fund v. Baron Holding Corp., 224 N.J. Super. 485, 490 (App. Div. 1988) (noting the Court adopted the test from American Football League v. National Football League, 27 F.R.D. 264, 269 (D. Md. 1961)). Under the O'Connor test, the representative served (1) "should be so integrated with the organization that he will know what to do with the papers " and (2) "should stand in a position as to render it fair, reasonable and just to imply the authority to receive service." O'Connor, 67 N.J. at 128. A-3730-24 12 Citing Sobel v. Long Island Entertainment, 329 N.J. Super. 285, 293-94 (App. Div. 2000), defendants argue "[a] substantial deviation from the service of process rules requires relief from a default judgment, even if the defendant had actual knowledge of the pendency of the suit by other means." However, here we discern no error with the motion judge's finding that Nogiewich could accept service for Integrity Builder and I&B Enterprising because he "is intimately familiar with these entities, and the operations thereof." Defendants do not assert defective service on Nogiewich individually. However, they contend the process server made no attempt to serve I&B's registered agent and incorrectly certified Brian Nogiewich was its authorized representative. As to Integrity Builder, defendants claim Brian Nogiewich 's authority to accept service was "less than clear." Pointing to Integrity Builder's website rather than any business registration records or rule-compliant certifications, defendants contend Integrity Builder is owned by I&B and, therefore, is not Brian Nogiewich's trade name as the motion judge found. Nonetheless, service upon Brian Nogiewich constituted effective service upon I&B Enterprising. I&B Enterprising is a corporation registered to do business at an address Brian Nogiewich has also utilized. While Anna Nogiewich is listed as registered agent for I&B Enterprising, service on Brian A-3730-24 13 Nogiewich is effective under our jurisprudence where the only competent evidence in the record demonstrates he accepted service at the address listed for himself and the corporation without objection. Service upon Nogiewich satisfies the first prong of the O'Connor test because it is clear from the circumstances that Nogiewich would "know what to do with the papers." See O'Connor, 67 N.J. at 128. Not only is Nogiewich the registered agent's son, but he was also served at I&B's last registered business address. See O'Connor, 67 N.J. at 128 (finding receptionist competent to receive service because she was "integrated with the small organization [that] had the equitable interest in the premises"); Trs. of Loc. 478 Trucking, 224 N.J. Super. at 489-90 (finding secretary could effectively receive summons for company located at the same address as her employer where she indicated she was authorized to do so). Service of I&B through Nogiewich also meets the second prong, because it was "fair, reasonable and just to imply" that Nogiewich could accept service, as he was located at I&B Enterprising's address, knew he was accepting service as to all three defendants, and willingly did so without objection. See, e.g., O'Connor, 67 N.J. at 128. Defendants argue that Integrity Builder is not the trade name of Brian Nogiewich as the trial court found, but rather is a subsidiary of I&B A-3730-24 14 Enterprising. As the judge determined, there is no evidence in the record other than a webpage indicating that Integrity Builder is a "subsidiary" of I&B. Thus, the record lacks competent evidence supporting a conclusion that Integrity Builder is not a trade name for Brian Nogiewich, especially where both business entities and the individual are all located at the same address and Nogiewich held himself out to ESM as Integrity Builder. V. Although defendants' motion relied on Rule 4:42-2, defendants invoke Rule 4:50-1(c) on appeal, arguing "the default judgment could have been set aside due to the errors of the process server (who falsely certified under oath to this Court facts it [sic] knew to be untrue)." We are unconvinced. To vacate an order under Rule 4:50-1(c), a party must prove "fraud . . . , misrepresentation, or other misconduct of an adverse party." R. 4:50-1(c). "In order to prove equitable fraud, a party must demonstrate a material misrepresentation made with intent that it be relied on, coupled with actual detrimental reliance." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citing Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619, 624 (1981)). We reject defendants' newly minted argument that the process server committed fraud by certifying she had properly served I&B Enterprising, and A-3730-24 15 thus she "induced [the court] to enter final judgment by default against the defendants." Rule 4:50-1(c) only affords relief for "fraud . . . of an adverse party." R. 4:50-1(c). Professional process servers, do "not hav[e] a direct interest in the litigation" and are not "adverse parties." Pressler & Vernieri, cmt. on R. 4:4-4. Thus, we decline to grant relief based on defendants' Rule 4:50-1(c) argument. VI. We discern no error in the trial court's entry of default judgment without a proof hearing pursuant to Rule 4:43-2(b). Courts generally hold a proof hearing where damages are unliquidated or not for a "sum certain" before entering default judgment. See R. 4:43-2(b)3; 3 "b. By the court. In all other cases, except Family Part matters recognized by Part V of these Rules, the party entitled to a judgment by default shall apply to the court therefor by notice of motion pursuant to R[ule]. 1:6 . . . If, to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court, on its own motion or at the request of a party on notice to the defaulting defendant or defendant's representative, may conduct such proof hearings with or without a jury or take such proceedings as it deems appropriate. . . ." A-3730-24 16 Chakravarti v. Pegasus Consulting Grp., 393 N.J. Super. 203, 201-11 (App. Div. 2007) (citing Beech v. Forest Hills, Inc. v. Morris Plains, 127 N.J. Super. 574, 580-82 (App. Div. 1974)). "'Liquidated damages' are damages the amount of which has been made certain and fixed either by the act and agreement of the parties or by operation of law to a sum which cannot be changed by the proof." Sema v. Automall 46 Inc., 384 N.J. Super. 145, 153 (App. Div. 2006) (quoting 22 Am. Jur. 2d Damages §489 (2003)). Defendants argue ESM should have "presented adequate proof of liability and . . . damages at a proof hearing," citing to T&S Painting v. Baker Residential, 333 N.J. Super. 189 (App. Div. 2000). In T&S Painting, after the defendant partnership sought to set aside a judgment for an amount remaining under a construction subcontract, we remanded the case because the plaintiff 's certification as to the amount of damages was not accompanied by the necessary "specific contentions" to support the clerk's entry of a default judgment. Id. at 193. In contrast here, we discern no error in the court's entry of default judgment on ESM's motion without a proof hearing. ESM established it was entitled to a "sum certain" and submitted a certification of its damages along with, inter alia, bank statements, checks and schedules evidencing the payments A-3730-24 17 made to defendants. ESM's documents establish it made payments of $20,000 for truss materials, $24,570 for roof materials, $15,000 for sprinklers, $20,500 for roofing, and $36,000 for the sanctuary. ESM's motion expressly sought the default judgment based on these proofs, which the court found sufficient. Because the default judgment ESM sought was "made certain by mathematical calculation from known factors," namely documented payments to defendants, they were not the kind of "uncertain" damages that can only be determined by the "wise discretion" of a judge or jury at a proof hearing. See Sema, 384 N.J. Super. at 153 (quoting Schettino v. Roizman Dev., Inc., 158 N.J. 476, 486-87 (1999)). Therefore, the court was not required to hold a proof hearing on the calculation of damages under Rule 4:43-2(b). Defendants' reliance on Allen v. V&A Bros., Inc., 208 N.J. 114, 131 (2011), for its argument that the court erred in holding Nogiewich individually liable under the CFA for acts of the corporate entities is misplaced. It is well- established that liability can be imposed under the CFA for "affirmative acts of misrepresentation to a consumer." Allen, 208 N.J. at 131 (citing Gennari v. Weichert Co. Realtors, 148 N.J. 582, 608-10 (1997)). Such individual liability claims survive even if the person had been acting through a corporation at the time. Id. at 131-32. In addition, "nothing in the CFA or the relevant precedents A-3730-24 18 suggests that in the absence of veil-piercing the individual or officer will be shielded from liability for the CFA violation he or she has committed." Id. at 133. Thus, defendants' assertion that the CFA shields individuals from liability for corporate actions in which they participated is incorrect, especially in light of the contentions that Nogiewich personally made fraudulent misrepresentations. As ESM establishes, the CFA claim was raised against Nogiewich individually for his "numerous confusing, misleading, and deceptive acts and practices in the sale of services and goods for use and consumption by ESM on the Project." Thus, Nogiewich has not established the entry of default judgment against him was contrary to prevailing law. VII. For purposes of thoroughness, we note that because defendants sought to be relieved from the default judgment, which necessarily contemplated vacating default, their failure to submit a proposed answer in accordance with Rule 4:43- 3 rendered their motion procedurally defective. See, e.g., N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J. Super. 354, 360 (App. Div. 2009). To the extent we have not addressed any of defendants' remaining arguments, we conclude they lack sufficient merit to warrant discussion in a A-3730-24 19 written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-3730-24 20