NOT FOR PUBLICATION WITHOUT THE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-4888-15T1
MLC REMODELING,
Plaintiff-Respondent,
v.
LOADED BURGERS & BBQ,
Defendant-Appellant.
_______________________________
Submitted June 8, 2017 – Decided July 14, 2017
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No.
DC-437-16.
DiRienzo, DiRienzo & Dulinski, P.A., attorneys
for appellant (Joseph DiRienzo, on the brief).
Respondent has not filed a brief.
PER CURIAM
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.1 Judgment for plaintiff was entered on
March 4, 2016, after defendant failed to timely respond to
plaintiff's complaint seeking payment alleging breach of contract.
Through counsel, defendant offered to settle the differences
between the parties, but took no steps to extend the time to file
an answer or file an appearance to contest the action.
On appeal, defendant argues the trial judge abused his
discretion when denying its motion to vacate the default judgment,
see R. 4:50-1, and seeks an order allowing the parties to litigate
the controversy. We are unpersuaded and affirm.
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
1
The body of the order is dated June 16, 2016, but the document
is file-stamped May 12, 2016, which we presume was an error.
2 A-4888-15T1
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,
2016.2 On April 28, 2016, defendant received plaintiff's
information subpoena and defendant moved to vacate the default
judgment. Following argument on the motion and plaintiff's
opposition, the judge denied defendant's motion on June 16, 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
2
Defendant has chosen not to provide us with copies of
plaintiff's application for default judgment, with any attached
proofs. The documents are available in the Special Part File, and
should have been included in appellant's appendix. R. 2:6-1(a)(1).
Siwiec v. Fin. Res., Inc., 375 N.J. Super. 212, 217 (App. Div.
2005).
3 A-4888-15T1
neglect standard required by Rule 4:50-1. Further, concluding
defendant was legally incorrect, the judge rejected defendant's
procedural challenge, which suggested default judgment may not be
entered unless preceded by service of a filed notice of request
to enter default. Rather, relying on Rule 6:6-3, the judge noted
Special Civil Part procedures allow the court to automatically
enter default when a timely answer is not submitted, as stated in
the court issued summons. Thereafter, plaintiff properly
requested entry of final judgment.
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 Rule
4:50-1, by not considering defendant's meritorious defenses and
counterclaim.
Rule 4:50-1 "governs an applicant's motion for relief from
default when the case has proceeded to judgment." US Bank Nat.
Ass'n v. Guillaume, 209 N.J. 449, 466 (2012). Once the court has
entered a default judgment, relief from the judge must satisfy one
of the following reasons:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
4 A-4888-15T1
judgment or order and for which by due
diligence could not have been discovered in
time to move for a new trial under R. 4:49;
(c) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (d)
the judgment or order is void; (e) the
judgment or order has been satisfied, released
or discharged, or a prior judgment or order
upon which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
[R. 4:50-1.]
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." Guillaume,
supra, 209 N.J. at 467 (quoting Mancini v. EDS, 132 N.J. 330, 334
(1993)).
We defer to a trial court's decision, which will not be
reversed unless it results in a clear abuse of discretion. See
DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009). An abuse
of discretion results "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Iliadis v. Wal-Mart Stores,
Inc., 191 N.J. 88, 123 (2007) (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)).
5 A-4888-15T1
Entry of judgment in a Special Civil Part matter is governed
by Rule 6:6-3(a), which provides, in pertinent part:
If the plaintiff's claim against a defendant
is for a sum certain or for a sum that can by
computation be made certain, the clerk on
request of the plaintiff and on affidavit
setting forth a particular statement of the
items of the claim, the amounts and dates, the
calculated amount of interest, the payments
or credits, if any, the net amount due, and
the name of the original creditor if the claim
was acquired by assignment, shall enter
judgment for the net amount and costs against
the defendant . . . .
"Unlike the rules governing default judgments in other civil
cases, R. 4:43-2, the rules governing default judgments in the
Special Civil Part, R. 6:6-3(c), do not specifically require that
a defendant receive notice of a proof hearing." Siwiec, supra,
375 N.J. Super. at 218.3 Accordingly, we reject defendant's claim
of procedural error.
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
3
"The rule provides that, other than notice to the guardians
of minors and incapacitated persons, which is mandated, notice to
the defendant of an application for default judgment is only
required if the judge so directs." Ibid. (citing R. 6:6-3(c)).
6 A-4888-15T1
meritorious defense." Morales v. Santiago, 217 N.J. Super. 496,
501 (App. Div. 1987) (quoting Marder v. Realty Const. Co., 84 N.J.
Super. 313, 318 (App. Div. 1964), aff'd, 43 N.J. 508 (1964)).
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[,]'" Mancini, supra, 132 N.J. at 334 (quoting
Marder, supra, 84 N.J. Super. at 319). However, it is well-
established a defendant seeking relief under R. 4:50-1, must show
the court something more than mere good cause. Id. at 334-35.
Excusable neglect is carelessness "attributable to an honest
mistake that is compatible with due diligence or reasonable
prudence." Id. at 335. We find both lacking here.
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 [Rule] 4:50-1, as
encompassing situations where a party, through no fault of its
own, engages in erroneous conduct on a material point in the
litigation." The statement is factually unsupported and legally
erroneous.
Here, plaintiff sought payment beginning in March 2015.
Correspondence between counsel and the parties shows neither was
7 A-4888-15T1
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. See
Ballurio v. Campanaro, 30 N.J. Super. 548, 551 (App. Div. 1954)
("[A] default judgment will not be reopened on the mere ground of
neglect or inadvertence. To justify the vacation of a default
judgment, there must be factual proof that the neglect or
inadvertence is actually excusable.").
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
8 A-4888-15T1
plaintiffs' case, courts may grant the application even where
defendant's proof of excusable neglect is weak." Siwiec, supra,
375 N.J. Super. at 220. Yet, these facts at hand do not support
evidence suggesting default judgment be vacated pursuant to Rule
4:50-1 (a) through (e). Turning to the final reason, stated in
Rule 4:50-1(f), which allows consideration, in the interests of
justice, of "any other reason justifying relief from the operation
of the judgment or order[,]" we also conclude defendant's position
is not supported.
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. R. 2:6-1(a)(1). Also,
defendant's certification and the accompanying unexplained
photographs, filed to vacate the default judgment, do not allow
us to weigh defendant's claim of a colorable defense.
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
9 A-4888-15T1
neglect. Baumann v. Marinaro, 95 N.J. 380, 395 (1984). We
conclude the judge did not abuse his discretion in denying
defendant's motion.
Affirmed.
10 A-4888-15T1