MLC REMODELING VS. LOADED BURGERS & BBQ(DC-437-16, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

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