NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Defendants, St. Clair Kitchen & Home, L.L.C. (St. Clair) and Daniel Woltag,
Plaintiff Scott C. Freeman filed a complaint against defendants in January 2015, asserting they violated an agreement for renovation services. After retaining counsel, plaintiff filed an amended complaint in April 2015. The amended complaint alleged defendant St. Clair owed plaintiff $9305 for labor and services pursuant to their agreement, and claimed Mr. Woltag, who owned the building being renovated, was unjustly enriched and was liable for this amount as well. Defendants filed an answer and counterclaim on July 6, 2015.
At a September 9, 2015 hearing, the judge set a trial date of October 19, 2015. Only defendants' counsel, not defendants, was present at that hearing. On September 18, 2015, a second judge issued an order disqualifying defendants' counsel.
Defendants' counsel informed Ms. J. Antoinette Hughes Frasier, principal for St. Clair, of the October 19, 2015 trial date and informed her defendant would need a new attorney. Counsel also advised Mr. Woltag about his disqualification and the new trial date via email on October 1, 2015. In the email, counsel noted, "I have not received any official notification as to a new date. I have attached the case detail from the court's website and it indicates the case has been `disposed.' I don't know why it says this."
Ms. Frasier went to the courthouse on October 14, 2015, to confirm the trial date. A court representative told Ms. Frasier there was no information about the case, and the order to withdraw counsel had not been entered. Mr. Woltag called the courthouse on October 16, 2015, and a representative told him there was no trial date scheduled. The representative suggested calling the judge's chambers, but disqualified counsel told defendants not to do so. Neither Ms. Frasier nor Mr. Woltag appeared on October 19, 2015.
Plaintiff's counsel appeared on October 19, 2015, before the first judge who previously conducted the September 9 hearing. Plaintiff's counsel told the court,
However, defendants submitted certifications attesting plaintiff only attempted to contact them one time about the hearing by leaving a phone message reminding defendants to find new counsel.
Plaintiff moved for entry of default against defendants and dismissal of defendants' counterclaims. The matter appeared on the judge's schedule but not on the court's schedule. Before entering default against defendants, the judge stated the following:
The judge granted default based on defendants' failure to appear and held the proof hearing on plaintiff's damages. The judge then entered judgment for plaintiffs for $14,527 and dismissed defendants' counterclaims.
On October 21, 2015, the judge who issued the September 18, 2015 order entered a consent order, disqualifying defendants' original counsel and requiring defendants to retain new counsel by October 19, 2015, which had already passed.
On October 29, 2015, Ms. Frasier wrote to the judge who entered the judgment against defendants requesting the default be vacated. On November 10, 2015, Ms. Frasier filed a motion to vacate the judgment, which the court denied on December 4, 2015, due to Ms. Frasier's lack of standing. Defendants finally retained new counsel, and moved to vacate the default judgment, pursuant to
After receiving the transcript from the October 19, 2015, hearing, defendants moved for reconsideration on February 25, 2015. The second judge denied the motion on April 1, 2016, without oral argument or any written findings. This appeal followed.
We review denial of a motion to vacate a judgment under
First, we note defendants' appeal is properly before this court. Defendants' motion to vacate the judgment pursuant to
Next, defendants argue the trial court abused its discretion by denying their motion to vacate the default judgment. We agree and reverse.
Here, the trial court abused its discretion by omitting defendants' reasons for failing to appear from consideration. Defendants presented compelling evidence of excusable neglect. The first judge specifically noted the trial was not on the court calendar; the judge also noted it was likely defendants called the courthouse and a representative told them there was nothing scheduled for that date, which is precisely what defendants assert happened. Additionally, based on advice of their previous counsel, defendants did not call the judge's chambers to inquire about the trial date.
Notwithstanding plaintiff's counsel leaving defendants' former counsel a message, and though the date was scheduled with all counsel present, it is reasonable defendants, without counsel, would not appear after being told by court representatives the matter was not on the court schedule and had been marked "disposed." Defendants spoke with court representatives and made an effort to determine whether they needed to be present on October 19, 2015. Such an error satisfies the standard of excusable neglect, and the trial court abused its discretion by not considering this issue.
Because we find the trial court abused its discretion under
We reverse and vacate the entry of default judgment and order for reconsideration consistent with this opinion. We do not retain jurisdiction.