NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Defendant Loaded NJ, LLC, improperly designated as Burgers & BBQ, appeals from a June 16, 2016 Special Civil Part order denying its motion to vacate a default judgment, entered in favor of plaintiff MLC Remodeling.
On appeal, defendant argues the trial judge abused his discretion when denying its motion to vacate the default judgment,
On March 1, 2015, plaintiff executed an agreement to furnish remodeling services for defendant's Garwood restaurant. Primarily, plaintiff agreed to remove and replace floor and ceiling tiles, hang doors, install floor molding, and provide sheet rock repair. Defendant refused to provide payment, asserting the work was substandard, improperly performed, and defective.
Plaintiff filed notice of intent to record a construction lien, followed, thereafter, by its complaint seeking payment of the outstanding contract balance of $11,085. Defendant received the complaint, which included the standard summons listing the date to file an answer as February 29, 2016. Defendant employed counsel, who sent correspondence offering to resolve all claims for $1000. The letter stated defendant's offer was good for seven days and expired on March 4, 2016, at which time defendant would file an answer and counterclaim.
Counsel asserts neither plaintiff nor its representative responded to defendant's proposal. Nevertheless, defendant took no steps to submit responsive pleadings. Plaintiff's counsel states she sent a facsimile transmission on behalf of plaintiff rejecting the proposal on March 2, 2016.
Because the deadline to respond to plaintiff's complaint passed, the court entered default and plaintiff apparently sought entry of default judgment. Final judgment was filed on March 4, 2016.
The trial judge rejected defendant's claims of miscommunication with his client as justification to vacate the judgment. He determined the facts did not meet the excusable neglect standard required by
On appeal, defendant argues the trial judge abused his discretion by refusing to recognize "a series of miscommunications" between client and counsel as sufficient grounds to vacate a default judgment, which must be granted liberally. Further, defendant contends the judge misapplied
The Court has instructed the rule is "designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case."
We defer to a trial court's decision, which will not be reversed unless it results in a clear abuse of discretion.
Entry of judgment in a Special Civil Part matter is governed by
"Unlike the rules governing default judgments in other civil cases,
We turn to the question of whether the judge properly exercised discretion in denying defendant's motion to vacate the default judgment, which requires a defendant seeking to reopen a default judgment to show excusable neglect; that is, "the neglect to answer was excusable under the circumstances and . . . a meritorious defense."
Trial courts are instructed to "view `the opening of default judgments . . . with great liberality,' and should tolerate `every reasonable ground for indulgence . . . to the end that a just result is reached[,]'"
The notion postulated on behalf of defendant suggests counsel expected to hear from his adversary before he needed to act. Defense counsel asserts "mistake, inadvertence, surprise, and excusable neglect are read together under [
Here, plaintiff sought payment beginning in March 2015. Correspondence between counsel and the parties shows neither was interested in walking away from their respective claims. Even the letter sent offering to resolve all disputes for $1000, clearly advised the offer was extended for one week, after which the matter would be contested. We find no support for the claim plaintiff acted to mislead defendant or suggest defendant need not respond to the complaint because plaintiff was considering the offer.
Counsel's utter failure to advance his client's cause resulted in entry of a final judgment. Counsel did not secure an extension to file an answer, despite the streamlined procedures employed by the Special Civil Part. Rather, he allowed the deadline to respond to plaintiff's complaint to come and go without even a phone call to his adversary to protect defendant's rights to challenge the demands by plaintiff. In viewing the record liberally, we discern the absence of even an arguably valid excuse for missing the date to respond to plaintiff's complaint.
We remain mindful "[w]here either the defendant's application to re-open the judgment or the plaintiff[`s] proofs presented at the proof hearing raise sufficient question as to the merits of plaintiffs' case, courts may grant the application even where defendant's proof of excusable neglect is weak."
Essentially, defendant challenges the amount due; there is no dispute plaintiff was hired to provide designated services. On this issue, counsel failed to provide this court with all evidence considered by the trial judge. Without plaintiff's proofs filed to secure the judgment, we are unable to review their sufficiency to support a finding of the amount due.
Balancing "the broad parameters of a court's discretion to grant relief . . . under subsection (f)" with "the importance of the finality of judgments," we cannot conclude defendant has presented the required "truly exceptional circumstances" to allow the final judgment be set aside, despite the absence of excusable neglect.